CYG16 v Minister for Immigration

[2017] FCCA 2476

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2476

Catchwords:

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate not to grant applicant Partner visa – whether the Tribunal made any jurisdictional error in not being satisfied there was compelling circumstances to waive criteria for the grant of the Partner visa – whether Tribunal considered the evidence on which the applicant relied – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl. 801.221, 820.211(2)(d)

Applicant: CYG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1967 of 2016

Judgment of: Judge Manousaridis

Hearing date: 28 September 2017

Date of Last Submission: 28 September 2017

Delivered at: Sydney

Delivered on: 13 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms K Hooper of

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1967 of 2016

CYG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa (Partner visa).

Background

1. The applicant is a citizen of Egypt. He arrived in Australia on 5 March 2007 as the holder of a student visa. The applicant’s last student visa ceased on 6 January 2010. The applicant was granted a bridging visa on departure grounds on 8 February 2010 but failed to depart Australia and remained in Australia as an unlawful non-citizen. The applicant presented to what is now known as the Department of Immigration and Border Protection (Department) on 7 February 2011, claimed he intended to file a protection visa application, and was granted a bridging visa to do so. The applicant failed to file a protection visa application within the term of the bridging visa, and he remained in Australia as an unlawful non-citizen. The applicant eventually filed a protection visa application in August 2011.

2. A delegate of the Minister refused to grant the applicant a protection visa, and the Refugee Review Tribunal affirmed that decision on 30 November 2012. The applicant’s bridging visa ceased on 9 January 2013, but the applicant remained in Australia as an unlawful non-citizen. The applicant again presented himself to the Department on 31 July 2014, and unsuccessfully applied for Ministerial invention. He also made another application for a protection visa.

3. On 12 October 2015 the applicant applied for the Partner visa based on his being in de facto relationship with his sponsor, an Australian citizen (Sponsor). On 11 March 2016 a delegate of the Minister refused to grant the applicant a Partner visa. The delegate was not satisfied the applicant met the requirements of cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the applicant ceased to hold a substantive visa more than 28 days before lodging his Partner visa application, and the delegate was not satisfied that compelling reasons existed to waive the Schedule 3 requirements and, therefore, the applicant did not satisfy cl.801.221 of Schedule 2 to the Regulations.

4. At the time of application, cl.820.211(2)(d) to the Regulations provided:

   in the case of an applicant who is not the holder of a substantive visa--either:

   (i)the applicant:

   (A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)satisfies Schedule 3 criterion 3002; or

   (ii)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.

Before the Tribunal

1. The applicant and the Sponsor appeared before the Tribunal on 17 June 2016 to give evidence and present arguments. The Tribunal invited the applicant to provide any compelling reasons for not applying the Schedule 3 criteria. The applicant said he could not return to Egypt because of the political situation there, that he had no family in Egypt, that he had tried to set his life up in Australia, and it would not be fair for him to have to leave.[1] The Tribunal then invited the Sponsor to provide any compelling reasons for not applying the Schedule 3 criteria. The Sponsor said the applicant helps look after her mother, who was undergoing treatment for cancer; that she and the applicant had been in a relationship for a long time; that her daughter looked up to the applicant “as her father”; and, that no couple should be separated.[2]

   [1] Tribunal Decision Record, [29]

   [2] Tribunal Decision Record, [34]

Tribunal’s decision

1. The Tribunal referred to the applicant’s not being the holder of a substantive visa at the time of application for the Partner visa and his not entering Australia as the holder of a Subclass 995 visa or special purpose visa. The Tribunal then identified the question it had to consider on the review, namely whether the applicant satisfied the Schedule 3 criteria and if not, whether there were compelling reasons for not applying those criteria.[3]

   [3] Tribunal Decision Record, [40]

2. The Tribunal considered whether the applicant satisfied criterion 3001. To satisfy that criterion, the application for the visa must have been lodged within 28 days of the “relevant day”. In the applicant’s case the “relevant day” is 6 January 2010, being the day the applicant last held a substantive visa. The Tribunal therefore found the applicant did not satisfy criterion 3001 because the application for the Partner visa was made more than five years after the applicant last held a substantive visa.[4]

   [4] Tribunal Decision Record, [41]-[43]

3. The Tribunal then considered whether there were compelling reasons for not applying the Schedule 3 criteria. First, the Tribunal referred to claims the applicant made in his application for a protection visa and to the applicant’s conceding that application contained false claims. The Tribunal found the applicant had been willing to provide false information to the Department and to the Tribunal to advance his immigration claims without any concern or regard to the truth, and that this undermined the credibility of the applicant in all the evidence the applicant presented to the Tribunal in support of his Partner visa application.[5] The Tribunal was not satisfied that any of the circumstances of why the applicant did not hold a substantive visa at the time of the application provided a compelling reason for not applying the Schedule 3 criteria.[6]

   [5] Tribunal Decision Record, [49], [52]

   [6] Tribunal Decision Record, [53]

4. Second, the Tribunal accepted at face value the claims made by the applicant and the Sponsor that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship; but it did not accept that the existence of a genuine and continuing relationship in itself gives rise to a compelling reason not to apply the Schedule 3 criteria. The Tribunal was of the view that it is the particular aspects of the relationship that must provide a compelling reason for not applying the Schedule 3 criteria.[7] The Tribunal referred to the applicant’s acknowledging he only moved in with the Sponsor because he had been told he would need to be living with the Sponsor to claim he was in a de facto relationship with her, and the Tribunal noted the applicant started living with the Sponsor permanently on 5 October 2015, eight days before the application for the partner visa was filed. The Tribunal also referred to the applicant’s acknowledging that he and the Sponsor opened a joint bank account on 4 February 2016 which they have not used, and only opened to support the Partner visa application. The Tribunal found this indicated the applicant is willing to manipulate circumstances and generate documents which are not a true reflection of his circumstances in order to support his application for a partner visa to be able to remain in Australia.[8]

   [7] Tribunal Decision Record, [55]

   [8] Tribunal Decision Record, [61]

5. Third, in relation to the applicant’s claim that he and the Sponsor met on 1 April 2007 and that they commenced a de facto relationship with each other on 30 August 2008,[9] the Tribunal found there was little independent evidence to support the amount of time the applicant claimed to have spent with the Sponsor from the start of their relationship in 2008 until October 2015. It found the evidence of any relationship before October 2015 had been exaggerated for the purposes of obtaining a visa for the applicant and was not a true reflection of the time the applicant and the Sponsor spent together or the extent of their relationship.[10] The Tribunal referred to the financial and emotional aspects of the applicant’s and sponsor’s relationship, and it was not satisfied any of the circumstances of the relationship between the applicant and the sponsor provided a compelling reason for not applying the Schedule 3 criteria.[11]

   [9] Tribunal Decision Record, [9]

   [10] Tribunal Decision Record, [63]-[64]

   [11] Tribunal Decision Record, [65]-[70]

6. Fourth, the Tribunal, relying on the Sponsor’s evidence, found the applicant was not directly responsible for meeting any of the Sponsor’s daughter’s needs, and that the Sponsor and her mother have been able to meet the Sponsor’s daughter’s needs between themselves. The Tribunal was not satisfied, therefore, that the circumstances of the Sponsor’s daughter or any relationship the Sponsor’s daughter may have with the applicant provided a compelling reason for not applying the Schedule 3 criteria.[12]

   [12] Tribunal Decision Record, [71]-][72]

7. Fifth, the Tribunal referred to the claim the Sponsor’s mother was dependent on the applicant for support because of her suffering from various medical conditions, including cancer. The Tribunal found the applicant gave confused evidence about any incapacity of the Sponsor’s mother. The applicant said the Sponsor’s mother was able to walk and drive a car, but only once a week, and that the reason for this was her age. The Tribunal accepted the Sponsor’s mother may be suffering from cancer but noted there was no evidence that indicated her condition has made her dependent on the applicant for any reason, and there was no medical information that indicated the Sponsor’s mother could not look after herself. The Tribunal, therefore, was not satisfied that any of the circumstances of the Sponsor’s mother provides a compelling reason for not applying the Schedule 3 criteria.[13]

   [13] Tribunal Decision Record, [73]-[74]

8. Sixth, the Tribunal referred to the applicant’s claiming he was a Coptic Christian and would face discrimination in Egypt, and that this was a compelling reason for not applying the Schedule 3 criteria. The Tribunal accepted the applicant is a Coptic Christian but found the applicant is not actively involved in the Coptic Christian church or that he has a profile or would be identified as being involved in the Coptic Christian church for which he would face any persecution or difficulty in Egypt. The Tribunal noted there was nothing that indicated the applicant would not be able to return to Egypt and live in Cairo while any offshore Partner visa application was being processed, and that there was no information that the applicant’s brother, who lives in Cairo, has suffered any harm or persecution for any reason. The Tribunal was not satisfied that any circumstances the applicant may face if he were to return to Egypt provided a compelling reason for not applying the Schedule 3 criteria.[14]

   [14] Tribunal Decision Record, [76]-[83]

9. Finally, the Tribunal assessed the circumstances of the applicant and sponsor both individually and cumulatively, but was not satisfied the individual circumstances of the applicant and sponsor, or the total circumstances of the applicant and sponsor when considered in combination provided a compelling reason for not applying the Schedule 3 criteria.[15]

   [15] Tribunal Decision Record, [84]

Grounds of application

1. The application filed by the applicant with this court contains three grounds of application. The applicant, who is not legally represented, initially made submissions that did not refer to the grounds stated in the application and, at my invitation, then made submissions in relation to the grounds stated in the application. I will first set out and consider the submission the applicant made that did not refer to the grounds stated in the application.

Submissions that do not address grounds of application

1. The applicant submitted that the Tribunal concentrated on the circumstances surrounding the applicant’s brother, and that the Tribunal neglected how the applicant lived in Australia. He submitted the Tribunal did not ask the applicant about the Sponsor’s daughter’s circumstances, or how he helped the Sponsor’s daughter.

2. It is true the Tribunal considered the evidence the applicant and the Sponsor gave about the applicant’s brother. It was reasonably open to the Tribunal to consider that evidence. It was relevant to the applicant’s credibility; and, it was relevant to the assessment of the applicant’s claims that he would face danger if he returned to Egypt because the applicant said his brother lived and worked in Cairo. From my summary of the Tribunal’s reasons for decision, however, it is apparent the Tribunal considered other matters. In particular, the Tribunal asked each of the applicant and the Sponsor what they considered were compelling reasons for not applying the Schedule 3 criteria,[16] and it considered each of the matters the applicant and the Sponsor identified. Included in the matters it considered were the circumstances of the Sponsor’s daughter.

   [16] Tribunal Decision Record,  [29], [34]

3. I do not accept, therefore, the applicant’s submission that the Tribunal concentrated on the evidence concerning the applicant’s brother, and did not consider the other aspects of the applicant’s evidence, including evidence in relation to the Sponsor’s daughter.

4. The applicant also submitted before me that Christians in Egypt are being killed and injured. The applicant identified from the bar table a large number of particular incidents that involved the killing or injuring of Christians. The applicant informed me that he only mentioned one of these incidents to the Tribunal. The applicant in effect submitted the Tribunal was incorrect in finding that, under the government of Abdel Fattah el Sisi, the Coptic Christians in Egypt were safe. In addition, the applicant was critical of the Tribunal placing weight on the applicant not regularly attending church. The applicant submitted Coptic Christians were at risk in Egypt whether or not they attended church.

5. These submissions disclose no jurisdictional error by the Tribunal. They manifest the applicant’s disagreement with the Tribunal’s assessment of the applicant’s risk of being harmed if he were to return to Egypt. The Tribunal considered country information about Egyptian Copts. It also considered the particular circumstances of the applicant’s family, and in particular, the applicant’s providing no information that indicated the applicant or any other member of his family has faced persecution or harm in Egypt for any reason.[17] The Tribunal’s conclusion it was not satisfied that any of the circumstances the applicant may face if he were required to return to Egypt provided a compelling reason for not applying the Schedule 3 criteria was one that was reasonably open to it to make.

   [17] Tribunal Decision Record, [80]

Grounds of application

1. On my interpretation of what is contained under the heading “Grounds of Application” in the application the applicant filed, there are three grounds. I read out each of these grounds (which, of course, were interpreted) and invited the applicant to make submissions in relation to each.

2. The first ground is as follows (errors in original):

   The tribunal affirms rejeted my kase based on fals understanding of my situation.

3. The applicant submitted he felt the Tribunal had already made up its mind against his case. The applicant referred to the existence of “organised papers from immigration”. The applicant repeated this submission in relation to the second ground to which I will shortly refer. On the second occasion of the applicant stating he felt the Tribunal had already decided the case against the applicant, I asked the applicant what led him to form that belief. The applicant referred to the Tribunal having stated the applicant and the Sponsor had been together for only 10 months. The applicant also referred to the Tribunal stating the applicant did not go to church.

4. This part of the applicant’s submissions is difficult to assess because the applicant did not put in evidence the transcript of the hearing before the Tribunal. In my opinion, however, the matters which have given the applicant the impression the Tribunal had already decided the case against him is that the Tribunal had put to the applicant matters which indicated the Tribunal was sceptical about aspects of the applicant’s claims, or which indicated the Tribunal might not accept the applicant’s claims. It may be inferred from the Tribunal’s decision record that that occurred. That is most apparent in that part of the Tribunal’s decision record that refers to the Tribunal giving to the applicant particulars of the inconsistent evidence the Sponsor gave about the applicant’s brother, and stating that this information was relevant to undermining the applicant’s credibility.[18] It is also apparent where the Tribunal referred to the applicant’s acknowledging he had moved in with the Sponsor only eight days before the applicant applied for a Partner visa, and the applicant’s opening a joint bank account with the Sponsor. It is likely the Tribunal put these matters to the applicant and expressed the concerns they gave rise to in the Tribunal’s mind.

   [18] Tribunal Decision Record, [35]

5. The applicant’s submission alleges bias by the Tribunal. There is nothing in the material that could support such a claim. There is also nothing to suggest the Tribunal conducted itself in a manner that could have given rise to a reasonable apprehension of bias. The Tribunal’s putting to an applicant concerns the Tribunal may have about aspects of an applicant’s claims is consistent with the proper exercise by the Tribunal of its jurisdiction to review applications for review.

6. The first ground, therefore, fails.

7. The second ground is (errors in original):

   Never the chance to give detils about life.

8. Here, the applicant submitted he felt the Tribunal had already made up its mind. I have already dealt with this submission.

9. The ground as stated cannot be made out. As is evident from my summary of the Tribunal’s reasons above, the Tribunal considered each of the matters on which the applicant and the Sponsor relied for claiming there are compelling circumstances to waive the Schedule 3 criteria.

10. The third ground is (errors in original):

    The didn’t aske for evidence after the metting the Hearing was in one side of my life.

11. The applicant submitted the Tribunal did not ask the applicant about his life in Australia, or why he cannot live in Egypt. As I have already concluded, the Tribunal considered all matters the applicant and the Sponsor put forward as relevant to there being compelling circumstances to waive the Schedule 3 criteria.  The third ground, therefore, fails.

Disposition

1. The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 October 2017