Al Souhmarani v MIBP

[2016] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL SOUHMARANI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2866

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal erred in understanding and applying the waiving of Schedule 3 criteria for “compelling reasons” in cl.820.211(d)(ii) – whether the Tribunal erred by taking into account the statutory purpose of the provision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353, 476.

Migration Regulations 1994, Sch.2 cl.820.211, Sch.3 3001, 3003, 3004.

Cases cited:

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

Monakova v Minister for Immigration & Anor [2006] FMCA 849

Applicant: MOHAMAD AL SOUHMARANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1715 of 2016

Judgment of: Judge Street

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Sydney

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1715 of 2016

MOHAMAD AL SOUHMARANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) with respect to the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2016 affirming the decision of the Tribunal not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of Lebanon and first arrived in Australia on 21 August 2007 on a subclass 572 visa which ceased on 17 November 2008. On 17 November 2008 the applicant was granted a further subclass 572 visa which ceased on 15 March 2009. On 28 July 2009 the applicant was granted a 572 visa which expired on 30 June 2010.  On 30 June 2010 the applicant was granted a 572 visa which expired on 6 September 2012.

3. On 5 July 2011 the applicant was included as a dependant on his former wife’s protection visa application. However, this application was refused on 2 July 2012. On 11 July 2012 the applicant and his former wife lodged a review of the protection visa application with the Refugee Review Tribunal (“the RRT”) and the RRT affirmed the adverse decision on 1 March 2013.

4. On 29 April 2013 the applicant applied for Ministerial Intervention, which was the subject of a “not considered” outcome on 16 March 2014. On 14 April 2014 the applicant and former partner lodged a judicial appeal to the Federal Court, the outcome of which was apparently unsuccessful.

The Delegate’s Decision

1. On 16 February 2015, the applicant applied for a visa on the basis of the applicant’s new sponsor.  On 10 April 2015 the delegate found that the criteria for the grant of the UK Partner (Temporary) (subclass 820) and BS Partner (Residence) visa were not met.

2. The delegate identified that the applicant must meet at the time of application requirements in relation to the Schedule 2 cl.820.211 of the Migration Regulations 1994 (“the Regulations”) by meeting the requirements of one at least of the subclauses (1), (2), (2A), (2B), (3), (4), (5), (6), (7), (8) or (9). The delegate found the applicant did not meet any of those provisions.

3. The delegate, therefore, assessed the application specifically under subclause 820.211(2)(d)(ii) of the Regulations which states that the applicant must satisfy criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.

4. The delegate identified that the last substantive visa held by the applicant ceased on 6 September 2012 and that the applicant accordingly did not meet criterion 3001. The delegate was not satisfied that there were compelling reasons to warrant a waiver of the Schedule 3 requirement of the Regulations.

The Tribunal’s Decision

1. On 14 April 2015 the applicant applied for review. The applicant appeared before the Tribunal on 26 May 2016 to give evidence, together with the applicant’s migration representative, and was given until 10 June 2016 to provide further information.  Further submissions prepared by Counsel were provided to the Tribunal on 16 June 2016.  Those submissions addressed whether it was permissible or appropriate for the Tribunal to consider the circumstances of the applicant’s marriage, given that the marriage had since broken down.

2. The submissions contended that the circumstances of the marriage remain relevant to the waiver of the Schedule 3 requirements of the Regulations and made reference to a decision Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (“Waensila”).

3. The submissions contended that the breakdown of the applicant’s marriage does not render immaterial the applicant’s circumstances at the time of the application. The submission was put that in light of Waensila all the circumstances are relevant, including those at the time of application, and contended that the applicant should be granted a waiver of the Schedule 3 requirements of the Regulations.

4. The Tribunal made reference to the determination of the delegate and to the hearing before the Tribunal at which the applicant was represented by his registered migration agent. The Tribunal made reference to the applicant’s claims and evidence and found that the applicant’s last substantive visa, being his dependent student visa, expired on 6 September 2012. The Tribunal correctly identified that the issue in the present case is whether the applicant meets the Schedule 3 criteria of the Regulations or whether those criteria should be waived.

5. The Tribunal found that the applicant did not meet the Schedule 3 criteria, as the visa application was not made within 28 days of the relevant date and therefore the applicant did not satisfy criterion 3001. It was in those circumstances that the Tribunal correctly identified that it was required to consider whether there are compelling reasons for not applying the criteria.

6. The Tribunal made reference to a decision Monakova v Minister for Immigration & Anor [2006] FMCA 849 (“Monakova”) where, relevantly, a writ was issued apparently on the grounds that the applicant can remain lawfully in Australia until the department competes the processing of her application for an aged parent visa was irrelevant to whether the applicant should be permitted to make an application for a spousal visa in Australia.

7. The Tribunal made reference to Monakova and made reference to the Tribunal reasoning in Monakova that the only way the applicant can obtain a spousal visa is by leaving Australia and incurring the hardships which the Tribunal in Monakova considered are compelling reasons for not requiring her to leave Australia to obtain the spouse visa.  It was in those circumstances that the Court in Monakova there found that the Tribunal had taken into account a consideration which the Regulations did not permit to be taken into account and by doing so committed a jurisdictional error.

8. The Tribunal correctly noted that the waiver was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where they are reasons of a “strongly compassionate” nature. In the course of the reasons in Monakova the Court said as follows at [28] – [31] :-

   28.    The “compelling reasons for not applying those criteria" must be reasons which are relevant to the purpose of the criteria. They must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia. To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration.

   29.    The fact that the applicant can remain lawfully in Australia until the Department completes the processing of her application for an aged parent visa is irrelevant to whether the applicant should be permitted to make an application for a spouse visa in Australia. The applicant is entitled to make an application for a spouse visa. If she left Australia and made the application outside Australia, she would not have to satisfy criteria 3001, 3003 and 3004 and would be granted the visa.

   30.    If she satisfied criteria 3001, 3003 and 3004 she could apply in Australia and would be granted the visa. The Tribunal's reasoning, if correct, means that the only way the applicant can obtain a spouse visa is by leaving Australia and incurring the hardships which the Tribunal considered are compelling reasons for not requiring her to leave Australia to obtain the spouse visa.

   31.    The Tribunal has taken into account a consideration which the regulations do not permit to be taken into account. By doing so it has committed a jurisdictional error.

9. In the present case, the Tribunal made reference to the applicant’s evidence, which effectively was summarised in paragraph 33 in the Tribunal’s reasons by referring to the applicant’s distress at having two failed marriages. No fact was adduced by the applicant identifying any reason why he would suffer hardship by reason of being required to leave Australia to make the further visa application.  It was in those circumstances that the Tribunal asked the applicant’s representative to address the principles identified in Monakova and provide a time for those submissions. 

10. The submissions provided did not address the principles to be extracted from Monakova.  The only principle to be extracted from Monakova is the legitimacy of taking into account the purpose of the regulatory provision in relation to determining whether there are compelling reasons for not applying those criteria. The purpose was correctly identified in Monakova and it is more eloquently summarised by Griffiths J in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 at [54] as follows:-

    The waiver power was obviously intended to be available to deal with cases where there were “compelling reasons” for not putting particular applicants to the hardship of having to leave Australia for that purpose.

11. The Tribunal expressly made reference to the opportunity of the applicant to put forward further evidence or submissions for consideration and the applicant took up the opportunity and put on a statutory declaration. On a fair reading of the Tribunal’s reasons, that opportunity was to address the absence of any identified hardship for the applicant in having to leave Australia to make the application for the protection visa.

12. The Tribunal made reference to the submissions that had been provided and noted that they did not address the principles of Monakova directly. The Tribunal relevantly, made reference to the submissions asserting that:

    The evidence of the applicant’s relationship breakdown is nevertheless relevant for the purpose of the waiver of the schedule 3 criteria relying on Waensila.

13. The Tribunal then stated that it took a different reading of Waensila and said that it does not consider that Waensila engages the principles of Monakova, and that those principles remain binding on the Tribunal.

14. On a fair reading of the Tribunal’s decision, the Tribunal was referring to the legitimacy and relevance of the purpose of the provision providing for consideration of whether there were compelling reasons.  I note in that regard, the observation by reference to Griffiths J in Waensila is also supported by the Explanatory Statement which accompanied the amendment to the Regulations. It relevantly provides as follows:-

    Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

15. The Tribunal then stated that it was not satisfied there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal, accordingly, found that the applicant did not meet cl.820.211(2)(d)(ii) of the Regulations and affirmed the decision under review.

Proceedings Before this Court

1. The grounds of the application are as follows:-

   Ground 1;

   The Tribunal made a jurisdictional error by misunderstanding or misapplying the power to waive the requirements in Sch 3 to the Migration Regulations 1994 (Cth) for “compelling reasons"

   Particulars

   a. The Tribunal followed Manakova v MIMA (2006) FMCA 849 so far as it held that compelling reasons must be relevant to the purpose of permitting the Applicant to apply for a protection visa.

   b. The Tribunal held that, under this criterion, the evidence of the Applicant's relationship breakdowns was not relevant to the existence of compelling reasons.

   c. The Tribunal erred in doing so, as, properly understood, Manakova permitted or even required regard to the circumstances of the Applicant's relationship breakdowns.

2. Mr Jones of Counsel, for the applicant, skilfully submitted that on a fair reading of the Tribunal’s reasons, the Tribunal had excised from consideration the facts identified in paragraphs 27 to 33 of the Tribunal’s reasons in determining whether there were compelling circumstances within cl.820.211(2)(d) of the Regulations. I accept Mr Jones’ submission that if in fact, the Tribunal had excised from its consideration the matters in paragraphs 27 to 33 of the Tribunal’s reasons in determining whether there are compelling reasons, that would reflect an error of law and a misconstruction of the statutory provision.

3. The purpose of the provision is however, a relevant consideration for the Tribunal to take into account. It is patent of the circumstances identified by the Tribunal in relation to the applicant’s two failed marriages that there was nothing adduced before the Tribunal by the applicant that identified any relevant hardship for the applicant in having to leave Australia to make the visa application. The Tribunal made clear that it had provided an opportunity to the applicant to address that matter, not just by submissions but also by adducing further evidence. 

4. I do not accept that the Tribunal excised from its consideration the circumstances identified in paragraphs 27 to 33 of the Tribunal’s reasons in its finding that there are not compelling reasons for not applying the Schedule 3 criteria. On a fair reading, the Tribunal identified that it was relevant to take into account the purpose of the statutory provision and was correct to do so.

5. The Tribunal hearing is not bound by the rules of evidence, as identified in s.353 of the Act. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal’s reference to the applicant’s relationship breakdown and relevance for the purpose of the waiver of the Schedule 3 criteria are consistent with the Tribunal taking into account the applicant’s submissions in relation to that relationship breakdown.

6. The reference by the Tribunal to the principles in Monakova, which the Tribunal identified as binding, is to be understood as a reference on a fair reading of the Tribunal’s reasons to the principle of taking into account the purpose of the statutory provision in determining whether there are compelling reasons. The summary by the Tribunal in paragraphs 25 and 26 of the Tribunal’s reasons in Monakova support that proposition. It is apparent that the Tribunal appreciated that the applicant could remain lawfully in Australia until the Department completed the processing of her application for an aged parent visa that was held to be irrelevant in relation to the granting of the writ and the assertion that there was a jurisdictional error by taking into account an irrelevant consideration.

7. There was no similar fact in the present case, but what was identified by the Tribunal was the importance of compelling reasons for not applying those criteria, being reasons that require taking into account the purpose of the criteria. 

8. In the present case, there is no identified hardship for the applicant having to leave Australia for the purpose of applying for the visa. On a fair reading of the Tribunal’s reasons, the Tribunal took into account the relationship breakdown and found, taking into account the statutory purpose that the circumstances did not amount to compelling reasons for applying the Schedule 3 criteria. It was open to the Tribunal to do so.

9. To the extent that Monakova might be read as identifying a principle that the Tribunal is to disregard circumstances of alleged hardship unless a direct link is manifested of the applicant suffering hardship if required to leave Australia, that would be going beyond the statutory provision and might constitute a misconstruction of a material kind. 

Conclusion

1. For the reasons I have given, I do not accept that the Tribunal made any such error. Nor, as a matter of discretion is this a case where relief in my opinion should be granted as the error could not formally give rise to a different outcome. There is no practical injustice occasioned by any such error, if error were found. 

2. The application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 November 2016