Alrjoob v Minister for Immigration

[2018] FCCA 1158

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALRJOOB v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1158

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s compelling circumstances – no jurisdictional error – application be dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 414, 415

Migration Regulations 1994 (Cth), cl.820 of sch.2, criteria 3001 of sch.3

Cases cited:

Waensila v Minister for Immigration & Border Protection (2016) 241 FCR 121; [2016] FCAFC 32

Applicant: MO’TASEM ABDULSALAM JARWAN ALRJOOB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 412 of 2017

Judgment of: Judge Smith

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 10 April 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr N Swann

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 412 of 2017

MO’TASEM ABDULSALAM JARWAN ALRJOOB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for review of a decision of the Administrative Appeals Tribunal made on 16 January 2017.  The Tribunal’s decision was to affirm a decision of a delegate not to grant the applicant a Partner (Temporary) (class UK) visa.  The Court can only grant relief in this case if it is satisfied that the Tribunal’s decision was affected by jurisdictional error.  That means, in brief, that the Tribunal committed some error of substance or procedure that distracted it from complying with its obligations under the Migration Act 1958 (Cth) in its review of the decision of the delegate.

2. The applicant’s last substantive visa ceased on 29 April 2014 when it was cancelled.  On 28 May 2014 he lodged an application for two visas:  a class UK visa and a Partner (Residence) (class BS) visa.  The criteria for the first of those visas were, relevantly, set out in cl.820 of sch.2 to the Migration Regulations 1994 (Cth).  The first criterion of relevance is sub-cl.820.211(2)(d)(ii), namely, that:

   the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

3. The applicant also had to satisfy the criteria that he was the spouse or de facto partner of a particular person and be sponsored by that person. Clause 820.221 applied at the time of decision and required the applicant to continue to meet those criteria except in certain circumstances that did not apply to the applicant.

4. On 10 November 2014 a delegate of the Minister decided to refuse to grant the applicant both the class UK visa and the class BS visa.  In respect to the first of those visas, the critical reasoning was that the applicant did not satisfy the sch.3 criteria because his last substantive visa ceased more than 28 days prior to his lodging the application:  see criterion 3001.  The delegate was also not satisfied that there were compelling reasons for not applying those criteria.

5. The applicant applied for review of the decision to refuse to grant the class UK visa.  On 27 January 2016 the Tribunal made a decision to affirm the delegate’s decision not to grant that visa.  However, by orders made in this Court on 30 June 2016 that decision was set aside and the matter was remitted to the Tribunal to complete its task of review.  The applicant attended a hearing before a Tribunal which was differently constituted and, on 16 January 2017, the Tribunal made another decision again affirming the decision not to grant the applicant a class UK visa.  It is that decision which is the subject of these proceedings. 

6. The reasons for the Tribunal’s decision are accurately summarised in the respondent’s written submissions at [5] to [13], which I adopt for the purposes of this judgment and set out below: 

   5The Tribunal identified that in order to satisfy cl.820.211(2)(d)(ii) for the grant of the visa, the applicant needed to meet the Schedule 3 criteria unless the Tribunal was satisfied that there were “compelling reasons” for not applying those criteria (at [13]).

   6The Tribunal found that the applicant did not make his application for the partner visa within 28 days of the “relevant day” as defined in criterion 3001(2), and as such, he did not satisfy Schedule 3 criterion 3001 (at [18]). Accordingly, the Tribunal proceeded to consider whether there were compelling reasons why the Schedule 3 criteria should not be applied, and set out the relevant case law applicable to the expression “compelling reasons” (at [19]).

   7The Tribunal referred to the applicant’s statement, dated 6 January 2017, in which the applicant stated that he had been in a relationship with the sponsor since December 2012, and which put forward what were claimed to be compelling reasons for the waiver of the Schedule 3 criteria (at [9]-[11]) (CB 155). However, when asked by the Tribunal why the sponsor did not attend the hearing, the applicant gave evidence that they had separated 12-18 months prior, he no longer had contact with her and he was engaged to someone else (at [22]).

   8The Tribunal considered the applicant’s claims as to compelling reasons, and found as follows:

   8.1Noting that the parties no longer lived together and that the applicant was not financially or emotionally supporting the sponsor, the Tribunal found that the sponsor’s mental health problems were not a compelling reason (at [23]).

   8.2Given that the parties’ relationship had ceased, and as there was no indication that the applicant would suffer additional stress due to any separation from the sponsor or that the sponsor would be required to accompany the applicant offshore to lodge the visa application, the Tribunal was not satisfied that stress on the relationship whilst the applicant was offshore was a compelling reason (at [24]).

   8.3The Tribunal accepted that the decision to refuse the visa might have been stressful for the couple and had been a factor in their separation, but did not consider that this amounted to a compelling reason (at [25]).

   8.4Noting that the applicant’s family were all residents in Jordan, the Tribunal was not satisfied that the safety risks in Jordan were a compelling reason (at [26]).

   9Having considered the circumstances singularly and cumulatively, the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria, and as such, found that the applicant did not meet cl.820.211(2)(d)(ii) (at [27]).

   10The Tribunal then identified the requirements of cll.820.211(2)(a) and 820.221 of Schedule 2 to the Regulations, the latter of which relevantly required the applicant to continue to be the spouse of the sponsor at the time of decision (at [28] and [30]). The Tribunal set out the relevant legislative framework, including the definition of ‘spouse’ as defined in s.5F of the Migration Act 1958 (Cth) and reg 1.15A of the Regulations.

   11In relation to the factors in reg 1.15A of the Regulations, the decision record states that the applicant gave the following evidence:

   11.1The parties no longer shared financial resources (at [31]);

   11.2The parties no longer had a joint household as they lived separately (at [32]);

   11.3The parties no longer had contact with one another, nor did they attend joint social activities or represent themselves to others as a couple; All their friends knew that the relationship had ended (at [33]); and

   11.4The parties were no longer committed to each other and the applicant was engaged to another person (at [34]).

   12The Tribunal found that although the parties were legally married to each other, they did not have a mutual commitment to a shared life together to the exclusion of all others. Further, the relationship was not genuine and continuing. Accordingly, the Tribunal found that the applicant did not satisfy s.5F of the Act, and was not the spouse of the sponsor (at [35]).

   13For these reasons, the Tribunal affirmed the decision under review (at [36]-[37]).

   (Without alteration)

1. There are three grounds in the application.  The first ground is that:

   On 30 June 2016 the Federal Circuit Court of Australia ordered that the matter be reconsidered for the reasons set out in Waensila.

2. The reference to “Waensila” is to the decision of the Full Court of the Federal Court in Waensila v Minister for Immigration & Border Protection (2016) 241 FCR 121; [2016] FCAFC 32. As a bald proposition, ground 1 is correct. However, it does no more than record a fact and does nothing to establish that the Tribunal somehow erred in the exercise of its jurisdiction.

3. The second ground is that at the time of the application, by which I infer the applicant means visa application, the applicant’s wife and he had compelling circumstances, and the Tribunal, in its decision, “erred in law and failed to take into consideration the compelling circumstances which existed at the time of the application”. 

4. The formulation of this ground begs the question. It is, because of the structure of the Act and Regulations, a matter for the Tribunal to determine whether there were compelling circumstances. That is for two reasons: first and foremost, s.65 of the Act requires, in effect, the Minister and, on review, the Tribunal to determine whether it is satisfied that the criteria for the grant of a visa have been satisfied. That means that the analysis of the facts and the comparison of those to the criteria for the visa is a matter left by the legislature to the Tribunal.

5. In this case, that is fortified by the fact that the criteria in sub-cl.820.211(2)(d)(ii), again, is framed by reference to the satisfaction of the Minister that there are compelling reasons. In light of ss.414 and 415, that satisfaction is to be determined by the Tribunal itself upon any review of the Minister’s decision or that of his or her delegate. In light of those circumstances, this ground does not really raise any error at all but simply asserts the conclusion that the applicant says the Tribunal ought to have arrived at, namely, it says that the Tribunal ought to have been satisfied that there were compelling circumstances, namely, those that pertained at the date of the visa application. As such, it is what is commonly described as an attack on the merits of the decision and does not give rise to any jurisdictional error.

6. However, even if the ground were to be understood in a different way, namely, that the Tribunal failed to consider the circumstances pertaining at the time of the application, which might suggest jurisdictional error if accepted, then the ground must be rejected.  That is because the Tribunal’s reasons show beyond any doubt that the Tribunal did have regard to the circumstances relied upon by the applicant as they pertained at the time of the visa application. 

7. For instance, at [23] of its reasons, the Tribunal referred to the applicant’s evidence that at the time of the application and at the time of the previous hearing, he had been concerned about his then wife’s anxiety and depression and that he felt that that was a compelling reason at the time.  However, the Tribunal went on to note the applicant’s evidence that he no longer needed to provide emotional support for his wife, no doubt because he and his wife had separated.  The Tribunal concluded that the applicant’s previous wife’s mental health problems were not a compelling reason for not applying the sch.3 criteria.  For both of those reasons, the second ground is rejected.

8. The third ground is that the Department and Tribunal were responsible for the psychological situation of the applicant’s former wife, “who suffered anxiety and depression as a result of the refusal”.  The applicant repeated this ground today and expanded upon the ground by saying that it was in light of the decisions of the delegate and the Tribunal, clearly referring to the first Tribunal’s decision, that he and his wife were no longer living together and were no longer a couple, and it was because of this that he was not able to satisfy the criterion that he continue to be the spouse of his sponsor at the time of the decision. 

9. While there is no evidence to support the applicant’s assertions made in this ground, it is not necessary for me to come to any concluded view about those factual assertions.  Even if the assertions were correct, it would make no difference to the task of the Tribunal.  The Tribunal, as I have noted, assessed the circumstances as it appeared on the material and the arguments presented to it by the applicant in writing and at the hearing.  One of the issues it considered in those circumstances were whether the circumstances amounted to compelling reasons.  It decided that they did not.  Further, and this was not an issue contested by the applicant, it decided that the applicant was no longer a spouse of his sponsor and, for that additional and alternative reason, the decision of the delegate ought to be affirmed.

10. There is no question on the material before the Tribunal that it was at least open, if not the only reasonable conclusion, that the applicant was no longer the spouse of his sponsor.  Given that one of the necessary criteria for the grant of a visa, as I have already observed, was that the applicant continue to be the spouse of the sponsor at the time of the decision, the decision made by the Tribunal was one that was compelled by the regulation, and so even if there were some other error in the Tribunal’s reasons, the result would be either that that error did not go to the Tribunal’s jurisdiction or that relief ought to be refused in the exercise of the Court’s discretion.  In brief, there would be no utility in setting aside the Tribunal’s decision.

11. At the hearing today, the applicant also raised a number of issues concerning his new wife and her state of health and the fact that he had no money for a lawyer and so could not present evidence.  Those matters go to issues that were to be decided by the Tribunal and are not matters that might give rise to the power in this Court to set aside the Tribunal’s decision. 

12. For those reasons, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       14 May 2018