Mahrous v Minister for Immigration

[2018] FCCA 1146

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHROUS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1146

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the compelling reason for not applying the Schedule 3 criteria was unreasonable in that it lacked an evident and intelligible justification – whether the Tribunal erred by misdirecting itself as to the meaning of the term "compelling reasons" in cl 820.212(d)(ii) of Schedule 2 to the Migration Regulations 1994 – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, cl 820.211 of Schedule 2

Applicant: EHAB MOHAMED MOUSTAFA KAMAL MAHROUS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3549 of 2017

Judgment of: Judge Street

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Sydney

Delivered on: 8 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 8 May 2018 initialled and dated by the Court and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,530.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3549 of 2017

EHAB MOHAMED MOUSTAFA KAMAL MAHROUS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 October 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. 

2. The applicant is a citizen of Egypt and applied for the visa on 20 June 2013 on the basis of his relationship with the sponsor. On 6 January 2014 the delegate refused to grant the applicant the visa.

3. On 21 January 2014, the applicant applied for review and a differently constituted Tribunal affirmed the decision on 26 February 2015. On 19 December 2015, a Judge of this Court found that there had been relevant legal error in the decision of the differently constituted Tribunal. The matter was remitted for reconsideration. On 8 August 2016, the Tribunal affirmed the delegate’s decision. On 2 December 2016, by consent, orders were made setting aside the decision made on 8 August 2016 and remitting the matter for further hearing. That consent order and accompanying note was as follows:

   BY CONSENT, THE COURT ORDERS THAT:

   1. A writ in the nature of certiorari be issued to quash the decision of the Second Respondent, AAT reference l514426, dated 8 August 2016.

   2. A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.

   3. The First Respondent is to pay the Applicant's fixed in the amount of $7,206.

   4. The hearing listed at 10:15 am on 14 December 2016 be vacated.

   THE COURT NOTES THAT:

   The First Respondent concedes that the decision of the Second Respondent (the Tribunal) fell into jurisdictional error because it misunderstood the operation of clause 820.2l1(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth). In considering the operation of clause 820.211(2)(d)(ii), the Tribunal erroneously concluded that being in a longstanding genuine relationship, on its own, is not sufficient to establish compelling reasons for the waiver. The First Respondent concedes that there is no statutory basis for the Tribunal to reach the conclusion that the existence of a long term relationship on its own, could not give rise to a "compelling reason” for waiving the requirement that the applicant satisfy Schedule 3 criterion 3001.

The Tribunal

1. The Tribunal, in the present case noted the history to the application for review and identified the relevant law that the applicant had to meet in relation to Part 820 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The Tribunal referred to the fact that the applicant last held a substantive visa in March 2012 and accordingly, did not meet the criterion 3001 and that the Tribunal had to consider whether there are compelling reasons for not applying the Schedule 3 criteria.

2. The Tribunal invited the applicant to attend a hearing on 1 May 2017, which the applicant attended, together with the applicant’s representative and the sponsor. Following the hearing, the Tribunal wrote to the applicant on 1 May 2017, providing clear particulars in respect of matters by reason of which the Tribunal might be less likely to find that there are compelling reasons not to apply the Schedule 3 criteria, and that the inconsistency in the evidence of the sponsor and the applicant might affect the assessment of the applicant’s credibility which might be a reason, or part of the reason for the Tribunal to affirm the decision under review. The applicant, through his representative responded to the invitation on 15 May 2017. 

3. The Tribunal, in its reasons, addressed the breadth of meaning of compelling reasons and proceeded to identify the applicant’s migration history that he arrived in Australia in 2007 and that his substantive student visa expired in March of 2012. The Tribunal expressly referred to the applicant’s contention that he and the sponsor are a loving couple, have had a lengthy relationship, they met in 2010, have lived together since December 2012, and got married in May 2013.

4. The Tribunal found that if the applicant were to return to Egypt, that the sponsor would remain in Australia to ensure her safety. The Tribunal found that the applicant would not face any danger from persecution if the Schedule 3 criteria were applied to him. The Tribunal was satisfied that the applicant and the sponsor would in those circumstances have to live apart for a lengthy period.

5. The Tribunal referred to the sponsor’s evidence that she had her own room in the family home and lives there a lot of the time. The applicant alleged that the evidence of the sponsor was incorrect and that she does not have her own room, and maintained that she does not have a good relationship with her siblings. The Tribunal referred to the home being overcrowded, but the Tribunal preferred the evidence of the sponsor, that she is welcome in her family home and that she lives there for some of the time, and that she would live with the family if the applicant returned to Egypt.

6. The Tribunal referred to the emotional hardship during any lengthy separation and referred to the sponsor having said that she is afraid of the applicant and that he has threatened her. The Tribunal noted that the applicant denied that the sponsor is afraid of him and restated his evidence that they have a long and loving relationship. The applicant referred to the fact that the complaint by the sponsor to the NSW Police on the weekend before had been withdrawn.  The applicant asserted that the sponsor had made up the story about threatening her just to get out of a situation, and alleged that she had mental disorders. The Tribunal noted that in the ordinary case, fear and anxiety do not explain the giving of false evidence, and found the explanation advanced by the applicant unlikely.

7. The Tribunal referred to prescribed medication for depression in relation to the sponsor and did not accept the applicant’s explanations that she had mental health issues and found that her statement resiling from her allegations was unconvincing. The Tribunal accepted the oral evidence that had been given at the hearing that the sponsor was afraid of the applicant and that he had threatened her.

8. The Tribunal took into account the principle that the existence of love and affection is not determinative of whether there exists a married relationship, and its absence is not necessarily fatal in relation to the favourable consideration of a partner application. The Tribunal noted that it was not necessarily the case that married persons are a major source of emotional support for their spouses, and it was necessary for the Tribunal to consider whether the relationship meets the definition in s 5F of the Act.

9. The Tribunal referred to the evidence about the sponsor’s son and found that the evidence did not suggest that the sponsor’s son would be emotionally or developmentally affected if the applicant left Australia. The Tribunal referred to the applicant’s evidence about the son preferring to live with his father. The Tribunal found that the son would be more likely to return to the mother’s care if the applicant is working and has sufficient funds to meet his proper needs. The Tribunal found it is unlikely, having regard to the evidence that the son prefers to live with his father and the evidence that her alcohol consumption was a barrier to the son living with her shortly before the hearing.

10. The Tribunal was not satisfied that the applicant would be in objective hardship if he returned to Egypt, and found that any financial difficulty he faced is not a compelling reason for not applying the Schedule 3 criteria. The Tribunal took into account the psychological impact on the applicant and was not satisfied returning to Egypt would have a negative impact on his mental health.

11. The Tribunal noted the applicant raised alleged fears from general unrest and did not mention any political opinions. The Tribunal did not accept the applicant’s submission that he would suffer harm in Egypt due to the continuing human rights abuses and his opinion against the current government in Egypt, because the Tribunal found there is no convincing evidence the applicant holds or would be perceived to hold anti-government political opinions. The Tribunal was not satisfied on the evidence that there would be any risk of harm to the applicant if he were returned to Egypt because he applied for a protection visa.

12. The Tribunal referred to the submission in relation to the poor relationship between the sponsor and her ex-partner.  The Tribunal noted that the ex-partner lives in Melbourne and there is nothing to indicate that the sponsor cannot manage any communication with him about her son’s welfare, and found there is not any conflict between the sponsor and her ex-partner that could give rise to a compelling reason to waive the criteria. The Tribunal expressly acknowledged the lengthy married relationship with the sponsor and accepted that they would have to live apart for a lengthy period if the visa were not granted.

13. The Tribunal found the sponsor could manage financially without the applicant and would not be without emotional support if they lived apart.  The Tribunal also took into account that the sponsor did not support the applicant’s application for a review on the day of the hearing and was afraid of him. The Tribunal inferred any continuing relationship is troubled and was not satisfied a lengthy separation would cause the applicant or would cause the sponsor significant emotional hardship or affect her mental health or capacity to control her alcohol intake.

14. The Tribunal also found that the applicant’s continued presence is not necessary for the sponsor’s son’s psychological or developmental welfare, and is unlikely to facilitate the return of the son to the sponsor’s care. The Tribunal found that the applicant could live with his family and manage financially if he returned to Egypt, and his mental health would not suffer, and that he would not be at any particular risk of harm.  The Tribunal referred to these matters and the applicant’s preference to remain in Australia after a lengthy period of residence and the other matters raised at the earlier hearings, which the Tribunal found were not compelling reasons to waive the Schedule 3 criteria.

15. Accordingly, the Tribunal found the Schedule 3 criteria applied and that the applicant did not meet the requirements of cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review. 

Before this Court

1. The grounds of the amended application are as follows:

   1. The Tribunal erred by misdirecting itself as to the meaning of the term "compelling reasons" in cl 820.212(d)(ii) of Schedule 2 to the Migration Regulations 1994.

   Particulars

   The Tribunal "acknowledged" the evidence that the Applicant and his sponsor had a lengthy married relationship. However it failed to consider whether the length of the relationship could itself be a compelling reason for not applying the Schedule 3 criteria.

   2. Alternatively, if the Tribunal did consider whether the length of the relationship could itself be a compelling reason for not applying the Schedule 3 criteria and found that it did not, its finding was unreasonable in that it lacked an evident and intelligible justification.

Ground 1

1. In relation to ground 1, Mr Jones, solicitor for the applicant, submitted that the Tribunal had made the same error the subject of the consent order in the notation referred to above. There is no basis in the present case to find that the Tribunal misunderstood the operation of cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations.

2. There is no basis to find that the Tribunal concluded that being in a longstanding relationship on its own is not sufficient to establish compelling reasons for waiver. The Tribunal provided logical and rational reasons in support of its adverse finding that there were not compelling reasons for waiving the Schedule 3 criteria. Those reasons expressly took into account the lengthy period of the married relationship.  The reasons also took into account that the sponsor at the hearing said that she was afraid of the applicant and that the relationship was troubled. There was no error by the Tribunal in the present case of the same kind the subject of the consent note in the earlier decision. It is not relevant or necessary for this Court to consider whether or not that consent order should ever have been made.

3. Mr Jones took the Court to the reference in the Tribunal’s reasons to the parties having a lengthy relationship. Mr Jones submitted that the Tribunal should have expressly considered whether that lengthy relationship itself was a compelling reason for not applying the Schedule 3 criteria. I accept the first respondent’s submission that the Tribunal is to determine whether there are compelling reasons by reference to the circumstances as a whole in the exercise of the conferred discretion. Whilst it may be, that a single circumstance or a multitude, may give rise to there being compelling reasons, this is not a case where the Tribunal misdirected itself as to the meaning of compelling reasons in cl 820. 211(2)(d)(ii) of Schedule 2 to the Regulations.

4. On the face of the Tribunal’s reasons that are summarised above, the Tribunal took into account the circumstances as to the length of the relationship in determining whether or not those circumstances as a whole, compel the exercise of the conferred discretion. I do not accept that the Tribunal, in the present case, had to separately identify considering whether the length of the relationship itself was a compelling reason on its own for not applying the Schedule 3 criteria.  Rather, it was one of the factors that the Tribunal was entitled to take into account and on the face of the Tribunal’s reasons, this was taken into account by the Tribunal in determining whether there were compelling reasons.

5. In any event, the Tribunal did give separate consideration to this aspect given express reference to whether considered on their own or together not making out compelling reasons. The reference to consideration on their own or together not making out compelling reasons means that there was no alleged error of the kind identified in ground 1. No jurisdictional error as alleged in ground 1 of the amended application is made out. 

Ground 2

1. In relation to ground 2, Mr Jones submitted that given the length of the relationship in the present case, it was an unreasonable exercise of the discretion by the Tribunal not to find that there were compelling reasons for not applying the Schedule 3 criteria and that the finding lacked an evident and intelligible justification. The Tribunal in its reasons as summarised above, identified logical and rational considerations in determining whether or not the circumstances as a whole, made out compelling reasons. 

2. In particular, the Tribunal referred to the fact that the sponsor on the day of the hearing was afraid of the applicant. The Tribunal found that the relationship was troubled, and the Tribunal found that the lengthy separation would not cause the sponsor significant emotional hardship or affect her mental health or her capacity to control her alcohol intake.  The Tribunal also took into account the impact of the absence of the applicant on the sponsor’s son. The Tribunal also took into account that the applicant could live with his family and could manage financially if he was returned to Egypt. The Tribunal took into account that the applicant’s mental health would not suffer and that the applicant would not be at any particular risk of harm. The Tribunal also took into account the applicant’s desire to remain in Australia after his lengthy period of residence, and expressly referred to other matters raised at earlier hearings not making out compelling reasons. The Tribunal specifically added that this was the case whether considered on their own or together. 

3. The reasons summarised above cannot be said to lack an evident and intelligible justification. The reasons summarised above was logical and reasonable. There was no legal unreasonableness in the exercise of the discretion by the Tribunal in determining whether there are compelling reasons. No jurisdictional error as alleged in ground 2 of the amended application is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 June 2018