Elhendy v Minister for Immigration

[2018] FCCA 1140

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELHENDY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1140

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments in relation to all of the issues in the review – whether the Administrative Appeals Tribunal failed to give consideration to all the evidence available to it – whether the Administrative Appeals Tribunal failed to appreciate the significance of evidence provided to it concerning the sponsor’s mental health – jurisdictional error – writs issued.

Legislation:
Migration Act 1958 (Cth), ss.31, 41, 65, 352, 357A, 360, 476
Migration Regulations 1994 (Cth), reg.2.01, sch.2, cl.820.211, sch.3, sch.8

Cases cited:
SZBEL v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: AHMED MOHAMED MOHAMED ABDELHAMID ELHENDY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 307 of 2017

Judgment of: Judge Emmett

Hearing date: 3 May 2018

Date of Last Submission: 3 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 307 of 2017

AHMED MOHAMED MOHAMED ABDELHAMID ELHENDY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 9 January 2017 (“the Tribunal”) refusing the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (“Partner visa”).

Background

1. The applicant is a citizen of Egypt.

2. On 2 October 2011, the applicant arrived on a Business (Short Stay) (Subclass 456) visa.

3. On 2 November 2011, the applicant’s Business (Short Stay) (Subclass 456) visa ceased.

4. The applicant remained in Australia as an unlawful non-citizen until 7 November 2012 when he was granted a bridging visa in association with a protection visa application made on 6 November 2012.

5. On 1 March 2013, the applicant’s application for a protection visa was refused.

6. On 9 April 2013, the bridging visa associated with the applicant’s protection visa application ceased and the applicant became an unlawful non-citizen.

7. On 23 May 2013, the applicant married the sponsor, an Australian citizen.

8. On 29 August 2013, the applicant lodged an application for a Partner visa with the Department of Immigration and Border Protection. The application was made on the basis of the applicant’s spousal relationship with the sponsor. At the time the application was lodged the applicant did not hold a substantive visa. Consequently, the issue before the Tribunal was whether the applicant satisfied the relevant criteria set out in Schedule 3 of the Migration Regulations 1994 (Cth) (“the Regulations”), and if not, whether the Tribunal was satisfied there were compelling reasons for not applying the Schedule 3 criteria.

9. On 2 September 2013, the applicant was granted a bridging visa in association with the Partner visa application.

10. On 27 August 2014, the Delegate refused the applicant’s application for a Partner visa.

11. On 15 September 2014, the applicant lodged an application for review of the Delegate’s decision by the Administrative Appeals Tribunal.

12. On 14 April 2016, by consent, the Federal Circuit Court of Australia remitted the matter to the Administrative Appeals Tribunal for determination according to law.

13. On 9 January 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Partner visa.

14. On 2 February 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Partner visa (reg.2.01 of the Regulations and Schedule 1 to the Regulations).

3. Under s.338 of the Act, a decision to refuse to grant a Partner visa is a decision which may be reviewed by the second respondent.

4. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act).

5. Clause 820.211(2)(d)(ii) of Schedule 2 of the Regulations provides as follows:

   “(2)  An applicant meets the requirements of this subclause if:

   […]

   (d) in the case of an applicant who is not the holder of a substantive visa…: 

   […]

   (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.”

The Delegate’s decision

1. On 27 August 2014, the Delegate refused the applicant’s application for a Partner visa on the basis that the applicant did not meet the Schedule 3 criteria of the Regulations and therefore did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 of the Regulations in circumstances where the Delegate was not satisfied that there were compelling reasons for not applying those criteria.

2. The Delegate therefore refused the applicant’s application for a Partner visa.

The Tribunal’s review and decision

1. On 9 January 2017, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 15 December 2016, the applicant attended a Tribunal hearing and gave evidence.

3. The Tribunal’s decision record outlines the applicant’s, his migration history and the sponsor’s background, noting that they met on 1 January 2012 and married on 23 May 2013.

4. The Tribunal further noted that as the applicant did not enter Australia as the holder of a substantive visa or special purpose visa, the issue was whether the applicant satisfied the Schedule 3 criteria of the Regulations and whether compelling reasons existed to waive those criteria.

5. The Tribunal was not satisfied that the following reasons put forward by the applicant were compelling reasons not to apply the Schedule 3 criteria of the Regulations:

   i)a temporary separation between the applicant and the sponsor, and the challenges the sponsor may experience during that time,

   ii)the applicant and the sponsor’s potential conception of a child,

   iii)the relationship between the applicant and the sponsor’s son,

   iv)the assistance provided to the sponsor’s mother by the applicant,

   v)the sponsor’s health condition,

   vi)financial hardship that would arise from the applicant’s absence offshore,

   vii)lack of independent evidence about any threat against the applicant from his family or members of the community.

6. The Tribunal noted that the applicant’s return to Egypt was not reliant on him living with his family and that he could obtain employment and accommodation and live in a different locality to his family. As such the Tribunal was not satisfied that the applicant’s safety would be at risk should he continue his interest in Christianity.

7. The Tribunal went on to consider a Department of Foreign Affairs and Trade (“DFAT”) report, dated 24 November 2015.

8. The Tribunal accepted that the applicant is an Egyptian national who may be required to undertake military service on return and, should that occur, communication between the parties may be difficult. The Tribunal also accepted that the applicant may prefer not to have to complete military service. The Tribunal considered the claims that the applicant may be required to fight ISIS or be subject to abuse as speculative. The Tribunal found that the applicant’s concerns for his safety in Egypt were not a compelling reason to waive the Schedule 3 criteria.

9. The Tribunal also considered the various news articles supplied by the applicant and was not satisfied that they presented compelling reasons for not applying the Schedule 3 criteria.

10. The Tribunal was not satisfied that the applicant’s safety would be at risk should he return to Egypt to lodge the Partner visa application and, alternatively, he might consider the other options available to him.

11. The Tribunal noted that the applicant had invested $10,000 in the Partner visa application and was not satisfied that the applicant’s potential offshore visa application and the associated processing was a compelling reason to not apply the Schedule 3 criteria of the Regulations.

12. The Tribunal outlined the circumstances claimed by the applicant in relation to a waiver of the 8503 ‘No Further Stay’ condition in respect of a different visa application. The Tribunal noted that even if the 8503 condition was waived for the reasons the applicant claimed, it did not follow that the Tribunal would be satisfied that those same reasons were compelling reasons for not applying the Schedule 3 criteria.

13. The Tribunal addressed the United Nations Convention on the Rights of the Child as raised by the application, noting with specificity the principles which bound Australia. The Tribunal was not satisfied that the sponsor’s son’s circumstances was a compelling reason to not apply the Schedule 3 criteria.

14. Having considered all the circumstances, the Tribunal found that the applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 of the Regulations.

15. The Tribunal affirmed the decision under review refusing the applicant a Partner visa.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Michael Jones, solicitor.

2. As stated above, the issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, and if not, whether the Tribunal was satisfied there were compelling reasons for not applying those criteria.

3. Mr Jones confirmed that the applicant relied on the grounds contained in the Application, filed on 2 January 2017, as follows:

   “1. The Tribunal failed to give the Applicant a meaningful opportunity to give evidence and present arguments in relation to all of the issues in the review.

   Particulars

   (a) The Tribunal considered it to be an issue in determining whether there were compelling reasons to waive the Schedule 3 criteria that the Applicant could lodge a partner visa application in a third country if he would face difficulties returning to Egypt to do so. This issue was not raised in the delegate's decision and was not at any time put to the Applicant by the Tribunal to allow him to give evidence or present arguments in relation to it.

   (b) The Tribunal also considered it to be an issue that the Applicant and sponsor could discuss with their health professionals to determine what options might be available for them in Australia and offshore to achieve a pregnancy. This issue was also not raised in the delegate's decision and was not at any time put to the Applicant by the Tribunal to allow him to give evidence or present arguments in relation to it.

   2. The Tribunal failed to give consideration to all of the evidence available to it.

   Particulars

   The Applicant drew the Tribunal's attention to the fact that the Minister had found there were compelling reasons to waive condition 8503 to allow him to lodge the partner visa application. The Tribunal said that there was no “independent information” before it about the application or the reasoning of the decision maker. Either the information was among the documents given to the Tribunal by the Secretary of the Department of Immigration and Border Protection under s352(4) of the Act or the Tribunal should have notified the Secretary that the documents were relevant to the review and should have been provided.

   3. The Tribunal failed to appreciate the significance of evidence provided to it concerning the sponsor's mental health.

   Particulars

   The Tribunal had evidence that the sponsor was suffering from mental health issues and had been consulting a psychologist for some five years. It said that many partners suffered anxiety when an applicant needed to apply offshore. The Tribunal failed to take into account the difference between clinically diagnosed mental health problems and common human emotions.”

Ground 1

1. Ground 1 alleges a breach of s.361 of the Act of the nature identified in SZBEL v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”). It is common ground that neither the Delegate nor the Tribunal raised with the applicant:

   (a) the applicant’s option to apply for the partner visa from a country other than Egypt;

   (b) whether other options might have been available at some unspecified location outside Australia in relation to attempts by the couple to conceive a child using IVF.

Ground 1(a)

1. The first issue is said to arise from the following passage in the Tribunal’s decision record:

   “49. The Tribunal accepts that the applicant as an Egyptian national may be required to undertake military service should he return to his country and should this occur communications between the parties may prove difficult. It also accepts that the applicant may prefer not to have to complete military service. Other claims are that the applicant may be required to fight ISIS or that he would be the subject of abuse. These claims are speculative and are not supported by independent evidence relevant to the applicant. Ultimately should the applicant feel that these circumstances could apply to him he may consider making his application from another country other than Egypt. The Tribunal finds that the applicant’s concerns for his safety in Egypt are not a compelling reason to waive the Schedule 3 criteria.”

   (Emphasis added)

2. It was also common ground between the parties that the applicant did not satisfy the Schedule 3 criteria for the grant of the visa.

3. In those circumstances, the issue before the Tribunal is whether or not compelling reasons existed to waive the Schedule 3 criteria. Relevantly, cl.820.211(2)(d) of Schedule 2 of the Regulations is as follows:

   “(d) 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.”

4. The Tribunal accurately summarised the relevant consideration as follows:

   “19. 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.”

5. The first respondent contends that the Tribunal’s statement cited above that “Ultimately should he applicant feel that these circumstances could apply to him he may consider making his application from another country other than Egypt”, is no more than an observation by the Tribunal and was not an issue dispositive of the matter before the Tribunal. The first respondent contends that the dispositive finding was the Tribunal’s statement cited above, “These claims are speculative and are not supported by independent evidence relevant to the applicant.”

6. The applicant’s solicitor submitted that the Tribunal’s statement that the applicant may consider making his application from another country other than Egypt, denied the applicant the opportunity of providing evidence and making submissions in relation to that issue.

7. In SZBEL, the High Court of Australia, in a unanimous decision, stated at [35] as follows:

   “The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review…”

8. The paragraph in the Tribunal’s reasons cited above commences with an acceptance by the Tribunal that the applicant is an Egyptian national who may be required to undertake military service should he return to Egypt, and acknowledges that if this occurred then communications between the parties may prove difficult. The Tribunal also accepted that the applicant may prefer not to have to complete military service. The Tribunal then identified other claims made by the applicant that he may be required to fight ISIS or may be the subject of abuse as “speculative” and are not supported by independent evidence relevant to the applicant.

9. The Tribunal then stated that the applicant may feel that those circumstances (that is, being required to fight ISIS or being the subject of abuse) could apply to him, he may consider making his application from another country other than Egypt.

10. In my view, a claim that is found to be speculative and not supported by independent evidence relevant to the applicant is not necessarily a rejection of that claim. In the circumstances, the applicant’s claims that he may be required to fight ISIS and that he would be the subject of abuse, were claims that were not rejected. Therefore, it was relevant to the Tribunal’s reasoning that the applicant may consider making his application from another country other than Egypt, where he might feel that being required to fight ISIS or being subject to abuse could apply to him.

11. In those circumstances, whether the applicant could make his application from another country other than Egypt became an issue for the Tribunal, which the Tribunal was required to put to the applicant. If the applicant had been given the opportunity to address the Tribunal on reasons why he could not make his application from another country (for example, he could not obtain a relevant entry visa), it is possible that such evidence may have persuaded the Tribunal that, considered together with the applicant’s claims that he may be required to fight ISIS or be the subject of abuse (being claims not rejected by the Tribunal), there were compelling reasons for waiving the Schedule 3 criteria of the Regulations.

12. In the circumstances, the Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments in relation to all issues in the review as required by s.360 of the Act. Thereby, the Tribunal fell into jurisdictional error.

Ground 1(b)

1. The applicant contends that a similar error was made in the context of the following findings:

   “39. The parties told the Tribunal that they want to have a child. The sponsor is referred to an IVF clinic and is concerned about the difficulties in treatment should the applicant be offshore. The applicant provided the Tribunal with a copy of a referral for treatment for IVF and various pathology reports for the sponsor dated June 2016 and a referral pathology request for semen analysis for the applicant also dated June 2016. Other pathology referrals are unsigned by the parties and do not indicate that the tests have been completed. While the Tribunal accepts that the sponsor is at an age where child bearing may be less successful, it encourages the parties to discuss these matters with their health professionals to determine what options are available to them in Australia and offshore. The Tribunal is not satisfied that the parties’ possible conception of a child is a compelling reason not to apply the Schedule 3 criteria.”

   (Emphasis added)

1. The Tribunal appears to have accepted the applicant’s claim that he and the sponsor wished to have a child and to accept the evidence that the sponsor had been referred for treatment for IVF.

2. The Tribunal accepted that the sponsor was at an age where child bearing may be less successful, however, found that the parties’ possible conception of a child was not a compelling reason not to apply the Schedule 3 criteria of the Regulations.

3. The Tribunal’s expression of encouragement to the parties to discuss the issues arising from IVF treatment with their health professionals, including options that may available to them in Australia and offshore, is not a factor that was dispositive of the applicant’s claims in relation to IVF which the Tribunal had accepted. Nor was it a determinative finding.

4. I accept the submission of the first respondent that read in its proper context, the Tribunal’s “encouragement” for the parties to discuss the matters arising from IVF to determine what options were available to them in Australia and offshore, was not an issue arising in relation to the decision under review.

5. Accordingly, the Tribunal did not fail to give the applicant a meaningful opportunity to give evidence and present arguments in the review in relation to the desire of the applicant and the sponsor to have a child and the potential difficulties in treatment for IVF.

Ground 2

1. Ground 2 asserts that the Tribunal failed to consider relevant evidence available to it in the nature of the reasons that the applicant had been granted a waiver by a delegate in respect of a “No Further Stay” condition (being Condition 8503 of Schedule 8 of the Regulations) on an earlier visa application for which he had applied before applying for the present partner visa.

2. The solicitor for the applicant accepted that one administrative decision maker cannot bind another, but contended that the findings of the Delegate “were of obvious relevance to the Tribunal’s deliberations.”

3. Mr Jones submitted that s.352(4) of the Act requires the Secretary of the Department to give to the Tribunal “each other document, or part of a document, that is in the secretary’s possession or control and is considered by the secretary to be relevant to review of the decision.” Mr Jones submitted that as the documents concerning the condition 8503 waiver were not given to the Tribunal, the Tribunal should have requested those documents once it became aware of their relevance. Mr Jones submitted that the evidence was readily available to the Tribunal and that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which was easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [20]-[25] (“SZIAI”).

4. In support, the applicant read the affidavit of Winnie David, affirmed 9 April 2017, annexing a transcript of the Tribunal hearing. The relevant part of the transcript is as follows:

   “Q. Now, explain to me.

   A. INTERPRETER: No, I'm talking about the reasons of the last application that I applied, and because I'm not allowed to apply here, I have to leave Australia and apply from there.

   Q. When you say they accepted the reasons and you're saying it was the last application, what is the last application?

   A. INTERPRETER: Because there was no further stay, so they allowed me to apply from here, about marriage, religion, and the relationship with her son.

   Q. I think you're talking about a waiver of the 8503 condition which prevents an applicant making an application onshore, so from what you're saying I think you would have applied for a waiver of that condition and that was granted.

   A. INTERPRETER: Yeah. Because it was the last visa and it was expired so I had to leave the country.

   Q. Yes. You're saying that you applied for a waiver of the 8503 condition. Is that right?

   A. INTERPRETER: Yes, it was granted--

   Q. Yes, they waived the 8503 condition to allow you to make an application onshore. They're not accepting the reasons you gave for the grant of a visa.

   A. INTERPRETER: Yeah. They accepted that there was troubles there in Egypt and there is a risk on my life.

   Q. Yes, they accepted what you provided to waive that condition to allow you to make an application onshore.

   A. INTERPRETER: But why they rejected me again and they said you have to go and apply from overseas.

   Q. You're confusing things a little bit. I don't have this information in front of me, so what I'm saying is what I understand about that condition 8503. I would understand that a visa that you held had that 8503 condition on it, and that condition prevents you making an application onshore, and I suspect that you applied for the waiver of that condition so you could lodge the partner visa. Is that correct?

   A. INTERPRETER: Yeah, I think it's like that.

   Q. That they waived the 8503 condition is that they accepted the reasons you put forward for that waiver, but not for the grant of a visa. Waiving that condition allowed you to make the application onshore. The reason why you weren't granted your partner visa is because you don't meet the schedule 3 criteria.

   A. INTERPRETER: But the reasons of waiving this condition is the same reasons that I can't go back to Egypt. They rejected this and accepted the other one.

   Q. Well, it's not quite like that actually. The department accepted those conditions to waive the 8503 criteria to allow you to lodge onshore, so you made an application. You made a partner visa application onshore, and that application was refused because you didn't meet the schedule 3 criteria and you didn't meet that criteria, as I've explained already, because you didn't hold a substantive visa for more than 28 days prior to lodging the application that we're reviewing now.

   Now, if you've seen the 8503 reasons you provided to the department and they accepted those reasons to waive and those are the reasons you put forward to the Tribunal, the Tribunal will be considering those reasons because you've put them forward to the Tribunal.

   A. INTERPRETER: Yeah, I - probably I provided some reasons but now there's evident, new evident it's escalating, so there's changes so I have other reasons.

   Q. Have you told me those reasons today, because I have asked you to give me those reasons.

   A. INTERPRETER: Because you asked me of the reasons of the - at the time of the application, that's why--

   Q. No, no, no. We're not looking at the time of application. That's what I told you earlier. We're not looking at time of application.

   A. INTERPRETER: What I understood that you want the reasons when I applied that application.

   Q. No, no. As I explained to you earlier in my introduction, because of the Federal Circuit Court's decision, reasons - compelling reasons can apply at any time, including after the time of application. So are you going to give me more evidence, because if you are, I'm going to ask your partner to leave the room.”

5. Fairly read, the transcript reveals that having obtained a waiver of condition 8503 in respect of a “No Further Stay” condition on the basis of compelling grounds found by a previous delegate in relation to a different visa application, the applicant could not understand why the Delegate in the proceeding before this Court had not made a similar finding.

6. The Tribunal made the following findings in respect of that issue:

   “53. Additionally the applicant told the Tribunal that he obtained a waiver of the 8503 condition. In requesting the waiver he provided the same reasons as he is giving the Tribunal for not applying the Schedule 3 criteria. He said that the reasons were accepted for the waiver, and they should be accepted for not applying the Schedule 3 criteria. An 8503 'No Further Stay' condition prevents the visa holder from applying for many temporary and permanent visas while they are in Australia. There is no independent information before the Tribunal about the applicant’s application for the waiver or the reasoning of the decision maker in granting the waiver. Even if the Tribunal accepted that the 8503 condition was waived for the reasons the applicant claims, it does not follow that the Tribunal is satisfied that those same reasons are compelling reasons for not applying the Schedule 3 criteria and this is discussed throughout this decision.”

7. The last sentence cited and bolded above makes clear that even if the Tribunal had accepted that condition 8503 had been waived for the same reasons that the applicant claims before this Tribunal, it does not follow that the Tribunal is satisfied that those same reasons are compelling reasons for not applying the Schedule 3 criteria.

8. As submitted by counsel for the first respondent, the waiver of condition 8503 of the Regulations (being that the holder “will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”) was regulated by the following legislative scheme:

   a)Section 41(2A) of the Act provides for the waiver by the Minister of conditions imposed on visas under certain circumstances provided for in reg.2.05(4) of the Regulations.

   b)The circumstances in which the Minister can waive a condition under reg.2.05(4) of the Regulations are that since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed over which the person had no control and which resulted in a major change to the persons circumstances.

9. Clause 820.211(2)(d) of the Regulations concerns not applying the Schedule 3 criteria that would otherwise apply in relation to visa applications made by persons who do not hold a substantive visa when applying for a partner visa.

10. In other words, whilst both schemes speak of “compelling circumstances”, the regulations to which they apply contemplate different circumstances.

11. I accept the first respondent’s submission that the fact the applicant may have raised similar claims to waive condition 8503 does not create any obligation on the Tribunal to investigate, search for, or enquire into the applicant’s assertion that such a waiver was given. The applicant did not provide any evidence to the Tribunal or this Court in support of his bare assertion to the Tribunal that the Minister had accepted his reasons and waived condition 8503.

12. In any event, whatever the reasons given in a previous administrative decision relating to an application to waive condition 8503 in respect in an earlier and different visa application, it has no probative bearing on the decision that the Tribunal was required to make in the present case. As the Tribunal stated, it is was matter for this Tribunal to be satisfied in applying the relevant law to the facts as found as to whether the Schedule 3 criteria should be waived.

13. In the circumstances, there was no obvious enquiry about a critical fact that could have had any bearing on the review (see SZIAI).

14. Accordingly, there was no error on the part of the Tribunal in failing to obtain a Delegate’s reasons in respect of a different and earlier visa application by the applicant.

15. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to appreciate the significance of evidence provided to it in relation to the sponsor’s mental health. In support, the applicant relied on the following findings made by the Tribunal:

   “42. The Tribunal accepts Frank Breuer’s information about the sponsor’s health. The Tribunal understands that the parties’ separation may cause the sponsor anxiety. These circumstances are experienced by many partners where it is necessary that an applicant make an offshore visa application. The Tribunal considered the evidence that the sponsor has consulted with Mr Breuer since 2011. It encourages the sponsor to manage her condition with the guidance and treatment from her health professionals during any separation from the applicant. The Tribunal is not satisfied that the sponsor’s health condition is a compelling reason not to apply the Schedule 3 criteria.”

   (Emphasis added).

2. Mr Jones submitted that the Tribunal did not understand that the evidence before it from Mr. Frank Breuer, registered psychologist, was a professional opinion concerning a person suffering from a clinical disorder, rather than a person who might experience normal levels of anxiety.

3. The first respondent submitted that the Tribunal had had regard to Mr Breuer’s report and gave reasons why it was not a compelling reason not to apply the Schedule 3 criteria. Counsel for the first respondent submitted that the Tribunal’s assessment of the information relating to the sponsor’s mental health was open to it and that it was a matter for the Tribunal to assess and consider whether the reason was compelling.

4. I do not accept the submissions of the first respondent.

5. Mr Breuer’s report dated 16 May 2013 is as follows:

   “To whom it may concern

   I hereby confirm that Frances Scavia, DOB 9 August 1972, has seen me since July 2011 for the treatment of her Anxiety disorder. She reported that she has been in a relationship with her fiance and that the wedding is planned to take place soon on the 23 May 2013. Frances reported that she is very happy to have found a solid partner with which she feels comfortable and stable. She reported that the chances are her partner will be sent back to Egypt by the Australia Government and that she has grave concerns for his safety and welfare as he is a Muslim converted Christian.

   On the background of Frances’ anxiety disorder, the threat of her fiance being sent to his mother country aggravates her pre-existing worries and levels of anxiety, which could certainly lead to an episode of excessive anxiety in the case of deporting her fiance. Please consider this when making decision.

   Please do not hesitate to contact me should you like to discuss any of the above.”

   (Emphasis added)

6. Mr Breuer’s report discloses a diagnosed anxiety disorder and the likelihood that an episode of excessive anxiety arising from deporting the applicant was likely to be suffered by the sponsor. The Tribunal stated that it understood that the parties’ separation may cause the sponsor anxiety and that those are circumstances experienced by many partners where it is necessary that an applicant make an offshore visa application. However, the Tribunal’s statement that the parties’ separation may cause the sponsor anxiety does not recognise that the applicant has been diagnosed with an anxiety disorder by Mr Breuer, and for which he had been treating the sponsor for the past two years. Mr Breuer opined that the anxiety the sponsor may suffer could certainly be excessive.

7. The Tribunal’s reasons failed to appreciate that the separation in the case of the applicant and the sponsor “could certainly lead to an episode of excessive anxiety.” That is very different to circumstances experienced by many partners where it is necessary that an applicant make an offshore visa application causing anxiety to one or both of the parties.

8. I accept the applicant’s submission that the Tribunal failed to take into account the difference between clinically diagnosed mental health problem and common human emotions.

9. Accordingly, in the circumstances, the Tribunal failed to appreciate the significance of evidence provided to it concerning the sponsor’s mental health. In so doing the Tribunal fell into jurisdictional error.

Conclusion

1. In circumstances where the applicant has demonstrated jurisdictional error on the part of the Tribunal arising from Ground 1(a) and Ground 3 of the initiating application, filed on 2 February 2017, the decision of the Tribunal should be set aside and the matter remitted for determination according to law.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  22 May 2018