Dawa v Minister for Immigration
[2018] FCCA 3983
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3983 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether there were compelling circumstances to waive the Schedule 3 criteria – impermissible merits review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359AA,375A, 476 Migration Regulations 1994 (Cth), reg.2.05, sch.3. |
| Cases cited: Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 Farhat v Minister for Immigration and Border Protection [2018] FCA 93; (2018) 159 ALD 272 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009)174 FCR 415 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 |
| Applicant: | MOHAMED KHALED MOHAMED DAWA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2473 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2018 |
REPRESENTATION
| Representative for the Applicant: | In Person |
| Appearing for the Respondents: | Mr J. McGovern |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 13 September 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2473 of 2016
| MOHAMED KHALED MOHAMED DAWA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
(As Corrected)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 September 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 August 2016 which affirmed the decision of the Minister’s delegate to refuse the grant of a partner visa to Mr Mohamed Khaled Mohamed Dawa (“the applicant”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
I have before me the Minister’s written submissions which were filed in compliance with orders made by a Registrar of the Court.
I also have the applicant’s written submissions which were not filed in compliance with the Registrar’s order. The applicant sought leave today to hand these up to the Court. I understood that the Minister’s lawyer had been given a copy of the written submissions just prior to the commencement of the hearing. The Minister did not object to leave being granted to the applicant, allowing the submissions to be filed in Court. I granted that leave.
The Minister’s written submissions, helpfully, set out the background to this case. This is in particular, at [4] – [8]. What the Minister has set out there is a fair summary of the relevant material that is in evidence before the Court:
“4. The applicant is an Egyptian national who first arrived in Australia on 9 November 2009 while holding a Student (Subclass 572) Visa.1 When the applicant’s student visa ceased on 15 March 2010, he applied for a further student visa – this further student visa application was refused by a delegate of the Minister on 8 July 2010.2
5. On 29 December 2011, the applicant applied for a protection visa. This application was refused by a delegate of the Minister on 23 May 2012,3 and the then Refugee Review Tribunal affirmed the delegate’s decision on 29 April 2013.4 The applicant applied to the Federal Circuit Court for judicial review of the decision and the matter was remitted to the Refugee Review Tribunal for reconsideration on 10 December 2013.
6. However, the Refugee Review Tribunal again affirmed the decision to refuse to grant the applicant a protection visa on 9 April 2014. While the applicant applied for Ministerial Intervention regarding this decision, the Minister declined to intervene on 24 June 2016.5
7. On 16 June 2014, the applicant lodged his application for a Partner Visa.6 The application was refused by the Delegate on 8 May 2015.7 On 18 May 2015, the applicant applied to the Tribunal for review of the Delegate’s decision.8 The Tribunal affirmed the decision of the Delegate on 30 August 2016.9
8. On 13 September 2016, the applicant commenced the present proceedings.”
[Footnotes omitted.]
I also note in his submissions the Minister has set out the relevant law. That is, relevant to the Tribunal’s decision and the applicant’s claims as they were put before the Tribunal, such as to establish that compelling reasons existed for the waiver of the Migration Regulations 1994 (Cth) (“the Regulations”). See below the relevant paragraphs from the Minister’s submissions:
“9. At the time of the visa application, the Class UK visa comprised a single subclass being the subclass 820 Partner Visa (for which the applicant applied).10
10. The criteria for the grant of a subclass 820 visa were set out in subclause 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevantly, the applicant was required to satisfy Criteria 3001, 3003, and 3004 contained within Schedule 3 to the Regulations as he was not the holder of a substantive visa at the time of his application for the Partner Visa.11 Criterion 3001 required the applicant to make a valid application for the Partner Visa within 28 days of the last day the applicant held a substantive visa, 12 being 28 days from 15 March 2010. The applicant did not apply for the Partner Visa until 16 June 2014.13
11. As the applicant failed to satisfy the requirements of Criterion 3001, his application for a Partner Visa could only be granted if the Tribunal was satisfied that compelling reasons existed to justify not applying the requirements of the Schedule 3 criteria.14
12. Consequently, the Tribunal identified that the issue in the present application was whether the applicant could demonstrate that compelling reasons existed which would justify the waiver of the requirements of the Schedule 3 Criteria in the circumstances.15 As such, the Tribunal turned to consider the evidence given by the applicant and his sponsor in order to determine whether such compelling reasons did, in fact, exist in the present case.”
[Footnotes omitted.]
The Minister has also set out an outline of the applicant’s claims and the Tribunal’s reasoning in its decision. These are at [13] – [23] of the Minister’s written submissions. I find on the evidence before the Court, that the Minister’s submissions are a fair summary. Again, for the purpose of convenience, I adopt these for the purposes of this judgment:
“Applicant’s claims to establish compelling reasons
13. The applicant submitted that there were compelling reasons why the Schedule 3 Criteria should not be applied in his case. Specifically, he submitted that:
(a) the applicant will face problems in Egypt because, as a Sunni non-conformist, his ideology is very different from that held by most Egyptians;16
(b) the danger of returning to Egypt has increased because the applicant has married a Western woman;17
(c) if the applicant returns to Egypt to lodge a partner visa application, the sponsor will either:
(i) face great difficulties in Egypt if she accompanies him, because she does not have the same religion as many Egyptians and cannot speak the language;18 or
(ii) be at risk due to her health condition if she remains alone in Australia.19
(d) the sponsor relies on the Applicant for everything. She suffers from anxiety, panic attacks and depression;20
(e) the sponsor's health is currently stable, but will worsen if she feels threatened, scared or worried;21 and
(f) the applicant supports the sponsor financially.22
14. Additionally, both the applicant and the sponsor gave evidence regarding the genuine and enduring nature of their relationship.
15. The parties stated that they met on 3 September 2012 in Darling Harbour, NSW. They committed to a shared life on 6 February 2013, and were married on 16 May 2014.23 The applicant said that they have no problems, and have a strong marital relationship.24
16. The applicant said that neither of their families accept their relationship. Because of this the sponsor was reliant on his support, to the exclusion of her family.25
17. The sponsor said that she is reliant on the applicant at all times, and that "she has seen the applicant every day since their relationship started...with the exception of when he was in hospital over the weekend just before the hearing".26
Tribunal Decision
18. The Tribunal found that the applicant had not applied for the Partner Visa within 28 days of the relevant day. The relevant day in the applicant's case was 15 March 2010, giving the applicant until 12 April 2010 to apply for a partner visa. The visa application was not made by this date, and the applicant consequently did not satisfy criterion 3001, Schedule 3 of the Regulations.
19. The Tribunal therefore considered whether there were compelling reasons for not applying the Schedule 3 criteria (compelling reasons). The Tribunal accepted at face value the parties' claim to be in a genuine and continuing spousal relationship.27 However, for the reasons set out below, the Tribunal found there were not compelling reasons which justified waiving the requirement to satisfy the Schedule 3 Criteria:
(a)length of relationship: the Tribunal was not satisfied that the length of the parties' relationship amounted to a compelling reason in and of itself; the parties had been married for a little over two years. The parties did not have children together.28
(b)sponsor's need for care: the parties gave contradictory evidence regarding the support the sponsor required from the applicant. The sponsor stated that she needed the applicant "all the time", and saw him every day. The applicant said that from February or March 2016 to July 2016, he worked in Canberra, and only saw the sponsor on weekends.29 The Tribunal preferred the evidence of the applicant. It found that the parties only had direct contact on weekends for this period. As such, the sponsor did not have the extensive access to the applicant's support that she had claimed.30
(c)sponsor's mental health: the Tribunal accepted that the sponsor suffered from anxiety and took antidepressant medication. The Tribunal was not satisfied that she experienced a level of symptoms, or had care needs, such as would amount to a compelling reason.31 The sponsor self-assessed her mental health as "okay at the present time".32 The sponsor had not engaged a psychiatrist. Although she sought psychological opinions, on both occasions she was self-referred.33
(d)sponsor's financial dependence: the Tribunal accepted that the sponsor may experience financial difficulty if the applicant were return to Egypt. However, the Tribunal found that the sponsor may be eligible for Centrelink, is not clearly impaired from seeking work, and has in the past worked vocationally. Her financial difficultly was not a compelling reason.34
(e)emotional distress: the Tribunal accepted that the parties would experience emotional distress upon separation. This was not a compelling reason. The Tribunal noted that all applicants who apply for an offshore partner visa must wait while the application is processed.35
(f)travel to Egypt: the Tribunal accepted the sponsor's evidence that she had no intention of travelling to Egypt.36 It therefore did not consider whether she would be at risk in Egypt. The Tribunal was not satisfied that the Applicant faced a sufficient risk of harm in Egypt, to constitute a compelling reason. This was because:
(i) as a citizen, and not a foreign tourist, the applicant faced the same level of risk as the general population;37
(ii) it was not unreasonable to expect the applicant to show a similar level of restraint in expressing his religious views as he displayed in Australia. This would inure him from much of the risk associated with his religious views;38
(iii) country information indicated that it was acceptable for a Muslim man to marry a Western woman, without her converting to Islam. The applicant was not at risk for having married the sponsor;39 and
(iv) Egypt does not target failed asylum seekers upon their return.40
20. In the course of assessing the applicant's evidence and submissions, the Tribunal informed the applicant that the Department had received information about the applicant and the sponsor that was the subject of a non-disclosure certificate issued under s 375 of the Act.41 The Tribunal considered the certificate to be valid and put the gist of the information to the applicant pursuant to its obligations under s 359AA of the Act.42
21. The applicant elected to respond at the hearing to the information put to him by the Tribunal.43 While it found the applicant's responses to be generalised and non-specific, the
Tribunal ultimately afforded limited weight to the "dob in" information,44 and otherwise accepted at face value that the parties were in a genuine and continuing spousal relationship.4522. Following the hearing, the Tribunal also put certain information to the applicant in writing pursuant to s 359A of the Act regarding inconsistencies and discrepancies in the evidence given by the applicant and the sponsor at the hearing and between the evidence given at the hearing and other information available to the Tribunal.46 The applicant requested an extension of time to reply to the information, which was granted, and responded in writing on 25 August 2016.47
23. Ultimately, as it was not satisfied that the applicant had established there were compelling reasons to justify waiving the requirement to satisfy the Schedule 3 Criteria (either individually or cumulatively), the Tribunal affirmed the Delegate's decision to refuse the visa application.48”
[Footnotes omitted.]
[Error in the original.]
The Grounds of the application:
The grounds of the application to the Court are in the following terms:
“1. The Delegate of the Minister’s decision is affected by error of law on the basis that the Delegate asked himself the wrong question by misconstruing the words compelling and compassionate circumstances in Regulation 2.05(4) of the Migration Act specifically the delegate asked himself whether the applicant’s circumstances met the description of compelling circumstances as set out in the Department’s policy in substitution for the question posed by the Regulation, thereby restricting the plain meaning of “compelling”.
2. The Delegate of the Minister had strong evidence concerning Schedule 3 and such evidence is compelling yet failed to accept as meeting Schedule 3.”
[Errors in the original.]
Before the Court
At the hearing today, the applicant appeared in person. He was assisted by an interpreter in the Arabic language. A solicitor appeared for the Minister.
It was clear, and I do not say this with any disrespect to the applicant, that he was unable to explain what he said his “friend” had written for him in his written submissions. When I asked the applicant, for example, to explain what was meant at [7] of the written submissions, and the assertion that that there was no statutory basis for the conclusion referred to in [7], it emerged that the complaint really was that the Tribunal did not take into consideration the length of the applicant’s claimed spousal relationship, and that in fact there had been a spousal relationship.
The difficulty for the applicant is, as the Minister correctly submitted, that the statutory task for the Tribunal is not to uncritically accept anything, or everything, that an applicant says, and merely find that there are compelling reasons for the waiver.
What is required is an examination of the evidence before it, and for the Tribunal to give a cogent explanation as to the weight that the Tribunal decides to apportion to each piece of evidence before it. What the applicant’s “friend” has failed to understand, or perhaps did not appreciate, is that the Tribunal did accept that a spousal relationship existed, but it could not be satisfied that there were compelling reasons such that the Schedule 3 criteria should be waived (see in particular, the matters set out at [19] of the Minister’s written submissions extracted above at [7]).
What the applicant’s friend has failed to understand is the applicant was not simply required to satisfy the Tribunal that a spousal relationship existed. That was certainly one element. But, importantly, the Tribunal needed to be satisfied that there were compelling reasons for waiving the Schedule 3 requirements.
In essence, the relevant statutory scheme is designed here to ensure that applicants for partner visas meet certain requirements. If they do not meet those requirements, then the relevant decision-maker, in this case, the Tribunal, may waive those requirements. But only if, as is relevant to this case, compelling reasons can be found to exist to justify that waiver.
I note also in his written submissions the applicant’s friend makes reference to two Federal Court authorities (Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (“Waensila”); Farhat v Minister for Immigration and Border Protection [2018] FCA 93 (“Farhat”)). I will address those later.
Consideration
Having regard to the terms of the grounds of the application to the Court, two preliminary matters immediately arise.
One, the applicant’s grounds seek to challenge the decision of the delegate of the Minister. Given the provisions of s.476 of the Act, in the circumstances of this case this Court has no jurisdiction to review the delegate’s decision. That is because the delegate’s decision meets the meaning of the phrase reviewable decision as set out at s.476 of the Act. Not only is the delegate’s decision a reviewable decision, it was, in fact, reviewed by the Tribunal.
Both the grounds of the application to the Court seek only to challenge the delegate’s decision. Given what I have just said, that is sufficient to dismiss the application to the Court. However, I note that in his submissions, the Minister fairly approaches the understanding of the applicant’s grounds on the basis that where the applicant refers to “Delegate”, what he really should have said is “Tribunal”. It is appropriate therefore that I consider the grounds in that light.
Two, as is clear from the evidence before the Court, the material given to the Tribunal included a certificate issued pursuant to s.375A of the Act. That is, it sought to exclude from disclosure the documents which were the subject of the certificate (see CB 85). The Tribunal did consider the certificate, and found for the reasons given, that the certificate was valid.
Notwithstanding that the effect of the valid certificate was to prevent disclosure of the documents to which the certificate related, on the evidence before the Court, the Tribunal, nonetheless, put what is said to be the “gist” of the information from those documents to the applicant for comment at the Tribunal hearing. It utilised the mechanism available pursuant to s.359AA of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
The evidence before the Court reveals that the applicant elected to respond to the information at the Tribunal hearing. While the Tribunal found that the applicant’s responses were “generalised” and “nonspecific”, it ultimately, afforded little weight to the information that had been set out in the documents to which the certificate referred ([38] at CB 164).
In all the circumstances, the existence of the certificate and the Tribunal’s conduct in relation to the certificate do not reveal any basis to assert jurisdictional error.
A number of matters, or elements, arise from ground one of the application to the Court.
First, the ground asserts that the Tribunal misconstrued the words “compelling and compassionate circumstances” as set out in reg.2.05(4)(a). While the ground refers to reg.2.05(4) “of the Migration Act”, I understood it to mean the Regulations.
As the Minister correctly submitted, reg.2.05(4) does not apply to the applicant’s case, and did not apply to the applicant’s circumstances as they were before the Tribunal. That regulation relates to compelling and compassionate circumstances that have developed since a visa was granted, and being a visa that was granted with conditions. It relates to circumstances where an applicant seeks the waiver of such conditions on compassionate and/or compelling grounds.
This is not the applicant’s case and was not the applicant’s case before the Tribunal. Clearly, the matter before the Tribunal was whether there were compelling or compassionate reasons to waive the Schedule 3 criterion that applied to the applicant’s case.
In his submissions to the Court, the applicant says (at [13]):
“I wish to submit to the honourable Court
…- Farhat decision”.
That decision, as the Minister submitted before the Court, does relate to reg.2.05(4). However, as that regulation does not apply to the applicant’s case, the Farhat decision does not assist him.
Second, ground one also asserts that the Tribunal otherwise asked itself the wrong question and misunderstood the concept of “compelling and compassionate circumstances” because of that. On the evidence before the Court, this complaint must be rejected.
The Tribunal’s exposition of the relevant law as set out in its decision record reveals no such misunderstanding (see [49] – [59] at CB 168 to CB 169 of the Tribunal’s decision record).
I note, in particular ([58] at CB 169), the other case referred to in the applicant’s submissions, and on which he seeks to rely to say that the Tribunal’s decision was affected by error of law, is the judgment of the Full Court in Waensila.
At [58] (CB 169), the Tribunal makes specific reference to the case of Waensila, and the resulting understanding of the relevant law. The Tribunal also made reference to MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (“MZYPZ”). The Tribunal’s decision record reveals an appropriate understanding of the relevant law as derived from those authorities. Nor does the Tribunal’s application of that understanding to the circumstances of the applicant’s case reveal any legal error.
On any plain, let alone a fair reading of the Tribunal’s decision record, it is clear that the Tribunal understood that the central question posed by the statutory task before it. This was whether it was satisfied, as at the time of its decision, that there were compelling circumstances that were relevant to the applicant’s case, such that the Schedule 3 criteria that are set out in Schedule 3 of the Regulations should not be applied to the applicant’s application. The Tribunal’s reference to relevant authorities, and its application of the principles derived from the authorities, reveals no legal error (see [58] at CB 169).
Third, ground one seeks to particularise the applicant’s complaint by asserting that the Tribunal considered whether the applicant’s circumstances were compelling with reference to the Department’s policy, and not with reference, or regard to, the question posed by the Regulations.
The first thing that must be said is that, as the Minister submits, there is no error in the Tribunal simply having regard to Departmental policy. So long as, of course, such policy is not applied inflexibly (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In any event, on the evidence before the Court, the Tribunal plainly had regard to, and applied, the relevant regulatory scheme and the requirements arising from that scheme ([54] – [59] at CB 168 to CB 169).
Fourth, what remains of the applicant’s ground is an attempt to take issue with factual findings made by the Tribunal. As I sought to explain to the applicant, this Court has no power to intervene and simply substitute, its own findings, for that of the Tribunal.
In this case, the Tribunal’s findings were all reasonably open to it for the reasons that it gave. The findings were probative of, and had a logical connection to the evidence that was before the Tribunal. In all, therefore, ground one is not made out.
Ground two asserts that the applicant had: “…strong evidence concerning Schedule 3”. That evidence is said to be compelling and, yet, the ground complains, that the Tribunal failed to accept that the applicant’s circumstances met the Schedule 3 criteria.
In essence, the applicant’s second ground asks the Court to engage in impermissible merits review. As I have already said, the Tribunal made findings which were reasonably open to it. It considered all of the evidence before it. The assignment of weight to that evidence, and how it balanced the different pieces of evidence before it, were essentially matters for the Tribunal in the proper exercise of its jurisdiction. Again, the ground seeks merits review, and has no merit.
In his submissions in relation to ground two, the Minister suggests, generously, that it may be that the ground seeks to assert that the Tribunal’s decision was legally unreasonable, illogical or irrational or lacked an intelligible justification for the conclusion that it reached. In his submissions the Minister, refers to a number of authorities which make clear that if any of those matters could be made out, then, clearly, legal error would be demonstrated: (Minister for Immigration and Citizenship v Li (2013) CLR 332; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at 171 – 2).
However, even if this is what the applicant’s second ground seeks to assert, no legal error is revealed. On the evidence before the Court, the Tribunal comprehensively considered all of the applicant’s claims and evidence. The Tribunal made findings that were reasonably open to it and, as I said, probative of the material and the evidence before it. The Tribunal’s reasoning does provide an intelligible justification for the conclusion that it has made.
Ultimately, what the applicant, and his “friend” have not understood is, as the Minister submitted with reference to relevant authority, that to waive the Schedule 3 criteria, the applicant’s circumstances must have elements that are so powerful that the decision-maker is compelled to waive the Schedule 3 criteria.
As I have already said a number of times, the Tribunal comprehensively considered the matters that were put to it, but was ultimately not satisfied that there were compelling reasons to justify the waiver. This was in circumstances where the Tribunal considered all of the evidence and claims, and made findings reasonably open, and probative of the material. It simply could not be satisfied that there were compelling reasons to justify the waiver. No legal error is revealed in those circumstances.
I also note, respectfully, the reference at [11] of MZYPZ, to what Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
“Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.”
In the current case, the applicant’s, or perhaps more properly, his “friend’s” subjective judgment is not a matter that can on its own reveal jurisdictional error in what the Tribunal has done.
Conclusion
In all, therefore, neither the grounds of the application to the Court, nor the applicant’s written submissions reveal jurisdictional error in the Tribunal’s decision. It is appropriate that the application to the Court be dismissed. I will make that order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 5 March 2019
CORRECTION (11 March 2019)
The end certification date was changed from 26 November 2018 to 5 March 2019.
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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