Mensah v Minister for Home Affairs and Anor

[2018] FCCA 1204

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENSAH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1204

Catchwords:
MIGRATION – Whether the Tribunal fell into jurisdictional error by misapplying the test of compelling reasons to wave application of Schedule 3 criteria – whether sponsor’s health constitutes compelling reasons – whether the Tribunal fell into jurisdictional error by failing to take into account a relevant consideration – no error found.

Legislation:

Migration Act 1958 (Cth), ss.65, 476, 477

Migration Regulations 2004 (Cth), cl.820.211, schedule 3

Cases cited:

Waensila v Minister for Immigration and Border Protection & Anor (2016) 241 FCR 121; [2016] FCAFC 32

Applicant: KWABENA BANOR MENSAH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 511 of 2018

Judgment of: Judge Baird

Hearing date: 10 May 2018

Date of Last Submission: 10 May 2018

Delivered at: Sydney

Delivered on: 10 May 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Mills Oakley

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 511 of 2018

KWABENA BANOR MENSAH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth), for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, dated 15 February 2018, which affirmed a decision of a Delegate of the First Respondent, the Minister for Home Affairs, to refuse to grant the Applicant a Partner (Temporary) (Class UK) Visa under s.65 of the Act.

Background and claims

1. The Applicant is a citizen of Ghana.  On 27 August 2016, he applied for the Visa.  The Applicant’s last substantive visa expired on 9 October 2015.  He remained unlawfully in Australia until lodging the present application.  Accordingly, the Applicant applied for the Visa at a time when he was not the holder of a substantive visa.

2. Relevantly, at the time of application, the Visa contained one subclass, subclass 820.  Under  sub-cl.820.211, the requirements for the grant of the Visa included that, at the time of the application:

   (a)the Applicant is the spouse or de facto partner of a person who is an Australian citizen, or Australian permanent resident, and is sponsored by that person (see sub‑cls.820.211(2)(a) and (c)); and

   (b)if the Applicant is not the holder of a substantive visa – and I note the Applicant was not at the time – the Applicant satisfies criteria 3001, 3003 and 3004 in Schedule 3 of the Migration Regulations 2004 (Cth), unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

3. The Applicant made his Visa application on the grounds of being in a spousal relationship with an Australian citizen, his wife, Mrs Carmen‑Lee Mensah.  The Delegate refused to grant the Applicant the Visa on the basis that the Delegate was not satisfied that the Applicant met the criteria for grant.

4. The Delegate found that the Applicant did not meet sub‑cl.820.211(2)(d)(ii), in that the Delegate was not satisfied that the Applicant met the requirements of criteria 3001 in Schedule 3, and was not satisfied that there existed any compelling reasons not to apply criteria 3001.  The application was refused. 

5. As I have said, the Applicant applied to the Tribunal, and on 15 February 2018, the Tribunal affirmed the decision under review.

6. Both the Applicant and the sponsor – his wife – appeared before the Tribunal to give evidence, accompanied by their migration agent.  The sole issue before the Tribunal was whether the Applicant met the Schedule 3 criteria, and if not, whether there were “compelling reasons” to waive the criteria.  As I have noted, and as the Tribunal observed correctly, the Applicant did not hold a substantive visa at the time of his application for the Visa, and the sole issue remaining for consideration was whether there were compelling reasons to waive the criteria.

7. At [18] of its decision, the Tribunal noted that the main focus of the Applicant’s submissions to the Tribunal as to why the Schedule 3 criteria should not be applied related to the existing health of the sponsor and the support he provides her.  At [19] the Tribunal noted the conditions from which the sponsor is suffering:  depression, mental symptoms, high blood pressure, hypertension, ventricular hypertrophy, carpal tunnel syndrome, back pain, and hypercholesterolemia.  I observe that these conditions are reflected in the Applicant’s grounds for judicial review before this Court.

8. Before the Tribunal, the Applicant claimed that he supported the sponsor emotionally and physically.  The Tribunal had regard to a report from Dr Richard Marshall, the sponsor’s general practitioner.  At [19] of the decision, the Tribunal noted that in Dr Marshall’s opinion, a return of the Applicant to Ghana would likely have an impact on and exacerbate the sponsor’s depression.

9. The Tribunal found that that the Applicant’s claim that the continued physical presence of the Applicant was vital to the sponsor’s wellbeing, was undermined by the Applicant’s and the sponsor’s evidence that the Applicant spent approximately half the week away from Sydney for reasons of his work in security.  Further, the Tribunal was not satisfied that Dr Marshall’s evidence raised a compelling reason to waive the Schedule 3 criteria, noting that the sponsor had previously managed her depression with the support of Dr Marshall since 2008, and that it had no reason to believe that the support, care and treatment of Dr Marshall will not continue in the forthcoming years. 

10. At [25] of its decision, the Tribunal gave weight to the emotional support that the Applicant provides the sponsor, but was not satisfied that it could be only provided “under one roof”.  The Tribunal found that it was not unusual for couples to live separately for a period of time while an offshore visa application is processed.

11. At [28] of its decision, the Tribunal states that it makes no assessment as to the nature of the Applicant’s relationship with the sponsor, and has accepted at face value the claims made by the parties that they were, and continue to be, in a genuine relationship together, and the circumstances of that claimed relationship for the purposes of its decision.  The Tribunal noted that if the relationship was genuine, the Applicant would be able to apply for a Partner visa in the future, and any period of separation was likely to be temporary.

12. I note that the Tribunal did express reservations about the Applicant’s motivations for applying for a Partner visa, noting that the Applicant had come to Australia on a short stay visa, that he breached his visa by overstaying, and that he quickly developed a bond for the sponsor, and that he had four children in Ghana.

13. The Tribunal was not satisfied, in the circumstances of the case, that even if it were satisfied that the Applicant and the sponsor had been in a long‑term genuine relationship, that this would constitute a compelling reason not to apply the Schedule 3 criteria. The Tribunal concluded it was not satisfied that compelling reasons existed for not applying the Schedule 3 criteria, and accordingly, found that the Applicant did not meet the circumstances of clause 820.211(2)(d)(ii) (at [38]).

Grounds of review

1. On 27 February 2018, the Applicant filed an application for judicial review of the Tribunal’s decision. I note in the application that the Applicant appeared to be seeking an extension of time under s.477(2) of the Act, however the application appears to have been filed within 35 days of the date of the Tribunal’s decision, and no extension of time is required. Accordingly, the application proceeded before the Court today.

2. The application contains a sole ground of review as follows (without alteration):

   (1)My wifes health – depression, left ventricular hyertrophy, hypercholesterlaemia, carpel tunnel syndrome, back pain.

The proceeding in this Court

1. The Applicant appeared unrepresented before the Court today, assisted by an interpreter.  When I asked the Applicant whether he relied on the sole ground contained in the application (which I read out), he sought to add a ground:

   My marriage, when the member refused, my wife is not relevant, and this is what is bothering me.

2. The Minister’s counsel indicated he was in a position to address both grounds that the Applicant sought to rely on, and I gave leave to the Applicant to rely on both grounds.

3. I have taken this additional ground to mean that the Applicant is “bothered” by any suggestion in the Tribunal’s decision that the marriage was arranged.

4. At the outset of the hearing, I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision has legal problems – that is, that it is affected by a mistake going to the jurisdiction of the Tribunal.  I explained that the role of the Court is different to that of the Tribunal, and that the only issue before the Court is whether or not the decision of the Tribunal was made according to the law.  I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. I also explained to the Applicant that the ground in the application, and the additional ground stated orally, are grounds that address the facts of the matter (the merits), and that it is not the role of this Court to review the merits of the decision of the Tribunal.

6. The Applicant relied on eight affidavits before the Court. I granted leave to the Applicant to read each of those affidavits, and admitted them into evidence, subject to relevance.  In relation to one affidavit of the Applicant’s wife, Mrs Mensah, made 19 March 2018, however, I accepted the annexure to that affidavit as submission.  The submission is stated as follows (without alteration):

   1. AThe paragraph 17 statement is incorrect. Waensila refers to what compelling circumstances which are by reference to the explanatory Memorandum. (2 year relationship and or child) The cases referred to are irrelevant.

   (I interpose, Mrs Mensah is referring Waensila v Minister for Immigration and Border Protection & Anor (2016) 241 FCR 121; [2016] FCAFC 32.)

   2. BHealth of the sponsor is relevant and the statement at Paragraph 24 (page 5) shows the tribunal unwilling to accept the uncontradicted evidence of the GP.

   3. CParagraph 32 and 33 the tribunal misstates the EM. 

   (I understand “EM” to mean Explanatory Memorandum.)

   4. DParagraph 35 is incorrect as in paragraph 37. 

7. When I asked the Applicant, Mr Mensah, whether he had any oral submissions to make, he submitted to the effect: 

   First, the Tribunal did not look at his wife’s illness. 

   Secondly, the Tribunal [said] the marriage was an arranged marriage. The Tribunal didn’t look at it.

   Mr Mensah said had nothing more at this point.

Consideration

1. I first intend to deal with the affidavits upon which the Applicant relies.  In support of the application the Applicant refers to medical conditions of his wife, and seeks to rely upon various affidavits of his wife, to which are attached various medical documents, and hospital records relating to Mrs Mensah.  The Applicant also relies upon affidavits of Ms Louise Kennedy, Ms Ruth Rogers, and Ms Susan Moore, each of which attests to witnessing of the Applicant and his wife’s marriage, or annexes a copy of the marriage certificate.  These affidavits, however, are made after the Tribunal’s decision, go to the merits, and the medical evidence is also concerned with matters arising after the decision.  They are irrelevant to establishing any fact in issue in this proceeding: they do not have relevance to the question of whether the Tribunal fell into jurisdictional error.

2. It is well established that it is not the role of this Court to undertake a merits review.  Generally, it is not the role of this Court to step into the shoes of the Tribunal as to the facts found by the Tribunal.  To the extent thus that the Applicant refers to such matters as his wife’s health in order to satisfy the Court that there are, or were, compelling reasons for the Tribunal not to have applied the Schedule 3 criteria, consideration of such matters is outside the role of this Court.

3. It is clear from [17]-[18] of its decision, that the Tribunal was alive to the fact that the circumstances for consideration may arise at any time, including after the Visa application is made.  That is, that circumstances which constitute “compelling reasons” for not applying the Schedule 3 criteria can arise after the application is made, and up and including the time that the Tribunal makes its decision.  The Tribunal referred correctly to, and applied, Waensila.  Indeed, the Tribunal considered the submissions of the Applicant and the sponsor’s GP’s report which went to the sponsor’s health as then current circumstances for consideration.  Accordingly, I do not accept submission 1. A in Mrs Mensah’s annexure (the reference to [17] of the Tribunal decision).  Compelling circumstances may arise at any time, and the Tribunal properly so considered.

4. As to the submission in paragraph 2. B of the annexure to Mrs Mensah’s affidavit, the Tribunal did refer to Dr Marshall’s report at [19] (as I have said), and at [23] of its decision.  At [23], the Tribunal stated that it had “… carefully considered the correspondence of the sponsor’s GP, Dr Richard Marshall”, but it did not find any compelling reason to waive the Schedule 3 requirements.  The submission at paragraph 2 B otherwise asks this Court to reconsider the merits of the Tribunal’s decision.

5. I have referred to [28] of the Tribunal’s decision, in which the Tribunal states that it accepts at face value the claims made by the parties as to their genuine relationship.  As [28]-[37] of the Tribunal’s decision shows, it assumed for the purposes of its decision that the parties were in a genuine relationship, but its focus was not on the genuineness of the relationship as a question it had to determine in deciding whether or not there were compelling reasons.  This is because it was focusing on what circumstances would satisfy it that would constitute compelling reasons to waive the application of Schedule 3 criteria and so permit an applicant to make a partner visa application onshore.

6. As Mr Johnson for the Minister observed, it is understandable that the Applicant was unhappy – as Mr Mensah expressed it, that he “was bothered” - by the possible imputation arising from the Tribunal’s observations that the marriage might be arranged, and the Tribunal’s observations at [29] as to its lack of satisfaction with the explanation of the development of the relationship.  As I read the Tribunal’s decision, however, the Tribunal accepted that it is a basic requirement for a partner visa for the Applicant to have a genuine spousal relationship (see at [31]-[32]), but in the present case, the relationship, or the fact that the parties faced a temporary separation, did not constitute circumstances compelling the Tribunal to waive the Schedule 3 criteria.  The Tribunal’s focus was on an issue other than the question whether the parties were in a genuine relationship: whether there are compelling reasons to waive the requirement that the Applicant make the Visa application onshore.

7. Whilst the Tribunal said at [33] that it was mindful of the examples in the Explanatory Statement, the Tribunal correctly observed at [34] that it was required to apply the legislation, and that it is the meaning of the statutory text with which the Tribunal’s task is concerned.  As the Tribunal correctly stated at [35] “the examples only may justify waiver …, they do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria.”  The submissions made in paragraphs 3. C and 4. D of the annexure to Mrs Mensah’s affidavit otherwise seek an impermissible merits review, and I do not accept them. 

Conclusion

1. The Tribunal was alive to its task of determining whether compelling reasons existed, and it assessed the circumstances placed before it of the Applicant’s sponsor’s health and wellbeing, as it was required to do.  I find that the Tribunal did not fall into jurisdictional error. 

2. The Applicant’s grounds do not demonstrate any jurisdictional error of the Tribunal.  The medical evidence, and other evidence contained in the filed affidavits, post-date the Tribunal’s decision, and do not demonstrate jurisdictional error.

3. I have heard Mr Mensah’s expression of love and the mutuality of that love, and it is not for this Court to doubt the genuineness of his declaration, however consideration of it is outside this Court’s purview.

4. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:  

Date:  14 May 2018