Elhendy (Migration)

[2019] AATA 3747

Elhendy (Migration) [2019] AATA 3747 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Mohamed Mohamed Abdelhamid Elhendy

CASE NUMBER:  1815591

HOME AFFAIRS REFERENCE(S):           CLF2013/212822

MEMBER:Kira Raif

DATE:30 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 30 July 2019 at 1:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – longstanding genuine relationship – compulsory military service – business affairs in Australia – sponsor’s medical conditions – anxiety – providing sponsor with support and comfort – meaningful parental role in the upbringing of step-son – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2893
MZYPZ v MIAC [2012] FCA 478
Sidhu v MIBP [2014] FCCA 167
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Egypt, born in September 1990. He first entered Australia in October 2011 on a short stay Business visa which expired in November 2011. The applicant made other applications in Australia but was not granted a substantive visa.

3. The applicant applied for the Partner visa on 29 August 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate found that the applicant did not meet the Schedule 3 Criterion 3001 and found there were no compelling reasons for its waiver. The applicant sought review of the delegate’s decision. In November 2015 the first Tribunal affirmed the decision under review. The applicant sought judicial review and the application was remitted to the Tribunal for reconsideration. In January 2017 the second Tribunal also affirmed the decision under review. This matter was also remitted to the Tribunal for reconsideration following an application for judicial review.

4. The applicant appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, step-son and two other witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

6. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2).

7. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant entered Australia in October 2011 holding a Short Stay Business visa which ceased on 2 November 2011. The applicant made an application for a substantive visa, which was refused, and became an unlawful non-citizen in April 2013. The applicant made the application for the Partner visa in August 2013.

9. The Tribunal finds, having regard to that evidence, that the applicant last held a substantive visa before the expiry of his Business visa in November 2011. He did not have a substantive visa since that time and he was not a holder of a substantive visa at the time the application for the Partner visa was made. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

10. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii). There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that the last substantive visa held by the applicant was cancelled and the Tribunal has made a decision to set aside and substitute the cancellation decision.

11. The Tribunal has found that the applicant ceased to hold a substantive visa when his Business visa ceased on 7 November 2011. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in July 2013, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

12. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

13. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

14. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

15. The applicant provided to the delegate and the Tribunal a number of documents addressing various aspects of his relationship with the sponsor. These include evidence of cohabitation, of financial and social aspects of the relationship. For the purpose of this decision, and without a full assessment, the Tribunal is prepared to accept that the applicant and the sponsor are in a genuine spousal relationship and that such relationship has been in existence for a number of years. The Tribunal acknowledges that the present relationship may be recognised as a long term one. The Tribunal does not consider the existence of a long term relationship in itself to be sufficient  to give rise to compelling reasons for the waiver.

16. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria as it is already a criteria which must be satisfied in order to meet the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal notes the reasoning in Sidhu v MIBP[1], where the Federal Circuit Court found it was open to the Tribunal to conclude that the fact that the couple had been married was not of itself a sufficiently compelling reason to justify waiving the Schedule 3 requirements. Further, in Chan v MIBP[2], the Federal Circuit Court held that the existence of a long-term relationship does not of itself mean that the Tribunal must find that there are compelling reasons for not applying the Schedule 3 criteria.

    [1] [2014] FCCA 167

    [2] [2017] FCCA 2893 at [14].

17. The applicant provided to the present Tribunal a number of medical reports relating to the sponsor. There is a report from Ms Pollard, clinical psychologist from Effective Change Psychology. Ms Pollard indicates that the sponsor has been a client since May 2018 and suffers from symptoms of anxiety including excessive worry. Ms Pollard states that the sponsor’s condition has been exacerbated by stress associated with the visa process and her mental health would deteriorate if the applicant’s application is rejected and he is forced to return to Egypt. The applicant presented a medical report from Dr Evans who confirms that the sponsor suffers from anxiety. There is a report from Dr Lenahan and evidence of the couple approaching an IVF clinic. There are a number of medical reports that relate to brief periods and do not appear to refer to a chronic health condition, and other reports that relate to the earlier treatment received by the sponsor with no indication that the conditions persist or that the treatment is ongoing. The applicant presented a GP Mental Health Care review in relation to the sponsor dated February 2019. The Tribunal accepts the professional opinion expressed in the various reports and accepts that the sponsor suffers from a number of conditions, including anxiety.

18. The applicant subsequently provided additional evidence to the Tribunal, including several letters of support from third parties, financial records further evidencing his relationship with the sponsor and the sponsor’s medical records from 2011.

19. There is before the Tribunal a statement from the couple’s church. The pastor confirms their regular attendance and refers to the applicant’s genuine relationship with the sponsor, his close relationship with his step-son and the applicant’s involvement with church activities. The pastor’s oral evidence to the Tribunal is set out below.

20. In oral evidence, the applicant stated that he cannot return to Egypt as his passport has expired and also because he would be subject to compulsory military service. The applicant states that the embassy would not renew his passport because of the military service obligations and he would only be granted a travel document. That may be the case but whether the applicant is issued with the passport or a travel document, such a document would enable his travel to Egypt and the Tribunal does not accept that he would be unable to travel to Egypt. The Tribunal does not consider this to be a compelling reason for not applying the Schedule 3 criterion.

21. The applicant states that he would be required to undergo three years of military service and in that period he would be unable to contact his wife. The applicant referred to problems in the country and he claims if he joins the military, he might have to kill someone or be killed and he does not want to do that. The applicant referred to the revolutions in Egypt and problems with ISIS and he claims he would be given the lowest rank and placed in a dangerous position and there is a real chance that he would be killed. The Tribunal considers that assessment to be far-fetched. While the Tribunal accepts that there are ‘problems’ in Egypt, and the Tribunal acknowledges the country information submitted by the applicant concerning bombings and killings, that does not imply that the applicant himself would be killed or that he would have to kill as part of his army service. Because of the findings made below, the Tribunal does not need to determine whether the applicant’s military service obligations constitutes a compelling reason for the waiver.

22. The applicant told the Tribunal that he has been in a relationship for seven years and married for six. If he serves in the army, he would not be able to contact his wife and son for three years. The applicant states that his wife suffers from anxiety and has other health issues and on several occasions he had to take her to the hospital. The applicant told the Tribunal that his wife had several attacks in the past six months and he took her to hospital up to three times. The applicant said that he ‘sometimes’ accompanies his wife to see the psychologist and he then said he accompanied his wife once to see the psychologist and has not gone otherwise due to work commitments.

23. The applicant outlined the emotional support he provides to his wife and referred to taking her out and on holidays and the help he provides at home. The applicant states that he has to work as he wants to provide his wife with financial support. The Tribunal formed the view that the applicant’s knowledge about his wife’s medical condition and ongoing treatment was limited. He named some of the treating doctors but also said he could not recall the names of the doctors she was presently seeing, nor the name of the medication she was taking. Nevertheless, the Tribunal accepts that the applicant plays some role in contributing to his wife’s treatment and also that he has accompanied her to at least some medical appointments.

24. The applicant told the Tribunal that he has been studying Christianity and has ‘issues’ with the Muslim religion. He is not yet a Christian but he has been studying and if he has to return to Egypt, he would not have that choice and freedom of religion. The Tribunal notes that these claims have been assessed in his previous application.

25. The applicant told the Tribunal that he and his wife are operating a business together. He imports shoes from overseas and they all work together. He is the one who has all the dealings while his wife does not know much about the business and would not be able to operate the business on her own. The applicant said the business has just started and is very small. The Tribunal is prepared to accept that the applicant is involved in managing a business and despite the paucity of evidence in relation to the business, the Tribunal is prepared to accept that the business is unlikely to operate if the applicant cannot remain in Australia. However, the Tribunal is mindful that the applicant is a holder of a bridging visa and has never been granted a temporary or a permanent visa to remain in Australia. While the applicant may have chosen to form financial commitments in Australia, the Tribunal does not consider that his decision to do so in circumstances where the applicant has never been given a right to remain in Australia on a substantive visa would constitute a compelling reason for the waiver, even if there are financial implications if the business is closed.

26. The applicant states that he cannot work in construction but because of the problem with his back and he had to find another job. As the applicant has been able to find other gainful employment, the Tribunal does not consider that the applicant’s health and the resultant inability to work in a particular field constitute a compelling reason for the waiver.

27. The applicant provided evidence that he and his wife tried to have a baby through IVF. His oral evidence to the Tribunal is that they sought advice but decided not to pursue that course. The Tribunal does not consider that in the circumstances, that decision constitutes a compelling reason for the waiver.

28. The Tribunal took oral evidence from the applicant’s step-son. His evidence is that he has known the applicant for about six years and the applicant is like a father to him. He states he relied on the applicant when growing up. He referred to the relationship between the applicant and his mother and stated that his mother also relies on the applicant and he does not need to worry about her. He said his contact with the biological father has been brief and has been cut off due to the father’s psychological issues.

29. The Tribunal took oral evidence from the applicant’s partner, who spoke about the long term relationship and the support she and her son has received from the applicant. Ms Elhendy spoke about her relationship with the applicant and the support they provide to each other. She also spoke about the reason for the breakdown of the previous relationship.

30. The Tribunal took oral evidence from Pastor Lillo. He said he has known the applicant for a few years and has baptised the sponsor. Pastor Lillo referred to the applicant and the sponsor having a loving relationship and the relationship means everything to the sponsor and her son. Pastor Lillo indicated that the applicant’s departure from Australia would have significant implications for the sponsor’s well-being, given her present condition.

31. The Tribunal has considered the totality of the applicant’s claims. The Tribunal considers many of the claims he put forward to be unpersuasive. For example, the Tribunal is mindful that some of the claims have been considered in the earlier application made by the applicant and although the applicant claims he was poorly advised by his then migration agent and did not pursue that case, the applicant confirmed that he set out the substantial claims in that application and these have been considered. There are other claims before the Tribunal which the Tribunal does not consider give rise to compelling reasons, such as the applicant’s business affairs in Australia, his own medical condition and his participation in community activities in Australia. The Tribunal does not consider that such matters are of sufficient significance as to constitute ‘compelling’ reasons for the waiver.

32. Nevertheless, the Tribunal places weight on the applicant’s evidence concerning his relationship with the sponsor and her son and the sponsor’s medical records. These show that the sponsor had been diagnosed with anxiety around 2011 and has been receiving treatment since that time. Despite the applicant’s limited knowledge in relation to some of the matters concerning the sponsor’s health, the Tribunal accepts that the applicant has had some involvement in managing the sponsor’s condition and providing her with support and comfort. The Tribunal accepts the professional opinion of the sponsor’s doctor that her health may be adversely affected due to the separation with her husband. The Tribunal accepts that the sponsor’s circumstances and the nature of her relationship with the applicant may have been affected by her previous relationship.

33. The Tribunal also accepts that the applicant has played a meaningful parental role in the upbringing of his step-son. The Tribunal accepts there is a close relationship between them and a mutual reliance on each other for support. The Tribunal accepts that such matters may be affected if the applicant was required to leave Australia and delay his return.

1. The Tribunal has formed the view, on balance, that the sponsor’s unique circumstances and issues affecting her health, as well as the nature of the applicant’s relationship with his step-son and the effect that his departure from Australia would have on these relationships and the sponsor’s health do constitute, when considered together, compelling reasons for the waiver.

2. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

   Conclusion 

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

4. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

   Kira Raif
   Senior Member