Mohamed v Minister for Immigration
[2019] FCCA 2441
•6 August 2019 & 9 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMED v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2441 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of the Delegate of the Minister for Immigration not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – Partner visa application not lodged within 28 days of last substantive visa held and therefore not complying with Criterion 3001 – no “compelling reasons” for not applying Criterion 3001 – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65 Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 |
| Applicant: | MOUSTAFA MOHAMED GHOUNEIMI MOHAMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3717 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 August 2019 & 9 August 2019 |
| Delivered at: | Sydney |
| Orders pronounced: | 6 August 2019 |
| Delivered on: | 6 August 2019 & 9 August 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Zinn appeared on 6 August 2019 and Mr J. Pipolo appeared on 9 August 2019. |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 30 November 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,400.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 27 September 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3717 of 2017
| MOUSTAFA MOHAMED GHOUNEIMI MOHAMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
6 August 2019
Introduction
The Applicant is a male citizen of Egypt aged 37 years, having been born on 21 November 1981.
By Application filed in this Court on 30 November 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 November 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 February 2016 refusing to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa, and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 13 July 2006 on a Student (Class TU) (Subclass 572) visa (Student visa). That Student visa ceased on 10 November 2008 and on that date he was granted a further Student visa which ceased on 6 March 2012. He was then granted a further Student visa which ceased on 10 March 2015, which was the last substantive visa held by him. On 23 December 2015 he applied for a Protection (Class XA) (Subclass 866) visa (Protection visa), which was ultimately refused by a decision of the Refugee Review Tribunal of 5 September 2014.
On 16 February 2015 the Applicant lodged a second application for a Protection visa, which application was refused on 7 July 2015. He applied on 26 March 2015 for a further Student visa which was refused on 5 May 2015 and by its decision dated 15 October 2015 the Migration Review Tribunal found that it had no jurisdiction to review this refusal of Student visa decision.
On 11 August 2015 the Applicant applied for the Partner visa based on his spousal relationship with an Australian citizen, Ms Amanda Michelle Taylor (the sponsor), whom he had married on 17 June 2015 and who was the sponsor for his Partner visa application.
I note that the grant of a Partner visa comprises a two stage process, because the effect of cl.801.221(1) of the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
Statutory provisions for the Grant of a Partner Visa
As at the date of application for the temporary Partner visa, the Applicant had to satisfy cl.820.211 of Sch.2 to the Regulations. Relevantly, cl.820.211(1) and (2) provided as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(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.
(emphasis added)
As at the date of application, the Applicant also had to satisfy the definition of “spouse” contained in s.5F of the Act, which relevantly provided as follows:
5FSpouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
9 August 2019 – Resumption of Delivery of Judgment
[All right. I will just set the scene. This matter was heard on 6 August 2019, a few days ago. The applicant in his protection visa application said that he spoke functional English. He has been in Australia since 2006, and during that time, he has been studying on two student visas. However, he wished for the advantage of an Arabic interpreter, and the hearing on 6 August 2019 was conducted partly in English and partly through the interpreter. Unfortunately, at an early point in me delivering judgment, the telephone connection which the interpreter was using to interpret in court was lost. In those circumstances, I regarded it as appropriate to adjourn the delivery of the rest of my judgment until today, and I will now take up where I had left off delivering judgment on 6 August 2019…]: see TP 2.17-27.
As noted in [3] above, the Applicant’s last substantive visa ceased on 10 March 2015. This meant that at time of application for the temporary Partner visa he had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required him to have made his application within 28 days of 10 March 2015, namely by 7 April 2015. However, he had made his Partner visa application on 11 August 2015, some four months too late. Accordingly, it was necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see cl.820.211(2)(d)(ii) of the Regulations, reproduced at [8] above.
I note that the criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.
Decision of Delegate
In her Decision Record of 15 February 2016, the Delegate recorded that the Applicant’s last substantive visa ceased on 10 March 2015, more than 28 days prior to the lodging of his Partner visa application on 11 August 2015, and so the Applicant did not meet Criterion 3001.
The Delegate then turned to consider whether there were compelling reasons to waive Criterion 3001 and whether the Applicant and sponsor were in a genuine and continuing spousal relationship. She had regard to a Psychological Assessment Report of the sponsor dated 2 January 2016 from a psychologist, Mr Kasim Abaie (psychological report) which indicated she had “high levels of depression, anxiety and stress”.
Nevertheless, in the result the Delegate found that there were no compelling reasons to waive Criterion 3001 and that therefore cl.820.211(2)(d)(ii) was not met and she refused to grant the Partner visa to the Applicant.
Tribunal Decision
The Applicant applied for merits review of the decision of the Delegate on 27 February 2016 and a differently constituted Tribunal affirmed the Delegate’s decision on 15 June 2016, but this Tribunal decision was set aside by consent in this Court on 2 September 2016 and the review application was remitted for re‑hearing to the Tribunal.
Following the remittal to the Tribunal it wrote to the Applicant on 12 December 2016 inviting him to attend a hearing before it on 11 January 2017, which he did and where he provided documents including tenancy documents, bills, bank statements and a statement from the sponsor. I note that in his Response to Hearing Invitation form dated 9 January 2017 the Applicant advised the Tribunal that the sponsor would not be attending the Tribunal hearing.
At [2] of its Decision Record, the Tribunal stated as follows:
[2] The Tribunal took into account the documentary evidence in the Department file and Tribunal’s files (two), including material handed to the Tribunal at a public hearing held 11 January 2017. The Tribunal also took into consideration the oral evidence of the applicant at the public hearing. The applicant offered the oral evidence of his sponsor at that hearing - via telephone (she did not appear in person). The Tribunal mistakenly concluded the hearing without taking the oral evidence from the applicant’s sponsor. The Tribunal wrote to the applicant’s agent and offered to convene another hearing to take the sponsor’s evidence, or indicated it would be prepared to consider a written statement from the sponsor. The applicant subsequently provided the Tribunal with a written statement from his sponsor in addition to a medical report.
(emphasis added)
The written statement from the sponsor received by the Tribunal after the hearing on 11 January 2017 referred to in [2] of the Decision Record was in fact a statutory declaration of the sponsor who deposed to having “a rare heart condition called pulmonary arterial hypertension” and of her general reliance on the Applicant (statutory declaration). The medical report referred to was dated 30 January 2017 (medical report) and in substance stated as follows:
Amanda Bunting attended this medical centre on 30 January 2017. She suffers from pulmonary hypertension which is a heart condition that can lead to dizziness, fainting episodes, shortness of breath and chest pain on exertion.
At [4] of its Decision Record the Tribunal found that the Applicant had to satisfy Criterion 3001 because his Partner visa application was lodged on 11 August 2015, more than 28 days after 10 March 2015.
At [6] of its Decision Record the Tribunal summarised the compelling circumstances claimed by the Applicant, as follows:
[6] The applicant claimed his sponsor’s medical ‘condition’ required him to stay with her because of the support he provides her. To support his claim the applicant provided a copy of a medical report (post-hearing) which states the sponsor suffers from pulmonary hypertension. The medical report (folio 47) is brief and does not state the nature of the support either required by the sponsor, or given by the applicant. The applicant did not elaborate in detail about the nature of his support during the public hearing, except to state that he needed to be by her side to support her, and to drive her to medical appointments because she does not drive.
At [7] of its Decision Record the Tribunal recorded that it was accepted at the Tribunal hearing by the Applicant that the psychological report was wrong in erroneously stating:
During the sessions [the sponsor] reported to me the traumatic events related to her previous marriage and abuse. The client stated that she was in different kinds of abuse during her previous marriage;
and that in preparing the psychological report the psychologist had confused the sponsor with a previous patient in that regard.
The error in the psychological report was that in truth the sponsor had never been married or in a de facto relationship, and so at [7] of its Decision Record the Tribunal stated as follows:
[7] Previously, the applicant has provided the Department of Immigration with a report from ‘Today psychological consultancy services’. When quizzed by the Tribunal about the contents and findings of that report as it related to the sponsor having suffered family violence the applicant advised the Tribunal the report was wrong (in that regard). The applicant advised the Tribunal that the psychologist confused the sponsor with the previous patient. This explanation did not seem plausible to the Tribunal, nonetheless the Tribunal advised the applicant that it may place little or no weight on that report if the Tribunal could not be certain the medical professional had actually authored a report about the sponsor, and not as the applicant claims, the psychologist’s ‘previous patient’. As the applicant himself was of the view the psychologist confused his sponsor’s report with the patient seem prior, and notwithstanding the seeming implausibility of such, the Tribunal places no weight on this report in determining the medial condition or state of the sponsor for the purposes of determining whether to waive the Schedule 3 criteria or not because it cannot be certain that report is about the sponsor herself.
In the result the Tribunal concluded at [11] of its Decision Record as follows:
[11] The Tribunal’s consideration of the parties’ circumstances were also considered collectively, that is combined, and with the broadest possible regard to every aspect of their lives as presented in evidence by the applicant and others to the Tribunal. The applicant has was unable to satisfy the Tribunal that the reasons provided, taken either individually or together, amounted to compelling reasons to cause the Tribunal to not apply the Schedule 3 criteria in the applicant’s case. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is no evidence or suggestion the alternative criteria in cl.820.211(3) – (9) apply.
Accordingly, the Tribunal affirmed the decision of the Delegate.
Grounds of Attack on Tribunal Decision in this Court
The two Grounds relied upon by the Applicant are as follows:
1. I informed the Tribunal that the day of the hearing was very hot and my wife was not fit enough to travel to the hearing. I explained that my wife was waiting to be interviewed by phone. The MRT did not call my wife. We were provided with the option after hearing to submit medical report of her condition. If the MRT had called my wife they would have been able to ask the questions that the doctor did not address.
2. My wife submitted a medical report stating that she has pulmonary hypertension and explains the actual symptoms she suffers from. The Tribunal felt that this report was not enough and did not describe how I assisted her. The Tribunal should have let me know that it wanted more information from her doctor or from my self.
Consideration
Ground 1
The only evidence in relation to this Ground is at [2] of the Decision Record of the Tribunal. I find that at the Tribunal hearing the Applicant, who had two days before informed the Tribunal that the sponsor would not be attending the hearing, indicated that the sponsor was available to give evidence on the telephone and that the Tribunal member intended to phone her before the Tribunal hearing concluded, but through oversight the Tribunal member concluded the hearing without having done so.
However, by email of 18 January 2017 the Tribunal offered the following choice to the Applicant through his migration agent:
Dear Ms Nicolas,
I refer to the hearing held on 11 November 2017 for the above mentioned applicant.
Given oral evidence was not taken from the applicant’s partner (via telephone), the Tribunal can either accept a statement from her in writing, or convene another hearing to take evidence (if the applicant elects to do so). The applicant had made her available (via telephone), and the Member had intended to contact her, nonetheless this did not occur during the hearing.
Please advise how the applicant would like to proceed.
The Applicant’s migration agent sent an email in response on 23 January 2017, which stated as follows:
Dear Officer,
Please be informed that the Applicant’s spouse is currently preparing a statutory declaration in relation to her medical condition and dependence on her husband and has requested medical certificates that will be forwarded to the MRT as soon as available.
Then by email of 7 February 2017 the statutory declaration and medical report were sent to the Tribunal. There was no request at that time for any further hearing or for the Tribunal to ring the sponsor.
The simple fact of the matter is that the Tribunal committed an oversight which it sensibly and reasonably sought to obviate by offering to conduct a further hearing to take evidence or alternatively to accept a written statement from the sponsor. The Applicant took the opportunity to provide not only the statutory declaration, but also the medical report, both of which documents the Tribunal considered at [6] and [8] respectively of its Decision Record. If the Tribunal had rung the sponsor at the Tribunal hearing on 11 January 2017, in all likelihood it would not have had the benefit of either the statutory declaration or the medical report. In my view, the Tribunal did not act in a procedurally unfair way in the present regard and the Applicant has suffered no practical injustice, as he was not put in any worse position by the oversight.
In my view, Ground 1 fails to establish jurisdictional error.
Ground 2
The weight to be given to the medical report was a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13], where Flick J said:
[13]The making of findings of fact and the weight to be given to the evidence in the course of making those findings are matters entrusted to the Tribunal alone.
Insofar as the last sentence of this Ground contends that the Tribunal should have let the Applicant know “that it wanted more information from [the sponsor’s] doctor” or from himself, the Tribunal was under no such obligation. It was for the Applicant to advance whatever evidence, claims or arguments he wished to advance and it was for the Tribunal then to decide whether his claims had been made out: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. The position was, as agreed by the parties with the evident approval of Banks-Smith J in CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 at [50], as follows:
[50]Both parties acknowledged that:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [11], [30]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it was for the appellant to have advanced whatever evidence or argument he wished to advance in support of his claim that he was entitled to the visa. The Tribunal must then determine whether that claim is made out: Abebe v Commonwealth at [187];
(c)the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and
(d)there was no duty on the Tribunal to make its own enquiries: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1].
To similar effect Graham J had said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 506 [37]:
[37]The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
In other words, the Tribunal was not under an obligation to let the Applicant or the sponsor know its thought processes or to give to them a running commentary or advice.
In my view, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and his Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 30 August 2019
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