Tejada v Minister for Immigration

[2017] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEJADA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 312

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) visa –review of decision of Administrative Appeals Tribunal – publication of personal information (“Data Breach”) – whether the Tribunal erred in failing to consider whether the applicant’s partner could safely live in Peru – whether the Tribunal’s decision was unreasonable based upon an inference concerning effective psychological treatment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations1994 (Cth), sub-cl.820.211(2)(d)(ii) of sch.2; criteria 3001, 3003, 3004 of sch.3

Cases cited:

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77

Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709
Tuitaalili v Minister for Immigration & Citizenship [2012] FCAFC 24; (2012) 126 ALD 48
Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15

Applicant: LUIS ADEMIR PEREZ TEJADA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1743 of 2016

Judgment of: Judge Smith

Hearing date: 21 February 2017

Date of Last Submission: 21 February 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Ms E. Grotte

Solicitors for the Applicant: Michaela Byers, Solicitor

Solicitors for the Respondents: Ms S. Burnett, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1743 of 2016

LUIS ADEMIR PEREZ TEJADA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Peru who arrived in Australia on a student visa on 19 January 2010. In September 2010, the applicant met and formed a relationship with Ms Wang, a Chinese citizen in Australia on a student visa. By that time the applicant’s student visa had expired.

2. In January 2013, the applicant applied for a protection visa claiming that he feared harm because he had stood up to a criminal gang that was attempting to extort money from his family’s business. On 19 December 2013, the applicant was detained and taken into immigration detention. The applicant’s application for a protection visa in January 2014 was refused and he sought judicial review of the decision of the Refugee Review Tribunal[1] to affirm the refusal.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. Ms Wang obtained permanent residency in 2014 and eventually became a citizen of Australia. In November 2014, she married the applicant. On 27 January 2015, the applicant applied for a Partner (Temporary) (Class UK) visa on the basis of his relationship with Ms Wang. The applicant then discontinued his proceedings for judicial review of the Tribunal’s decision.

4. It was a criterion for the grant of the partner visa that the applicant satisfy sch.3 criteria 3001, 3003 and 3004 of the Migration Regulations1994 (Cth) unless the Minister was satisfied that there were compelling reasons for not applying those criteria: sub-cl.820.211(2)(d)(ii) of sch.2 to the Regulations.

5. Clause 3001 required that the visa application be validly made within 28 days after the “relevant day”. The “relevant day” was the last day on which the applicant held a substantive visa, namely, 20 September 2010. The critical issue for the applicant then, was whether there were compelling reasons for not applying criteria 3001 in sch.3.

6. The term “compelling reasons” is not defined in the Regulations. In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77, a Full Court of the Federal Court of Australia found at [24] that:

   There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.

7. In MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510, Bromberg J said the following in relation to the meaning of “compelling reasons” at [10]–[13]:

   [10]That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).

   [11]As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:

   Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.

   [12]In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.

   [13]The decision-maker needs to be “satisfied” that compelling reasons exist.

8. In a statutory declaration submitted to the Department of Immigration (“Department”), the applicant relied upon the following circumstances to say that there were compelling reasons for the waiver of the sch.3 requirements. First, Peru was a very dangerous country and not safe for foreigners to walk around. Ms Wang would be recognised as a foreigner and could be kidnapped and held for ransom. Secondly, the Police in Peru were very corrupt and they could not protect people from gangs. Gangs extorted money from the business run by the applicant’s mother and the applicant was attacked and had his arm broken when he came to defend her. The gang would kill him if he returned.

9. The applicant also submitted a report from a psychologist about the probable effect that the applicant’s departure from Australia would have upon Ms Wang. The psychologist concluded that Ms Wang was at a higher risk of future mental disturbance if confronted by enforced separation from her husband.

10. On 23 October 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The delegate gave little weight to the psychologist’s report and was not otherwise satisfied that there were any compelling reasons to waive the sch.3 criteria.

11. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

Tribunal’s decision 

1. The applicant submitted to the Tribunal statements by himself and Ms Wang in which they addressed the requirement that there be compelling reasons for waiving the criteria. The applicant also sent the Tribunal a letter addressed to him from the Secretary of the Department of Immigration and Border Protection in which it was explained that in February 2014 a routine report released on the Department’s website unintentionally enabled access to some of his personal information (“Data Breach”). The applicant also sent the Tribunal a copy of his letter to the Department in respect of the Data Breach in which he said, relevantly:

   5.There is no way of knowing from whom I could face a real risk of harm as it may go well beyond the authorities in my home country, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates. In addition th [sic] Human Resources Sections of companies and public service departments would als [sic] have access to the information and would undermine my ability to find employmen [sic]. Foreign governments may use this information as a reason not to grant visas for me travel;

2. On 13 April 2016, the applicant and Ms Wang gave evidence at a hearing conducted by the Tribunal. It will be necessary, in due course, to return to examine some of the evidence and arguments presented at that hearing.

3. On 24 June 2016, the Tribunal made a decision to affirm the decision of the delegate.

4. The Tribunal found that the applicant was evasive in his evidence. The Tribunal was not satisfied that the applicant had, or continued to have, a genuine fear of harm if he were to return to Peru; and that his claimed harm did not provide a reasonable explanation for overstaying his visa, or give rise to compelling reasons to waive the sch.3 criteria.

5. The Tribunal found that the applicant had manipulated his circumstances to obtain a positive migration outcome with the support of Ms Wang. In those circumstances, the fact that the applicant had a relatively lengthy relationship with Ms Wang did not give rise to a compelling reason to waive the criteria.

6. The Tribunal accepted that the applicant and Ms Wang would miss each other if they were separated. However, that that was a usual outcome for genuine couples subject to the sch.3 criteria and was not, itself, a compelling reason to waive them. The Tribunal then analysed Ms Wang’s claim that the consequences for her would be greater than for other couples. In this respect it considered the psychologist’s report together with the fact that Ms Wang had seen a psychologist only one occasion in January 2016. The Tribunal inferred that Ms Wang would learn positive coping mechanisms and avoid behaviour that exacerbates her anxiety by attending appointments in the future with psychologists. The Tribunal accepted that any separation from the applicant would be a challenge to her, however treatment with a mental health professional would help to manage her condition and to reduce emotional dependence upon the applicant. For those reasons it was not satisfied that Ms Wang would have no option but to go to Peru with the applicant, but that it was a matter for her to take into account in deciding whether to do so.

7. The Tribunal accepted that travel in Peru holds some dangers, however noted that tourists from Australia regularly travel there safely by taking recommended and reasonable precautions. In those circumstances, the Tribunal found that Ms Wang could stay in Australia while the applicant made an application for a visa offshore with some professional treatment for her mental health issues.  The Tribunal also found that Ms Wang would have to make a decision whether to accompany the applicant, taking into account the effect on her career due to an absence from work, the effect on her mental health of a lengthy separation and the help she could find from mental health professionals to cope with a lengthy separation.

8. The Tribunal then addressed the financial impact of the potential separation. The Tribunal rejected the applicant’s claim that he would not be able to support Ms Wang if she went to Peru with him. The Tribunal found that whether the applicant could support Ms Wang was a matter for her to take into account when deciding whether she would accompany him if he returned to Peru to apply for a visa and that their individual circumstances did not give rise to compelling reasons to waive the sch.3 criteria. The Tribunal also found that Ms Wang could support herself until the applicant returned.

9. Similarly, the Tribunal considered that Ms Wang’s health concerns would be a matter for her to consider when deciding whether to accompany the applicant were he to return to Peru.

10. The Tribunal concluded that the circumstances considered by it did not give rise to compelling reasons to waive the criteria and for that reason the applicant did not meet the criteria in cl.820.211(2).

Consideration

1. The applicant seeks judicial review of the Tribunal’s decision. He raises three issues: first, the Tribunal failed to consider the possible impact of the Data Breach on the applicant; secondly, the Tribunal’s decision was unreasonable because it was based partly upon an inference concerning the effectiveness of psychological treatment of Ms Wang which had no basis in the evidence; and thirdly, the Tribunal failed to consider whether Ms Wang could safely live in Peru for an extended period of time with the applicant.

First issue: the Data Breach

1. The only mention by the Tribunal of any issue arising from the Data Breach was at [12] where it said:

   …

   He said that he would have to return to Peru, rather than any other country, to apply for a partner visa because the Department had published that he had claimed protection. He said he was advised that no other countries would grant him a visa in that case.

2. It is true that the Tribunal did not mention, or otherwise deal with, other possibilities arising from the Data Breach such as those mentioned at [5] of the applicant’s letter to the Department that was before the Tribunal: see [12] above. It is also well established that the Tribunal must, in the exercise of its duty to review the delegate’s decision, consider a claim that is expressly made by an applicant or arises on the material. The question, ultimately, is whether the case put by the applicant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it: SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 at [18] approved by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263.

3. In Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 Merkel J said, at [114] that:

   …

   In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. Unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant.

   …

   (Citation omitted)

4. However, that is not to say that the Tribunal cannot be guided by the way in which the applicant presents the issues arising from the material: Tuitaalili v Minister for Immigration & Citizenship [2012] FCAFC 24; (2012) 126 ALD 48 at [35]. Although the decision of the High Court in Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15, particularly at [61]–[64], appears to have thrown some doubt on that proposition, I am bound to apply it.

5. That consideration is important given the following exchange at the hearing conducted by the Tribunal[2]:

   [2] Transcript p.17.3.

   Applicant:If I hadn’t had any problems in Peru I would have gone back with my wife already two years ago. I would have come back and everything would have been OK. I would have gone months because I have no opportunity I’m scared of going back there. I don’t know if this one can help me so I have Privacy Commission this happen to me in the detention centre.

   Tribunal:I’m not sure how that is really relevant. I’ve got that copy of that.

   Applicant:Yes.

   Tribunal:You’ve me a copy of that already.

   Applicant:Yes.

   Tribunal:I’m not sure how that helps you. Do you want to tell me is there something (inaudible) in a way that helps you.

   Applicant:Well this Privacy Commission document when I was in Villawood is news that I was a refugee and they put that information in the internet therefore everybody knows that I have been a refugee in Australia that affects my life a lot because I cannot travel and because he is saying every other country in the world is(inaudible).

   Tribunal: You are saying other countries would refuse you a visa because you claimed for protection in Australia?

   Applicant:Yes.

   Tribunal: I suppose that means you shouldn’t go offshore to somewhere other than Peru you’re saying.

   Applicant: I don’t really know. But that’s what the lawyer told us. Human rights lawyer told us.

   Tribunal:It makes sense to me.

6. Counsel for the applicant argued that this passage from the Tribunal hearing did not change the Tribunal’s obligation to consider all of the material, including the aspects in the Data Breach letter not mentioned at the hearing. Counsel submitted that it ought to be recalled that the applicant was giving evidence through an interpreter and that, while he had a migration agent, that agent did not have the right to make any submissions without being asked by the Tribunal.

7. I do not accept that argument. There is no suggestion that by giving evidence through an interpreter, the applicant was hindered from raising any matter concerning the Data Breach with the Tribunal, other than what he actually did raise. Further, if the applicant did want to raise some other issue from the Data Breach, it was always open to him to make further submissions either before or after the hearing: the fact that he did not do so implies that he did not wish to do so.

8. In my view, this passage from the hearing of the Tribunal reveals that the Tribunal was not sure of the relevance of the documents submitted by the applicant concerning the Data Breach. In light of that, the Tribunal asked the applicant to explain what relevance it had to the issues for determination. The applicant explained that the importance of the document was that he could not travel to countries other than Peru. In my view, given that this was the impact the applicant said the Data Breach might have on him, that was what the Tribunal had to consider and it did so. Further, given the vagueness of the other matters referred to in [5] of the applicant’s Data Breach letter, and the fact that the applicant did not mention those other matters when directly asked at the hearing, the Tribunal was not required to consider them in determining whether there were compelling reasons for waiving the sch.3 criteria.

9. For those reasons the first ground is rejected.

Second issue: Ms Wang’s psychological condition

1. One of the matters relied upon by the applicant in support of the contention that there were compelling reasons for waiving the sch.3 criteria was Ms Wang’s mental health. The psychologist’s report submitted by the applicant included a diagnosis of Persistent Depressive Disorder with Anxious Distress which was related to the possible enforced separation from the applicant.

2. The author of the report stated that there were a number of recognised strategies that “facilitate an empowered approach to coping positively and effectively”. She stated that Ms Wang frequently used strategies that intensify mental fragility rather than assisting with the effective managing of it and employed a number of the least helpful of the coping strategies in her endeavours to manage everyday stresses, worries and concerns. On the other hand, she noted, Ms Wang did employ a number of helpful approaches to assist with more effective coping.

3. At the Tribunal hearing, the Tribunal asked whether Ms Wang was seeing a psychologist or getting any treatment for her mental health at that stage. Ms Wang gave evidence that she had seen a psychologist once and that she would see her again when the psychologist was available.[3]

   [3] Transcript p.19.

1. In its reasons the Tribunal stated, at [20], that the author of the psychologist report:

   … reported that Ms Wang has few positive mechanisms for coping with stress and uses a number of negative coping mechanisms. The Tribunal infers Ms Wang would learn positive coping mechanisms and avoid behaviour that exacerbates her anxiety by attending appointments in the future with psychologists.

   …

2. The applicant argues that the inference drawn by the Tribunal was unreasonable for two reasons: first, there is no basis for it in the material before the Tribunal, and secondly, because the Tribunal did not consider the type of treatment that might be undertaken, the cost of any treatment, the possibility that it might not work or how long it might take to work.

3. Neither of these arguments can succeed. First, the inference drawn by the Tribunal was open to it. The Tribunal drew the inference from the fact that the applicant had not yet engaged many coping mechanisms and was in fact using a number of negative coping mechanisms. These matters were identified by the author of the psychologist report who also expressed the opinion that there were other successful coping mechanisms that might be able to be used. The fact that this opinion was expressed by the psychologist is important because the evidence suggested that Ms Wang intended to continue to see a psychologist. It may readily be inferred that such a psychologist would also be aware of, and because of her experience and training, would be able to assist Ms Wang to implement. It was not necessary for the Tribunal to have any expertise in psychology itself. It was able to draw on the expertise expressed in the report provided by the applicant.

4. Secondly, it may be that the questions of cost, possibility of failure, type of treatment and length of treatment may have led another decision-maker not to draw the conclusion arrived at by the Tribunal. However, that does not mean that the Tribunal’s decision was unreasonable. First, those matters were never raised by the applicant or Ms Wang, and secondly, simply because probative evidence can give rise to different processes of reasoning, or if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by the Court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131].

5. The second ground is rejected.

Third issue: the safety of Ms Wang on an extended stay in Peru

1. The applicant contended before the Tribunal that, because of her psychological condition, Ms Wang would not be able to live in Australia by herself and would have to go to Peru with the applicant. However, the applicant said that Peru was a country with a high crime rate and that many tourists and foreigners were robbed, kidnapped or even murdered every year there. Ms Wang also said that if she had to go to Peru she would lose the chance to be a qualified accountant.

2. At the hearing the Tribunal asked whether Ms Wang could afford to go and visit the applicant in Peru. Ms Wang replied that the applicant did not want her to go to Peru because it is very dangerous for foreigners and something would happen to her there.

3. The Tribunal accepted that travel in Peru holds some dangers but that given that tourists from Australia regularly travel there safely, the fact that the applicant preferred that Ms Wang did not visit him in Peru, did not mean that she could not do so: [22].

4. The applicant argues that the use of the word “visit” in [22] of the Tribunal’s reasons reveals that it only considered what might occur to Ms Wang if she were in Peru for a short period, namely, a brief visit. The applicant also argues that the Tribunal did not consider what might occur if Ms Wang stayed there during the whole of the applicant’s absence from Australia. That argument, however, relies on an overly narrow view of the Tribunal’s reasons.

5. The focus by the Tribunal in [22] on the ability of tourists from Australia to travel safely to Peru arose from the applicant’s own claims which focused on tourists and foreign visitors. Further, there was no distinction drawn by the applicant, or from any of the material before the Tribunal, between the harm that might face a person in Peru for a short period and the harm that might face the same person if they stayed for a longer period.

6. Leaving aside [22] of the Tribunal’s reasons, the Tribunal clearly had regard to the possibility that Ms Wang might travel to Peru with the applicant and stay with him in Peru. The Tribunal referred on three different occasions to the possibility that Ms Wang might “accompany” the applicant if he returned to Peru to apply for a visa: [24], [26], and [27]. In light of those matters, I am not satisfied that the Tribunal overlooked that possibility and failed to consider the safety argument raised by the applicant. For that reason, the third ground must fail.

7. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 March 2017