Trad v Minister for Immigration

[2018] FCCA 2630

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAD v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2630

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of Delegate not to grant a temporary Partner (Subclass 820) visa to the applicant – Partner visa application out of time as 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 – jurisdictional error asserted by applicant not established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 499

Migration Regulations 1994 (Cth)

Cases cited:

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZYPZ v Minister for Immigration (2012) FCA 478
SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214
Waensila v Minister for Immigration (2016) 241 FCR 121

Applicant: ABDUL WAHAB TRAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1588 of 2016

Judgment of: Judge Dowdy

Hearing date: 12 October 2017

Delivered at: Sydney

Delivered on: 18 September 2018

REPRESENTATION

The Applicant appeared
in person with the assistance of his sponsor as McKenzie Friend.

Counsel for the First Respondent: Ms S. Sangha

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 23 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1588 of 2016

ABDUL WAHAB TRAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Lebanon aged 40 years, having been born on 10 May 1978.

2. By Application filed in this Court on 23 June 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 June 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 28 January 2016 refusing to grant to the Applicant 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

1. The Applicant arrived in Australia on 15 September 2004 on a Sponsored Family Visitor (Subclass 679) visa (Subclass 679 visa). Between 2006 and 2009 he was granted a further three Subclass 679 visas which he used to travel to Australia.

2. Between 10 January 2012 and 17 October 2014 the Applicant made further visa applications, but ultimately as and from 17 October 2014 he remained in Australia as an unlawful non-citizen. The parties at the hearing in this Court agreed that the Partner visa application should be taken as lodged on 15 June 2015, although strictly it could also be taken to have been lodged on 2 July 2015, as found by both the Delegate and the Tribunal. Nothing in fact turns on the discrepancy between these two dates. However, critically, the last substantive visa held by the Applicant ceased on 18 April 2014.

3. The Partner visa application was based on the Applicant being in a spousal relationship with an Australian citizen, Ms Nicole Tadrosse (the sponsor), whom he married on 27 April 2015 and was the sponsor for his Partner visa application.

4. 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 Relevant to Partner Visa Applications

1. As at both the date of application and date of decision, 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)

2. As noted in [4] above, the Applicant’s last substantive visa ceased on 18 April 2014. This meant that at time of application and decision for the temporary Partner visa he had to satisfy Criterion 3001(1), which relevantly required him to have made his application within 28 days of 18 April 2014, being namely by 16 May 2014. However, he had made his Partner visa application on 15 June 2015, almost 13 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).

3. 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

1. In his Decision Record the Delegate noted that the Applicant had been invited by letter dated 1 December 2015 to submit information regarding any compelling factors for consideration and that his migration agent had advanced further information by way of documentation on 22 January 2016.

2. In the result, having considered the circumstances of the Applicant and the sponsor and their claims the Delegate concluded that there were no compelling reasons to waive Criterion 3001, that cl.820.211(2)(d)(ii) was not met and that the Applicant also did not meet any of the alternative provisions within cl.820.211.

3. Accordingly, the Delegate refused the application for the grant of a temporary Partner visa, which meant that pursuant to cl.801.221(1) the Applicant also did not meet the criteria for the grant of a permanent Partner visa.

Tribunal Decision

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 15 February 2016 and appeared before the Tribunal on 2 June 2016 to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages. The sponsor also attended the Tribunal hearing, at which time she was 31 years of age, having been born on 17 May 1985.

2. From [7] – [10] of its Decision Record the Tribunal recorded the claims of the Applicant. The Applicant stated that he had a brother and sister in Australia and that his remaining family were in Tripoli in Lebanon, that he had worked as a carpenter before coming to Australia and that he had nothing to go back to should he return to Lebanon. The Applicant noted that in Tripoli there had been security problems. When questioned by the Tribunal concerning his unlawful stay in Australia he said that he had tried “very hard” to fix his visa status but faced financial hardship in retaining a lawyer to assist with his immigration problems.

3. At [11] – [12] of its Decision Record the Tribunal recorded oral evidence from the sponsor. The sponsor told the Tribunal that she had medical health problems associated with fertility and was taking medication in an attempt to regulate her periods and assist with ovulation. She also stated that she suffered from intermittent arthritis in her hands. The sponsor claimed that she converted to Islam at 19 years of age and no longer received support from her family, as they are of Catholic Lebanese background. Further, the sponsor claimed that her parents do not approve of her marriage to the Applicant and she consults with a psychologist relating to issues concerning her parents and the Applicant’s visa status. The sponsor acknowledged to the Tribunal that she had been aware that the Applicant was remaining in Australia unlawfully but maintained that if she were to return to Lebanon it would delay her plans to get pregnant.  

4. The Tribunal noted at [13] that on the day after the Tribunal hearing it had received material including a psychologist’s report from Dr Pinar Karabulut, phone records and an obstetrician’s report from Dr Wafa Samen.

5. Then at [14] – [18] the Tribunal found that as the Applicant had lodged his Partner visa application more than a year after the date on which he had last held a substantive visa he did not satisfy Criterion 3001. The Tribunal found that it was therefore required to consider whether there were compelling reasons for not applying Criterion 3001. 

6. At [19] the Tribunal considered the meaning of “compelling reasons” and correctly referred as giving guidance to the decision of the Full Court of the Federal Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 (Babicci) at 289 [24] and to the decision of Bromberg J in MZYPZ v Minister for Immigration (2012) FCA 478.

7. In Babicci the Full Court of the Federal Court comprised of Tamberlin, Conti and Jacobson JJ at [21] – [24] had stated as follows:

   [21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.

   [22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.

   [23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.

   [24]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.

8. This statement of principle in Babicci is consistent with the meaning given to the word “compelling” by French CJ, Bell, Keane and Gordon JJ in M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 (M64/2015) at 187 – 188 [31] and that of Gageler J at 196 – 197 [64].

9. At [31] of M64/2015 the plurality said:

   [31]      In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.

   (citations omitted)

10. At [64] of M64/2015 Gageler J said:

    [64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.

    (citations omitted)

11. From [20] – [22] the Tribunal considered whether or not it was satisfied that the claims and evidence put forward by the Applicant and his sponsor constituted compelling reasons for not applying the criteria comprised in Criterion 3001 and found at [23] that, having considered those circumstances both individually and cumulatively, it was not satisfied that there were compelling reasons for not applying Criterion 3001 and it affirmed the decision of the Delegate not to grant the temporary Partner visa to the Applicant.

Grounds of Attack on the Tribunal Decision in this Court

1. The Grounds relied upon by the Applicant are as follows:

   1. The Tribunal Member misapplied the law as he misinterpreted the compelling reasons while he admitted that I converted to Islam over ten years ago, and my history of depression, and treatment for polycystic syndrome and other factors the Member erred in his conclusion that there are compelling circumstances and for not applying the Schedule 3 criteria.

   2. The decision of the Tribunal is not logical and was made contrary to the evidence on file.

Consideration

Ground 1

1. In my view this Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.

2. First, I do not accept that the Tribunal misapplied or misinterpreted the expression “compelling circumstances” or that it took a legally erroneous view as to what constituted “compelling circumstances”.

3. The Tribunal correctly referred to Babicci as a relevant authority at [19] of its Decision Record and further referred to the decision of the Full Court of the Federal Court in Waensila v Minister for Immigration (2016) 241 FCR 121 and followed that case in considering whether there were “compelling reasons” at the time of decision and not just at the time of application.

4. Second, in his Written Submissions dated 7 October 2017 the Applicant complained that the Tribunal failed to consider claims or factors mentioned expressly in this Ground as well as other claims.

5. However, the simple answer to these complaints is that the Tribunal at [20] – [22] of its Decision Record did consider all the claims which the Applicant had asserted as constituting “compelling reasons”. Paragraph [20] dealt with the claims of the Applicant, and [21] – [22] dealt with the claims in relation to the sponsor.

6. I note in particular that the Applicant complains that the Tribunal failed to consider what was said to be a claim “to fear harm in Lebanon because of the general security situation and the presence of sectarian violence”. Associated with this was a complaint that the Tribunal had “failed to consider the relevant reports”, which I take to be a reference to independent country information in relation to the position in Lebanon.

7. However, the Tribunal was correct in [20] when it referred to the Applicant at the Tribunal hearing as only giving “vague evidence about the security situation in northern Lebanon”. This was a correct characterisation because at the Tribunal hearing, when the Applicant was being questioned by the Tribunal member about why he had remained unlawfully in Australia, the only evidence given by him in relation to Lebanon to which he has referred the Court was comprised in the following exchange:

   Member: But you overstayed this time because you met a girl.

   Applicant:I didn't want to like you know stay unlawfully but the circumstances

   Member:What circumstances? What? I don't understand. You really need to explain this because you're not in a, one thing about Australia is there's a dim view of who people to take the law into their own hands when it comes to their life here you know. I mean there are rules here. Now you're asking me to exercise the discretion to waive the requirement for you about a visa issue and I need to understand your full circumstances. And what I asked you about why you overstayed and you said you wanted to but there were circumstances. So I really want to understand what those circumstances were.

   Applicant:First of all there financial like you know issues and the situation in Lebanon. And to like you know to get the help of a lawyer you need money because it's not cheap like you know to have like you know a lawyer. Because I was really confused I didn't know what to do.

   Member:Okay. I get most of those points. There's one thing you said I just want you to clarify the situation in Lebanon. What did you mean by that?

   Applicant:Where like you know we live in Tripoli in AI-Zahria there was lots of problems like you know between Bab Al Tabbene and Jabal Mohsen.

   Member:When, last year?

   Applicant:The year before last. And another problem I lost everything in Lebanon. I don't have anything else to start with. What else can we do?

   Member:Okay.

8. Otherwise, the Applicant never made any submissions or claims in relation to the position in Lebanon and had not submitted any independent country information to the Tribunal. I do not consider that the vague and general reference by the Applicant to “the situation in Lebanon” at the Tribunal hearing as reproduced in the preceding paragraph constituted “a substantial, clearly articulated claim relying upon established facts” (see SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J) to fear harm in Lebanon because of the general security situation and the presence of sectarian violence.

9. Nevertheless, in any event the Tribunal at [20] dealt with the issue of Lebanon by stating as follows:

   [20] …… Mr Trad remained in Australia unlawfully following the refusal of his Subclass 457 visa. Mr Trad gave vague evidence about the security situation in northern Lebanon. While the situation in the general Middle East is volatile there is no information before the tribunal to suggest that Mr Trad is at risk of any harm if he were to return to Lebanon. The tribunal does not think there is anything concerning the situation in Lebanon that gives rise to compelling reasons to not apply the Schedule 3 criteria.

10. I note that Ministerial Direction No.56 made under s.499 of the Act, which requires a decision-maker to consider country information under certain circumstances, only applies to applications for the grant of a Protection visa.

11. Paragraphs [21] and [22] of the Tribunal’s Decision Record then deal with the claims of the sponsor and in particular her claimed infertility problem. The Tribunal did not accept that there were age-related maternity issues affecting the sponsor which would constitute a compelling reason not to apply Criterion 3001. The Tribunal’s conclusion in this regard has been retrospectively confirmed, for what it is worth, by the fact that I was informed by the Applicant at the hearing that the sponsor had given birth to their son on 4 June 2017.

1. This Ground fails to establish jurisdictional error.

Ground 2

1. This Ground also fails to establish jurisdictional error.

2. In my view legal unreasonableness or illogicality cannot be inferred from the decision of the Tribunal in the sense that it was arbitrary, capricious, without common sense, plainly unjust or without an evident, transparent or intelligible justification. On the evidence and material before the Tribunal it was legally open to it to make the decision to which it came. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]:

   [131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and 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 a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Conclusion

1. In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  18 September 2018