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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Elhendy (Migration) [2019] AATA 3747
Case: [2019] AATA 3747
Decision Date: 30 July 2019

CaseChat Overview and Summary

The applicant, Elhendy, sought judicial review of a decision by the Administrative Appeals Tribunal concerning her application for a Partner (Temporary) (Class UK) visa, Subclass 820. The Federal Circuit Court remitted the matter for reconsideration. The core of the dispute revolved around the applicant's failure to meet Schedule 3 criteria, specifically lodging her application outside the relevant timeframe, and whether compelling reasons existed for a waiver of these requirements.

The court was required to determine whether the Tribunal had erred in its assessment of the applicant's eligibility for a waiver of Schedule 3 criteria. This involved considering whether the applicant had demonstrated compelling reasons, such as a longstanding genuine relationship, compulsory military service, business affairs in Australia, and the sponsor's medical conditions including anxiety, which necessitated the applicant's presence to provide support and comfort. The court also had to assess whether the applicant played a meaningful parental role in the upbringing of her step-son.

The court found that the applicant had met certain criteria, specifically cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. Consequently, the court remitted the application for the visa to the Minister for further consideration of the remaining criteria. The Tribunal directed that the applicant meets the specified criteria, indicating a favourable view on those particular aspects of her application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 RegulationsKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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