BASYOUNI v Minister for Immigration
[2019] FCCA 2664
•19 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASYOUNI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2664 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary (Class UK) visa – whether the Tribunal failed to act according to the evidence provided – whether the Tribunal failed to properly consider compelling reasons for not applying Schedule 3 of the Migration Regulations 1994 (Cth) – whether the Tribunal was unreasonable in making their decision – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.820.11 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | NABIL ELSAYED MOHAMED BASYOUNI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1999 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 19 September 2019 |
| Date of Last Submission: | 19 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Godwin |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Leave is granted to reply upon the amended application filed 2 September 2019.
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1999 of 2018
| NABIL ELSAYED MOHAMED BASYOUNI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is an Egyptian citizen. On 11 November 2013, the applicant applied for a Partner (Temporary (Class UK) visa on the basis of his relationship with his sponsor, Ms Nivedita Patel (“the sponsor”). The delegate of the Minister for Immigration (“the delegate”) refused to grant the visa on the basis that the applicant did not satisfy
cl 820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”) because he did not hold a substantive visa at the time of the application. The applicant also did not satisfy the Public Interest Criterion 3001 (‘PIC 3001’) and it was not accepted that there were compelling reasons not to apply that criterion.
On 2 August 2016, the Administrative Appeals Tribunal (“the Tribunal”) (differently constituted) affirmed the Minister’s decision. On 20 April 2017, this Court, by consent, remitted the matter back to the Tribunal for further consideration.
The applicant appeared before the Tribunal on 17 May 2018 to give evidence and presented arguments. The applicant was represented before the Tribunal by his migration agent. Pre and post hearing submissions and documentary evidence was submitted by the applicant to the Tribunal and they were duly considered. This included a document dated 4 May 2018 by the sponsor.
On 28 June 2018, the Tribunal again affirmed the decision of the Minister not to grant the visa. The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal’s Decision
The Tribunal gave a long decision that covered a great deal of evidence and ran to some 13 pages. The decision notes that the applicant came to Australia in 2010 on a visitor’s visa. The applicant applied for an onshore Student visa, which was refused. The applicant then unsuccessfully sought merits review in the Tribunal (differently constituted).
In the meantime, the applicant had met the sponsor on a website in 2011. They were married in July 2013. The applicant has been residing in Brisbane with the sponsor since 2017. The applicant agrees that he did not satisfy the Public Interest Criterion 3001 at the time of his Partner visa application.
At Paragraph 12 of its decision, the Tribunal noted the applicant’s claim that the most important reason he cannot return to Egypt and apply for an offshore visa is that he cannot take the sponsor out of the country to Egypt.
At paragraph 14 of its decision, the Tribunal noted the sponsor works for a local council. The sponsor has a full-time permanent position and owns a house, subject to a mortgage. The sponsor has an adult daughter who is currently studying and is financially dependent upon her mother.
At paragraph 17 of its decision, the Tribunal noted that the applicant complained of stress and anxiety for which he was taking medication. The applicant advised that the sponsor had gall bladder surgery at the beginning of 2017 and stomach surgery in 2018.
At paragraph 19 of its decision, the Tribunal again noted the reasons why the sponsor cannot accompany the applicant to Egypt. If the applicant went by himself, they would be separated for up to two years before he would be able to obtain an offshore Partner visa. The Tribunal noted that the sponsor currently supports the applicant financially, as he is not working. The sponsor has debts and is committed to supporting her daughter. The Tribunal noted that the sponsor is currently stressed due to the applicant’s visa issues.
Paragraphs 27 to 29 of the Tribunal’s decision cover information subject to the certificate pursuant to s 375A of the Migration Act 1958 (Cth) (“the Act”). The gist of the information was that the applicant was in a false relationship with the sponsor, who was only a friend. The applicant has a wife and son offshore, who visit him regularly. The applicant divorced his wife to lodge his Partner visa application. The applicant does not live with the sponsor, in fact, in reality lives with a friend. The gist of the allegations was put to the applicant, who denied them. The Tribunal determined to place no weight on those matters.
Paragraphs 29 to 31 of the Tribunal’s decision deal with the evidence subject to the certificate pursuant to s 376 of the Act. The allegations were similar to those previously outlined. The applicant also denied those allegations and again the Tribunal determined to place no weight on them.
Paragraphs 33 and 34 of its decision, the Tribunal notes that at the time of the applicant’s application for a Partner visa, he did not have a valid visa for entering Australia. As the application was not made within the 28 days of the applicant’s visa expiring, he did not satisfy Criterion 3001.
At paragraph 35 of its decision, the Tribunal considered whether or not there were compelling reasons to waive Schedule 3 of the Regulations criteria. The Tribunal noted that in Singh v Minister for Immigration & Anor [2015] FCCA 1196, Jarrett J stated at [22]:
The facts of marriage and cohabitation of themselves are not sufficient to enliven the waiver set out in clause 820.211(2)(d)(ii).
At paragraph 40 of its decision, the Tribunal notes the applicant’s claims of the existence of compelling reasons for not applying Schedule 3 criteria of the Regulations, which may be categorised as follows:
· the length of the relationship
· the applicant’s fear about returning to Egypt
· potential difficulties faced by the sponsor in Egypt
· health and wellbeing of the parties and family members; and
· financial hardship.
At paragraphs 41 and 43 of the decision, the Tribunal accepts the applicant and his sponsor had been in a relationship since 2011. The Tribunal notes that the applicant and his sponsor have spent significant periods apart since 2011 and have resided together in Queensland since November 2017. The length of the relationship is not, of itself, sufficient to be compelling.
At paragraph 44 of its decision, the Tribunal found it was not satisfied that the applicant would come to harm if returned to Egypt. At paragraph 45 of its decision, the Tribunal found that the sponsor would not accompany the applicant to Egypt due to her employment, her daughter and her established networks in Australia.
At paragraph 46 of its decision, the Tribunal found it was not satisfied that the sponsor could not travel to Egypt to visit the applicant or otherwise remain in contact with him during his absence.
At paragraphs 47 to 48 of its decision, the Tribunal considers the applicant’s health conditions. While accepting that it will be challenging to return to Egypt, the Tribunal found the applicant’s health conditions were not a compelling reason.
At paragraphs 49 to 51 of its decision, the Tribunal considered issues as to the sponsor’s health. The Tribunal noted a report from an accredited mental health social worker dated 10 May 2018, that the impact of the applicant leaving Australia would be devastating on the sponsor. At paragraph 51 of its decision, the Tribunal concluded the health and wellbeing matters are not of sufficient gravity to be compelling reasons. Issues with the health needs of the sponsor’s daughter are dealt with at paragraph 52 of the Tribunal’s decision. These issues were not found to be compelling.
Paragraphs 53, 54 and 55 of the Tribunal’s decision, deal with a number of issues. These relate to the capacity of the applicant’s son to visit him in Egypt, the potential adverse impact of the applicant returning to Egypt on his mother’s health and the financial circumstances of the applicant and the sponsor. The Tribunal did not find any of these reasons compelling.
At paragraph 56 of its decision, the Tribunal found there is no reason to find there are compelling circumstances, either individually or cumulatively, such that a waiver should be granted and accordingly affirmed the Minister’s decision.
Grounds of Appeal
An amended ground of appeal was filed in Court. Although it had been purportedly attached to submissions that were filed by the applicant’s legal representative some time ago, in fact they were not.
There is now one ground of the appeal. It is as follows:
1. The Tribunal failed to complete the exercise of its jurisdiction as it did not address the sponsor’s claims that communication with the applicant in Egypt would be difficult and unreliable because of telecommunications restrictions and the time difference.
Counsel for the First Respondent did not object to the filing of the amended ground of appeal. This was on the basis that, in fact, it was a subset of the original grounds of appeal which made a wider allegation of failing to take into account the letter of 4 May 2018.
In those circumstances, and notwithstanding the fact that the refining of the application in fact only occurred today, the Court granted leave to rely upon the amended application and new ground.
The Applicant’s Submissions
Counsel on behalf of the applicant, submitted there that was nothing in the Tribunal’s reasons to indicate that the sponsor’s letter of 4 May 2018, as regards to the impact of communication difficulties with Egypt, was considered and gives rise to an inference that it was overlooked (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323).
In the applicant’s written submissions, reliance was placed on Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 paragraphs [28], where J Rangiah stated:
In the context of an application for a protection visa, it has been held that whether the tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims.
Counsel for the applicant suggested that the inference to be drawn from the totality of the written reasons of the Tribunal, is that paragraphs contained under the heading, Health and Mental Aspect, at page 1042 of the Court book, in the letter of Nivedita Patel dated 4 May 2018, were not considered.
The health and mental aspect are as follows:
The geographical location of Egypt, its proximity to Australia and the eight hour timeframe difference will create additional pressure, have greater emotional impact and financial restraints should either of us be required to be with the other in case of emergency, or even communicate with the other as telecommunications restrictions in Egypt are evident on a regular basis and have been confirmed through social media posts, articles and reports… I have witnessed firsthand the time we must be awake until to speak to someone on the other side of the world including my husband on many occasions not being able to get through and speak with his mother which has caused a great deal of frustration and anxiety.
For a semi-professional, after my eight hour day, meeting family requirements, studying, and trying to stay awake to call Egypt to speak with my husband and still be a productive and successful individual at work will result in a much greater burnout then where I am now. With everything we have been going through, my stress levels increased and I have become despondent even when my husband was only working 1.5 hours away. To think about a destination that is over 18 hours away is only going to result in increased pressure on my mental, physical health and wellbeing even further. My obesity condition is still at “Overweight II - Severe Obese” category, the effect of all of the above will only exacerbate my existing emotional eating issues and may result in more health complications.
It was put on behalf of the applicant that nowhere in the reasons of the Tribunal was there explicit reference to the impact of communication difficulties and the difficulties that relate to communication. Particularly, because of the altered timeframe and the inherent difficulties of communicating with Egypt, considered by the Tribunal. Accordingly, the Tribunal had failed to complete the exercise of its jurisdiction and had committed jurisdictional error.
The Court was taken to a number of cases including Farhat v Minister for Immigration and Border Protection [2018] FCA 93 paragraph [34], where Kenny J said:
When considered as a whole, however, it does not seem to me that the delegate appreciated the nature of the appellant’s case and addressed the case the appellant sought to make. This is reflected at key points of the delegate’s reasons.
Reference is also made to Karan v Minister for Immigration and Border Protection [2017] FCA 872 paragraph [31], where Siopis J said:
Although the reasons given by the delegate refer to the psychologist’s report, the delegate does not address the issue in its reasons. In fact, it is apparent the delegate did not appreciate the nature of the case being made because, in its opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety, normally attendant upon being separated from “a loved one”.
The First Respondent’s Submissions
Counsel on behalf of the first respondent noted that it was not jurisdictional error if a decision-maker did not refer to each aspect of the evidence that was before the decision-maker in detail. Counsel submitted that there was an insufficient basis for finding that the contents of the 4 May 2018 letter, which I have particularly referred to, were overlooked. Such a reference will “not too readily be drawn” (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 paragraphs [46] and [47]).
It was noted that there are a number of specific references to the 4 May 2018 letter, as well as reference to the other issues in terms of the health and wellbeing of the applicant and sponsor. At paragraph 48 of the Tribunal’s decision, the following appears:
Additionally, the Tribunal notes that the applicant was able to successfully complete a security course and obtain a security license since finishing work as a chef, as noted in a written submission of the sponsor dated 4 May 2018, which was submitted to the tribunal.
The Tribunal continues on to say:
Whilst the Tribunal accepts that it would be challenging for the applicant to be separated from the sponsor and returned to Egypt given his health conditions, it is not satisfied that such conditions are of the gravity to be sufficiently powerful to lead it to make a positive finding that there are compelling reasons for not applying the Schedule 3 criteria.
The Court’s attention was drawn to paragraph 51 of the Tribunal’s decision, which starts off with the following:
The Tribunal has very carefully considered the evidence concerning the sponsor’s health and wellbeing.
The Tribunal then goes on to say:
The Tribunal accepts that it will be quite challenging for the sponsor to be separated from the applicant if he returns to Egypt given her health and wellbeing concerns. However, on balance, the Tribunal is satisfied that the sponsor would be able to maintain regular contact with the applicant through modern communication tools if he returns to Egypt and she can continue to derive emotional support in this fashion.
It was noted by Counsel that the applicant and sponsor had previously coped with being separated and the issue in this matter, was whether or not by reason of being overseas, was sufficiently compelling. The Tribunal found that it was not and that it did not amount to a sufficiently compelling reason to allow the applicant to stay in Australia.
It was suggested that there were three reasons why the submission from the applicant could not be sustained. It was noted that the material before the Tribunal, which is reproduced in the Court book, is some 1000 pages and that it was necessary for the Tribunal to effectively summarise all of the information that came before it and to highlight what were the relevant points, as compared to matters that it did not consider to be particularly relevant.
Indeed, the 4 May 2018 letter itself runs to some eight typed A4 pages and contains a plethora of information. Counsel on behalf of the first respondent suggested that careful consideration was given to the sponsor’s health and that particular emphasis was put on this in the consideration of the Tribunal and the reasons. It was suggested that the Tribunal did engage in the 4 May 2018 submission, as it extracts in detail some of the material which it says would assist or would not go to assisting the applicant in relation to whether or not there were compelling reasons.
At page 1042 of the Court book, under the heading of Health and Mental Aspects, immediately below that appears the extract that I have referred to above, which deals with the impact of the eight hour time difference between Australia and Egypt and also highlights the telecommunication restrictions that are evident.
Consideration
It is submitted by the applicant that one aspect only of the 4 May 2018 submission was overlooked and as a result of that, the Tribunal did not actively engage in the claim put forward by the applicant. As a result, it was submitted that the Tribunal failed to engage with the case being put forward. I reject that assertion. It is clear to me when I read the totality of the decision and in particular the references that are made to the 4 May 2018 submission throughout the decision, that it simply cannot be the case that it did not appreciate the impact of the telecommunications difficulties.
There is an explicit statement that the Tribunal took into account the impact of those matters. The Tribunal stated in paragraph 51 of its decision:
However, on balance, the Tribunal is satisfied that the sponsor would be able to maintain regular contact with the applicant through modern communication tools if he returns to Egypt and she can continue to derive emotional support in this fashion.
I cannot accept, given that explicit statement, there was an overlooking of the issue of the telecommunications difficulties. On the balance it indicates that the Tribunal took account of the matters that mitigated against the applicant being able to maintain communication with the sponsor, but found that they would be able to maintain effective communication.
I am not satisfied that the Tribunal failed to complete the exercise of its jurisdiction, as it did not address the sponsor’s claim. It gave a very, very detailed consideration of all of the issues that were raised. The inference which is being put forward that it failed to deal with one small aspect of the overall claim when considering the evidence that I have indicated above, simply cannot be made out.
I realise that the result in this matter will be particularly devastating to the applicant and the sponsor. It is not a matter for this Court to engage in merits review. All this Court can do is find whether or not there has been a legal error. I have found that there is no jurisdictional error.
Conclusion
Accordingly, I dismiss the application
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 28 October 2019
1