FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABDELSAYED v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2988 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy but did not Criterion 3001 – he therefore needed to show compelling reasons to not apply Criterion 3001 – Administrative Appeals Tribunal was not satisfied there were compelling reasons not to apply Criterion 3001 – Administrative Appeals Tribunal failed to meaningfully consider a substantial clearly articulated claim and therefore decision of Administrative Appeals Tribunal affected by jurisdictional error – two other grounds of asserted jurisdictional error not established – application for constitutional writs of certiorari and mandamus granted. |
| Legislation: Migration Act 1958 (Cth), ss.65, 348, 359A, 359 AA Migration Regulations 1994 (Cth) |
| Applicant: | ABDEL BERTO SAYEK ABDELSAYED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1619 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 September 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder of Counsel |
| Solicitors for the Applicant: | Gateway Law and Migration Australia |
| Counsel for the First Respondent: | Ms B. Rayment |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court on 28 September 2017 an Amended Application.
The decision of the Second Respondent made on 30 May 2016 affirming the decision of the Delegate of the First Respondent made on 15 January 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa is quashed.
The Second Respondent is to determine according to law the Applicant’s application for review of the decision of the Delegate of the First Respondent made on 15 January 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa or Partner (Residence) (Class BS) (Subclass 801) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1619 of 2016
| ABDEL BERTO SAYEK ABDELSAYED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Egypt aged 35 years, having been…
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- AGLC
- Abdelsayed v Minister for Immigration [2018] FCCA 2988
- Case
- [2018] FCCA 2988
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the delegate had erred in law by failing to properly consider the compelling reasons put forward by the applicant's sponsor, and whether the delegate's adverse assessment of the applicant's immigration history was reasonable and properly taken into account. Specifically, the court had to determine if the sponsor's stated concerns about financial hardship and difficulties in falling pregnant constituted compelling reasons for a waiver, and if these reasons were outweighed by the applicant's immigration history as assessed by the delegate.
Dowdy J reasoned that while the sponsor's statutory declaration did raise concerns about financial difficulties and potential infertility, these were not necessarily "compelling" in the context of Schedule 3 waiver provisions. Crucially, the court noted that the sponsor's earlier statements indicated that the decision to marry and remain in Australia was influenced by advice received from the Department of Immigration regarding the applicant's ability to lodge an application onshore without returning to Egypt. This suggested that the financial and pregnancy concerns raised later were not the primary or sole drivers for the applicant's continued presence in Australia. The delegate's adverse assessment of the applicant's immigration history, which included prolonged periods of unlawful status and the lodging of numerous applications that did not succeed, was found to be a relevant and significant factor that the delegate was entitled to consider. The court concluded that the delegate had not erred in law in their assessment of the compelling reasons and the applicant's immigration history.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
By letter dated 28 October 2015 the Department of the Minister advised the Applicant that he did not meet Criterion 3001 and invited him to advise of any compelling reasons for not applying that Criterion. In response a number of documents were submitted, including a statutory declaration of the sponsor declared on 23 December 2015 (sponsor’s statutory declaration), of which the last two paragraphs deposed as follows:If my husband is returned to Egypt this will be a disaster for us. Financially we will lose a lot and it is already so difficult. My other problem is falling pregnant. I have not yet become pregnant and I have started medical attention for this issue. Our reasons for having Schedule 3 waived are compassionate and humanitarian. If I had received different advice from the department when I had first called them this may have made us decide not to purchase a home.For the sake of us not losing so much financially and for the sake of me being able to maximise my chances of pregnancy I ask that you waive Schedule 3. It may be seen that the compelling reasons put forward in the last paragraph of the sponsor’s statutory declaration relate to financial and possible infertility issues. However, it is relevant that in the earlier part of the sponsor’s statutory declaration at [2] and [3] she had deposed as follows:Initially, I had a lot of problems with my parents agreeing to our marriage especially after people at our church told them horror stories about visa applications failing and then the spouse had to return to Egypt and the waiting time in Egypt for a visa was 2 years. My parents were afraid that I would have to go with Adel to Egypt…I called the department of immigration for advice and they explained that my husband can lodge an application in Australia and not have to go to Egypt. Both my parents and I were relieved with this information and after they saw how much we loved each other they finally agreed to our marriage… I note that the Decision Record of the Delegate gave the following visa application history of the Applicant: On 18 November 2010 you lodged a Protection visa application; and on 30 March 2011 this application was refused. On 18 November 2011 you reviewed this decision with the Refugee review Tribunal; and on 18 November 2011 this was affirmed. On 14 December 2011 you lodged a request for Ministerial Intervention; and on 14 May 2012 this was deemed inappropriate to consider. On 1 May 2013 you lodged a Judicial Review of this decision; and on 8 November 2013 you withdrew this review. On 24 March 2012 you lodged a Protection visa application; and on 7 May 2012 this application was deemed to be section 48b barred. On 20 June 2012 you lodged a Protection visa application; and on 8 August 2012 this application was deemed to be section 48b barred. On 25 June 2012 you lodged a request for Ministerial Intervention; and on 10 August 2012 this was deemed inappropriate to consider. On 19 September 2012 you lodged a further Protection visa application; and on 7 December 2012 this application was deemed to be section 48b barred. On 19 September 2012 you lodged a request for Ministerial Intervention; and on 7 December 2012 this was deemed inappropriate to consider. On 18 January 2013 you lodged a request for Ministerial Intervention; and on 30 January 2013 this was deemed inappropriate to consider. On 15 February 2013 you lodged a further Protection visa application; and on 2 August 2013 this application was deemed to be section 48b barred. On 18 February 2013 you lodged a request for Ministerial Intervention; and on 16 May 2013 this was deemed inappropriate to consider. On 5 December 2013 you lodged a protection visa application; and on 16 May 2014 this application was refused. On 17 June 2014 you lodged a review of this decision with the Refugee review Tribunal; and on 16 April 2015 this decision was affirmed. From 16 December 2011 to 13 February 2012 you did not hold a visa while residing in Australia. From 19 September 2012 to 8 May 2013 you did not hold a visa while residing in Australia. (Protection visa documents)……………I have given weight to your immigration history, namely your long periods of unlawfulness, your failure to depart Australia after being granted a series of Bridging Visa Es on this basis on 21 June 2012, 3 July 2012, 31 July 2012, 21 August 2012 and 4 September 2012, and a series of unmeritorious applications you subsequently lodged that further prolonged your stay in Australia. I consider that, in addition to the circumstances stated in the policy above, it is not the intention of the Schedule 3 waiver to facilitate persons who have chosen to remain unlawfully in Australia; or for those who have deliberately manipulated their circumstances through the lodgement of unmeritorious applications in order to prolong their stay in Australia, while awaiting the circumstances which would allow them to make a partner visa application onshore.