Alafifi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 626
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alafifi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 626
File number(s): SYG 644 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 18 July 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa –Whether the Tribunal should have waived Schedule 3 criteria – Where the length of the relationship was a compelling reason not to apply Sch 3 – No jurisdictional error made out – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 360 357A
Migration Regulations 1994 (Cth) Sch 2 cl 820.211(2)(d)(ii), Sch 3
Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYPC v Minister for Immigration and Citizenship [2012] FCA 478
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Waensila v Minister for Immigration & Anor [2015] FCCA 2276
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 11 July 2024 Place: Parramatta Counsel for the Applicant: Mr Chia s Solicitor for the Respondents: Mr Knuckey, Mills Oakley ORDERS
SYG 644 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMAD JAMAL MUSTAFA ALAFIFI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Applicant is granted leave to rely upon an Amended Application filed in Court on 11 July 2024.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,800.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS:
INTRODUCTION
This matter has a long and complex history. The applicant is a citizen of Jordan. He initially arrived in Australia in March 2010 on a student visa that ceased on 2 September 2010. He applied for another student visa which was refused. That decision was affirmed by the then Migration Review Tribunal. The applicant initially sought judicial review of that decision however the application was dismissed in July 2013. The applicant married an Australian citizen in September 2011, however that relationship ended in divorce on 12 May 2013.
The applicant met his partner (the sponsor) on a dating website in May 2012. They were in a relationship by June 2012, and were married on 11 June 2013. On 22 July 2013, the applicant applied for a Partner (Temporary) (Class UK) visa (“the visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”) on the basis of his relationship with the sponsor. However, the applicant’s relationship with the sponsor later broke down in December 2013 due to claims of family violence.
On 6 November 2014, a delegate of the then Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant his visa on the basis that he did not satisfy cl 820.211(2)(d)(ii) of sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), namely, that he did not meet the timeframe requirements for the visa and that there were no compelling reasons for the requirements not to apply.
On 26 November 2014, the applicant filed for merits review with the Administrative Appeals Tribunal (“the Tribunal”). On 29 February 2016, the Tribunal affirmed the delegate’s decision. The applicant applied to the then Federal Magistrates Court for judicial review. On 9 May 2016, the Court remitted the matter on the basis that a compelling reason to waive Schedule 3 criteria may arise at any time, including after the date of the application for the visa.
On 21 November 2016, the Tribunal affirmed the delegate’s decision. The applicant again sought judicial review of the Tribunal’s second decision with the then Federal Circuit Court. On 28 August 2017, the Court remitted the matter again for reconsideration on the basis that the Tribunal erroneously found that the existence of a genuine relationship of any length, on its own, could not ever give rise to a compelling reason for the waiver of the requirement to satisfy the sch 3 criteria.
The applicant subsequently appeared before the Tribunal on 20 November 2018 to give evidence and present arguments. He was represented by a registered migration agent. On 1 March 2019, the Tribunal again affirmed the decision of the delegate not to grant the applicant the visa.
The applicant now seeks judicial review of the third Tribunal’s decision. For the reasons set out below, the application must be dismissed.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal set out the evidence the applicant gave during the hearing at [10] – [17] of its decision and noted at [18] the subsequent reception of two statutory declarations from the applicant’s witnesses who were unavailable at the time of the hearing.
The Tribunal considered the applicant’s claim that he was the victim of family violence prior to his relationship with the sponsor ceasing. The Tribunal set out the applicant’s claims contained in his statutory declaration dated 17 November 2016 at [19] – [21], and noted that whilst the relationship breakdown meant the applicant was no longer sponsored by a person with whom he was in a spouse or de facto relationship with, the issue was whether the applicant satisfied Schedule 3 criteria and, if not, whether there were compelling reasons for those criteria not to apply.
At [22] and [23], the Tribunal set out the documents it considered. The Tribunal also noted the inconsistencies between the applicant’s evidence and the evidence of the applicant’s witnesses in their statutory declarations, regarding the duration of the applicant and sponsor’s relationship, stating that this inconsistency in relation to what it considered a central issue gave rise to concerns about the reliability of the documents in so far as they spoke to the length of and cessation of the relationship.
Whether the applicant met the Schedule 3 criteria was considered at [24] to [28] of the Tribunal’s decision. The Tribunal set out the criteria the applicant was required to satisfy under Schedule 3 of the Regulations and found that the applicant did not satisfy criteria 3001, as the visa application was not made within 28 days of the relevant day, being the day the applicant last held a substantive visa.
The Tribunal then considered whether there were compelling reasons not to apply the Schedule 3 criteria in relation to the applicant. The Tribunal set out the guiding policies, general principles, and acknowledged circumstances which may give rise to a compelling reason for the exercise of this discretion at [30] – [36]. The Tribunal had regard to a number of guiding questions and made the following findings at [37] – [54]:
(a)Regarding the question “does the duration or the nature of the parties’ relationship provide a compelling reason to not apply the Schedule 3 criteria?”, the Tribunal was satisfied that the applicant met the sponsor in May 2012. They commenced their relationship shortly after and their relationship ceased around 18 months after that. The Tribunal was not satisfied that the applicant and the sponsor were already in a long-term relationship such as to provide a compelling reason not to apply the Schedule 3 criteria, or that there was any particular aspect of that relationship which provided a compelling reason.
(b)In response to the question “do the reasons for not holding a substantive visa provide a compelling reason to not apply the Schedule 3 criteria?”, the Tribunal set out the applicant’s evidence and claims surrounding his application for a student visa at [39] – [41], which included the applicant’s claims regarding his education agent. The Tribunal was not satisfied that the evidence demonstrated that the applicant’s education agent’s actions and/or advice were the reasons for the applicant’s student visa ceasing in September 2010, or contributed in any other way to the applicant not having a substantive visa at the time of applying for the visa (i.e. partner visa). The Tribunal did not view it unusual for the applicant to seek alternate legal assistance when seeking judicial review nor did this establish that previous advice or assistance he may have received provided a compelling reason.
(c)To the question “does the sponsor’s past attendance at a TAFE course provide a compelling reason to not apply the Schedule 3 criteria?”, the Tribunal preferred the applicant’s more recent evidence on this issue and was satisfied that the sponsor did not intend to accompany the applicant to Jordan if the application for the visa was unsuccessful. The Tribunal was not satisfied that there would have been financial constraints on the sponsor’s ability to study if the applicant returned to Jordan and, if the sponsor had an intention to accompany the applicant offshore for a period whilst enrolled in a course, the Tribunal was not satisfied that the sponsor taking a break from her studies would have given rise to compelling circumstances.
(d)In relation to the question “does the sponsor’s pregnancy in 2013 and family violence in the relationship provide a compelling reason to not apply the Schedule 3 criteria?”, the Tribunal was not persuaded that a pregnancy which did not proceed past six weeks was sufficient to give rise to compelling circumstances. The Tribunal stated that the relationship had ended and any assistance and support the applicant claimed to have provided to the sponsor during that period was no longer being provided. The Tribunal was therefore not satisfied such matters gave rise to compelling circumstances. In response to the applicant’s claims involving family violence, the Tribunal accepted that the applicant sought assistance from health professionals in relation to the circumstances and impacts of the breakdown of his relationship, accepted that the applicant’s general practitioner recommended psychotherapy, and that a social worker indicated his symptoms appeared consistent with sever depressions, anxiety, and adjustment disorder. However, the Tribunal was not satisfied that there would be permanent damage to the applicant’s physical or mental health unless the Schedule 3 criteria were waived. The Tribunal stated at [48] that:
I am not satisfied that the available evidence demonstrates that impacts of the sponsor’s pregnancy in 2013, or family violence in their relationship prior to it ceasing have affected his ability to engage in daily tasks or his interactions with others to the extent that they would provide a compelling reason to waive the Schedule 3 criteria.
(e)Regarding the question “did the potential impact of a period of separation provide a compelling reason to not apply the Schedule 3 criteria?”, the Tribunal considered submissions about the difficulties the sponsor would face living overseas and, whilst acknowledging that these may have existed, was not convinced that the sponsor ever had any actual intention of accompanying the applicant overseas. The submissions of the applicant that he supported the sponsor (emotionally and financially) were also considered and the Tribunal found that they were not satisfied that the applicant’s claims about the sponsor’s mental health was a reason the applicant could not return to Jordan and apply for a visa from there; did not accept that any encouragement by Centrelink to the sponsor demonstrated the sponsor’s dependence on the applicant; and was not satisfied that there would have been financial hardship on the sponsor if the applicant were to return to Jordan. Further it did not consider that the provision of financial support would need to cease if the applicant were to leave Australia if the relationship was genuine. The Tribunal stated at [54]:
There is no suggestion that since the relationship ended, the applicant has provided emotional or financial support to the sponsor, even if such support was provided previously. The Tribunal is not satisfied that the sponsor would have suffered financial hardship if the applicant was to leave Australia and the Tribunal finds that such circumstances do not amount to compelling reasons for the waiver. The Tribunal does not consider that the past provision of emotional and financial support, or the sponsor’s reliance on such support, even if it existed, constitute compelling reasons for the waiver in circumstances where such support has not been offered or provided for over two years.
The Tribunal concluded that it considered the issues put forward separately and cumulatively but was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. The applicant did not satisfy the criteria for the grant of the visa as he did not meet cl 820.211(2)(d)(ii) and there was no evidence before the Tribunal that he met the requirements in the alternative subclauses in cl 820.211.
The Tribunal accordingly affirmed the decision not to grant the applicant the visa.
THE GROUNDS OF JUDICIAL REVIEW
Amended Application, filed 5 June 2024. The grounds, verbatim, raised by the application are:
1.The second respondent (Tribunal) asked itself the wrong question or ignored relevant evidence.
2.Further or in the alternative, the Tribunal failed to “invite” the applicant to give evidence and present arguments under section 425 of the Act.
3.Further or in the alternative to 1 and 2, the Tribunal otherwise misconstrued and misapplied the Regulations.
Particulars
The Tribunal conflated the issues of whether “compelling reasons” existed at time of application and that of whether such reasons existed at time of decision.
THE APPLICANT’S SUBMISSIONS
In the written submissions, the applicant set out the documents relied upon and the background to his application at [1] – [14].
In relation to ground one, it was submitted that the Tribunal failed to exercise its jurisdiction by asking the wrong question or ignoring relevant evidence. The applicant pointed to the effect of the Tribunal’s reasoning at [42] of its decision being that the Tribunal’s finding of the applicant and sponsor being not “already in a long-term relationship such as would provide a compelling reason to not apply the Schedule 3 criteria” was because the relationship had lasted less than two years. The applicant acknowledged the Tribunal’s consideration of the relevant explanatory statement which provided that waiver “may be justified” for relationships of two or more years but submits there was no basis for the Tribunal to proceed on the basis of this arbitrary requirement in order for there to be “compelling reasons” and that the Tribunal treated this as an inflexible rule.
Accordingly, the applicant submits that the Tribunal asked itself the wrong question and failed to deal with the applicant’s particular circumstances at the time of application. Further, the applicant stated that this is supported by the fact the Tribunal gave no consideration to the aspects of the relationship as claimed in the applicant’s 17 November 2016 statement (specifically those arising from the sponsor's emotional and financial dependence, her mental health and the family violence that was claimed to have occurred).
In relation to ground 2, the applicant claims that the Tribunal failed to “invite” him to give evidence and present arguments relating to issues arising. The applicant relied upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The applicant submits that the Tribunal departed from the course of reasoning taken by the previous tribunals, differently constituted, at [43] when the Tribunal found that the applicant had not established the sponsor would be unable to defer her studies, and at [48] where the Tribunal stated that the applicant had not established he would not have access to counselling and support in Jordan. The applicant claims that the Tribunal did not advert to these issues such as to place the applicant on notice that these would be issues relevant to review and thus denied the applicant a reasonable opportunity to present his case.
In support of ground 3, the applicant referred to Waensila v Minister for Immigration & Anor [2015] FCCA 2276 (“Waensila”) and submitted that the Tribunal conflated the applicant’s claimed circumstances at the time of application (i.e. during the relationship) with that at the time of the decision (i.e. since the relationship ended). The applicant referred to the Tribunal’s consideration of the sponsor’s termination of pregnancy and family violence at [45] – [48] of the decision. It was submitted that the Tribunal considered whether the applicant suffers ongoing difficulties as a result of those events as opposed to whether there was hardship at the time of those events (i.e. at the time of application).
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one, which the Minister understood the complaint as being that the Tribunal failed to property discharge it’s review function, the Minister submitted that, to the extent that the ground alleges that the Tribunal asked itself the wrong question or applied the wrong test, the ground cannot be established.
The reasons for not applying the Schedule 3 criteria may appear compelling to one person and not to another, that a waiver decision will always involve a subjective judgement, and the question is whether the circumstances as a whole compel the decision maker to exercise the discretion conferred.
The applicant’s contention would require the Court to read the Tribunal’s decision in a selective manner with an eye keenly attuned to the perception of error and cease reading at [31], ignoring relevant statements at [32] to [36] of the Tribunal’s decision: this being contrary to the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh, and Gummow JJ). The Minister submitted, in respect of the applicant’s contention that the Tribunal failed to consider the compelling reasons at the time of the application, that:
(a)Had the Tribunal limited its consideration to the circumstances at the time of the application, or the time of the statement of November 2016, it would have repeated the error made in the Tribunal’s decision of 21 November 2016.
(b)The Tribunal clearly did consider the sponsor’s claimed emotional and financial dependence on the applicant, her mental health, and the claimed family violence but was not satisfied these gave rise to compelling circumstances.
At their highest, the Minister submitted that the applicant’s contentions cavil with the merits of the Tribunal’s decision and fail to establish error.
With regard to ground 2, the Minister understands the applicant to be suggesting that the Tribunal contravened s 360 of the Act. The Minister submits that the Tribunal not being sufficiently satisfied by the applicant’s evidence does not raise a new issue which would oblige the Tribunal to put the applicant on notice of; being an issue the applicant was not previously aware of.
In relation to Ground 3, the applicant has misunderstood the principle of Waensila and the basis of the Tribunal’s decision. The Tribunal, in reaching its conclusion of whether there were compelling circumstances, correctly considered the circumstances at the time of the application, during the intervening years, and the ongoing circumstances affecting the applicant. The Minister submits that the Tribunal’s conclusions were reasonably open to it on the material.
CONSIDERATION
It is common ground between the applicant and the Minister, that the Tribunal needed to find compelling reasons not to apply the Schedule 3 criteria. There is no statutory definition as to what constitutes “compelling reasons” for not applying the Schedule 3 criteria. At [32] the Tribunal set out that the reasons must be sufficiently convincing to move the decision maker to make a positive finding in favour of waiving the required criteria; (see: MZYPC v Minister for Immigration and Citizenship [2012] FCA 478 at [10]). The Tribunal then correctly instructed itself that “compelling reasons” can apply at any time, including after the visa application is made; (see generally: Waensila).
The Tribunal then noted that policy guidance is included in the Department’s Procedures and Advice Manual (PAM 3), however the Tribunal is not bound by that policy. What constitutes compelling circumstances is a question of fact, having regard to the circumstances of the case.
Ground one is a complaint that the Tribunal asked itself the wrong question as regards the length of the applicant’s relationship with the sponsor and did not find a compelling reason not to waive the Schedule 3 criteria. At [36] the Tribunal acknowledged that a genuine relationship of any length could give rise to a compelling reason to waive the Schedule 3 criteria. At [37], the Tribunal found that the applicant met the sponsor in around May 2012 and shortly thereafter they commenced a relationship which ended in December 2013, or a period of 18 months. The Tribunal concluded at [38] the longevity of the relationship was not a compelling reason not to apply the Schedule 3 criteria.
The Court does not accept the assertion that the Tribunal asked itself the wrong question. The Tribunal acknowledged that a relationship of any length could give rise to a compelling circumstance. However, in this particular case the Tribunal was not convinced that the relationship was of such a long-term nature that it gave rise to a compelling circumstance. The Tribunal did take account of the sponsors claimed financial dependence on the applicant, her mental health and the claimed family violence The ultimate finding was open on the evidence before it and was within the legitimate decisional freedom of the Tribunal. The Court is not satisfied that the Tribunal applied an inflexible rule as the relationship was less than 2 years in length. It simply found the circumstances were not compelling. Ground one has no merit.
Ground two is a complaint that the Tribunal failed to invite the applicant to give evidence and present arguments that arise in relation to the review. The applicant complains that the Tribunal failed to specifically bring to the applicant’s attention that “he had not established that he would not have access to counselling or other supports in Jordan” and in so doing denied him a reasonable opportunity to present his case (AS, [21]). As noted by the respondent, the Tribunal’s procedural fairness obligations are codified in s 357A of the Act.
The Tribunal is not required to give a running commentary of its thought processes and is only required to put the applicant on notice of matters that “may” be important to the decision and may be open to doubt; (see: SZBEL at [48]). This obligation does not extend to information given by the applicant to the Tribunal.
The Tribunal fairly considered all the evidence given by the applicant at [44] and at [47] – [48]. The conclusion that the applicant’s health would not be subject to permanent damage if the Schedule 3 criteria were not waived was again an available assessment of the totality of the evidence. The suggestion by the applicant that he was required to be placed on notice of the potential finding that he had not established he would not have access to counselling or other support in Jordan, cannot be sustained. It was for the applicant to place before the Tribunal all the evidence he relied upon to ground the case that he be granted the visa he sought. Nor does the Tribunal require rebutting evidence before holding that a particular assertion was not made out; (see: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]). Ground two has no merit.
Ground three contends that that the Tribunal erroneously conflated the applicant’s circumstances at the time of the application and the time of the decision. For example, the Tribunal only asked itself if compelling reasons arose at the time of the decision as compared to hardship as at the time of the application.
The Court does not accept the contention that Waensila should only have regard to the hardships at the time of the application and disregard any change in them up to the time of the decision. Rather, the decision allows a change in circumstances that provides evidence as to hardship that arises after the application to be taken into account. The Tribunal correctly considered all the evidence both at the time of the application and up to the time of the decision.
It correctly found that compelling circumstances did not exist. Again, that is a decision that was reasonably open on the evidence before the Tribunal. Ground three has no merit.
The application must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 18 July 2024
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