Younis v Minister for Immigration
[2020] FCCA 2395
•2 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YOUNIS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2395 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa - whether the Tribunal erred in its consideration of compelling reasons for waiving criteria in Schedule 3 to the Migration Regulations – whether the Tribunal gave genuine consideration to evidence from a psychiatrist and local drug and rehabilitation services – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.360 Migration Regulations 1994 (Cth), cl.820.21 |
| Cases cited: Chan v Minister for Immigration & Border Protection [2018] FCA 1323 Farhat v Minister for Immigration & Border Protection [2018] FCA 93 Karan v Minister for Immigration and Border Protection [2017] FCA 972 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 Omar v Minister for Home Affairs [2019] FCA 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; |
| Applicant: | MAHER KAMEL ABDALLAH YOUNIS |
| First Respondent: | MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1200 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 19 November 2019 |
| Date of Last Submission: | 19 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The First Respondent’s name be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1200 of 2018
| MAHER KAMEL ABDALLAH YOUNIS |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 9 April 2018. The Tribunal affirmed a decision of a Delegate of the First Respondent, the then Minister for Home Affairs (subsequently named the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”), made 18 January 2017 to refuse to grant the Applicant a Partner (Temporary) (Class UK) Visa.
Background
The Applicant, Mr Maher Kamel Abdallah Younis, is a citizen of Jordan who was 33 years old as at the date of the hearing before me. He arrived in Australia on 4 May 2014 on a visitor visa, which ceased on 4 August 2014. That visitor visa was the last substantive visa Mr Younis held.
Mr Younis applied for the Visa on 31 October 2016. In support of the application for Visa, Mr Younis’ wife and his sponsor, Ms Kelly, provided a statutory declaration dated 12 October 2016, which outlined the basis for the Visa application, and their relationship history. The two met each other through an online dating website on 16 December 2015, had their first face to face meeting on 19 December 2015, and were married on 26 February 2016.
The criteria for the Visa is set out in subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth). In order to be granted a subclass 820 visa, Mr Younis was required to demonstrate that he met, as at the date of the application for the Visa, sub‑cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, and thus Mr Younis needed to satisfy criteria 3001, 3003 and 3004 (where applicable) of Schedule 3 to the Regulations. Alternatively, he was required to satisfy the Minister (for present purposes, the Tribunal, exercising the Minister’s discretion) that there are compelling reasons not to apply those criteria.
In order to meet Schedule 3 criterion 3001, Mr Younis was required to apply for his Visa within 28 days of the date of expiration of his last substantive visa. As the day he last held a substantive visa was 4 August 2014, it was not in issue before the Delegate, or before the Tribunal, that he did not satisfy criterion 3001. As a result, the Tribunal had to consider whether or not it was satisfied that there are “compelling reasons” for not applying the requirement that Mr Younis apply for the Visa within 28 days of his last substantive visa.
The effect of the Tribunal being so satisfied and waiving compliance with the Schedule 3 criteria would have been that Mr Younis would not have to leave Australia in order to reapply for a partner visa. The Tribunal was not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. It concluded that Mr Younis did not meet sub‑cl.820.211(2)(d)(ii), and affirmed the decision of the Delegate refusing the grant of Visa.
Mr Younis was represented at the hearing by Mr D Godwin of counsel, and the Minister was represented by Ms N Laing of counsel.
Relevant legislative provisions
Part 8.20 of the Regulations contains provisions concerning the requirements for partner visas. The primary criteria for the particular partner visa sought by Mr Younis are set out in cl.820.2. Applicable to the application before this Court are the criteria set out in sub-cl.820.211, which provides, relevantly:
820.21—Criteria to be satisfied at time of application
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
…; 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.
The Minister has a discretionary power to be satisfied that the specified criteria does not apply (see sub-paragraph(d)(ii)). It is a power, where the Minister is satisfied that there are compelling reasons for doing so, to effect the result that the visa applicant is not required to meet those criteria which would otherwise be required to be satisfied at the time of the application: see Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121, per Robertson J at [19].
The circumstances that may constitute “compelling reasons” for waiver of the Schedule 3 criteria are not temporally limited: the Minister at the time of making his or her decision is not prevented from taking into account in assessing “compelling reasons” the circumstances which prevail at the time of their decision: Waensila, per Dowsett J at [2], Robertson J at [18], and Griffiths J at [54].
The Delegate’s Decision
As I have said, the Delegate refused the Visa on 18 January 2017. The Delegate refused to grant the Visa on the basis that Mr Younis did not satisfy cl.820.211(2) of the Regulations. Mr Younis did not hold a substantive visa at the time he lodged the Visa application.
The Delegate considered Mr Younis’ request to waive the Schedule 3 criteria, however, considering Mr Younis’ circumstances, the Delegate concluded that there were not compelling reasons to waive the Schedule 3 criteria.
The Tribunal’s Decision
Mr Younis appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Younis’ sponsor, his wife Ms Kelly. Mr Younis had the benefit of an interpreter in the Arabic and English languages, and was represented by his registered migration agent, who also attended the hearing.
From [12] through [17] of its Decision, the Tribunal found that Mr Younis did not make the Visa application within 28 days from the date of expiry of his last valid visa (4 August 2014), thus the Tribunal must be satisfied that there are compelling reasons for not applying the Schedule 3 criterion: per cl.820.211(d)(ii), and at [17] the Tribunal noted that “compelling reasons” is not defined for this purpose. It observed that the reasons must be compelling enough to convince the decision-maker to make a positive finding in favour of waiving the criteria.
At [18] the Tribunal recorded that Mr Younis was asked to provide what he considered the compelling reasons were for waiving the criteria. Mr Younis stated that he loved Ms Kelly very much, and had provided support ‘in every sense’ like a normal husband. He had provided financial, physical, and emotional support to her throughout her recovery from her addiction issues. The Tribunal noted the submissions that supported Mr Younis’ claims to have greatly helped Ms Kelly’s recovery.
At [19] the Tribunal stated it requested information about the support Mr Younis was providing to Ms Kelly. Mr Younis claimed he had been working since January 2018, but he provided no wage slips or job statements, although the Tribunal noted photographs of his Commonwealth Bank account showing transfers to Ms Kelly’s account. The Tribunal formed the view that the financial assistance provided by Mr Younis was minimal, and that Ms Kelly would be able to access government services to assist her whilst Mr Younis applied for a partner visa offshore.
At [20] the Tribunal considered the evidence Mr Younis provided in relation to his support of the family. The Tribunal considered Mr Younis’ written submissions to the Tribunal of 10 March 2018 that Ms Kelly’s children see him as a father figure, who takes them to the park, shops, school, and supports their various co-curricular activities. The Tribunal observed these submissions also claim that Mr Younis has helped Ms Kelly reorganise her life. The Tribunal was prepared to accept Mr Younis’ role in assisting Ms Kelly look after her children and in providing general support around the house. However, the Tribunal did not consider “these purported efforts of the applicant to be compelling and a reason to exercise the waiver.” The Tribunal was of the view that Mr Younis can continue to provide emotional support to the sponsor overseas whilst applying for another partner visa. The Tribunal also surmised that as Ms Kelly was not currently employed, she would have some capacity to temporarily manage the household whilst Mr Younis’ visa application is processed offshore.
At [21] the Tribunal accepted that Ms Kelly’s previous relationship history was a troubled one, and that she had suffered from serious verbal and physical violence. The Tribunal noted that Ms Kelly stated in her oral evidence that since the start of her relationship with Mr Younis, her former de facto no longer stalks or harasses her. However, the Tribunal, was of the opinion “that there are a wide range of avenues in terms of both law enforcement and the Courts available to the sponsor should her former de facto recommence any of his previous behaviour while the applicant is offshore.”
At [22], the Tribunal discussed the return of two of Ms Kelly’s children from the Department of Child Services (DOCS). The Tribunal noted that Ms Kelly attributes the return of her children to the positive influence Mr Younis has had on her life. The Tribunal noted, however, that there was nothing from DOCS to suggest that the decision to return the children was based on the relationship between Mr Younis and Ms Kelly. The Tribunal noted that Mr Younis can still provide support from overseas. The Tribunal did not consider these reasons satisfy the waiving of the criteria.
At [23], the Tribunal recognised that separation can take a toll on relationships, both with partners and children. The Tribunal was not convinced that emotional support could not be provided overseas. The Tribunal was not satisfied that Mr Younis’ physical absence for a period of time from Ms Kelly and her children was a sufficient reason for waiving the criteria.
At [24], the Tribunal, at length, discussed Ms Kelly’s former drug use and consequences. It did so as follows (excising folio references):
[24]A significant amount of oral evidence was submitted by the sponsor concerning her mental state, her depression and her previous drug addiction. The sponsor claimed to the Tribunal that she was at significant risk of relapsing back into drug use without the ongoing presence of the applicant in Australia. The Tribunal has assessed whether these matters represent a compelling reason to waive the Schedule 3 criteria. The sponsor said to the Tribunal that she previously had a $1,000 a day drug habit. She had lost her nephew [redacted], who she considered her son, who drowned when he was five years old. The sponsor has stated in written evidence that she had been forced to terminate her unborn child for medical reasons in 2013 and became addicted due to these incidents to Ice (Crystal Methamphetamine). The sponsor said that the applicant had helped her beat her addiction and helps her look after her depression. The sponsor wrote that the applicant ‘became like a life jacket to me.’ She stated in oral evidence that he had helped the applicant get back two of her children. She said she was not sure whether she would remain off drugs and recovering if the applicant was to go offshore. The sponsor said that the applicant supports her with ‘everything’ around the house. The sponsor said to the Tribunal in oral evidence that she wouldn’t be able to cope if the applicant was compelled to depart Australia and lodge a Partner visa application offshore and she would relapse. The sponsor’s sister similarly stated in her 888 Form she believed without the applicant, her sister would relapse. The sponsor said that she would probably lose her children again. The sponsor claimed to the Tribunal that she was diagnosed with separation anxiety after she lost her children. She stated that she cannot go to the shops by herself and suffers from panic attacks. The Tribunal sympathises with the sponsor and has considered these claims carefully. The Tribunal however notes that there is very little medical evidence before the Tribunal that attests to the role the applicant plays in assisting the sponsor deal with these mental health challenges. The applicant is not referred to in the documentation that has been submitted by her counsellor, in her mental health plan, in correspondence from Sydney Local Heath Network Drug and Alcohol Services and in correspondence from her GP. Apart from the updated letter from the sponsor’s psychologist Mr Metry, there is no new correspondence from any medical professionals concerning the sponsor and the support he provides beyond that which was submitted to the delegate in 2016. Given the paucity of independent professional medical opinion concerning the role of the applicant in assisting the sponsor address and manage her mental health and previous drug addiction issues, the Tribunal is not compelled to waive the Schedule 3 requirements for a Partner visa for these reasons. The Tribunal notes that there is a wide range of government and community care available to the sponsor to assist her psychologically and emotionally as well as provide her with support to ensure she continues to avoid any relapse into drug use whilst the applicant is offshore. The Tribunal is of the opinion that there is a wide range of government and community support to assist her with any mental health issues including addiction whilst the applicant is offshore. The Tribunal accepts that the sponsor would prefer the applicant remains in Australia to support her with all these matters. The Tribunal does not however on the evidence before it consider that these are compelling reasons warranting a waiver of the Schedule 3 criteria.
At [25], the Tribunal considered the psychological reports from psychologist Mr Medhat Metry:
[25]The Tribunal notes the psychologists report from Mr Medhat Metry dated 4 December 2016. A new letter from Mr Metry dated 17 March 2018 was also submitted to the Tribunal stating that the sponsor is receiving psychological therapy sessions from Mr Metry and stating that the sponsor still needs ongoing psychological intervention in the form of cognitive behavioural therapy. The sponsor said she recommenced seeing Mr Metry a few months ago. The Tribunal accepts the sponsor’s evidence that she has been seeing drug and family counsellors as well as receiving ongoing psychological support. The Tribunal accepts that the sponsor has suffered from depression for some years and continues to do so. The Tribunal is not however convinced that the applicant is playing a role so compelling that it justifies a waiver of the Schedule 3 criteria. The applicant in oral evidence provided the Tribunal with little insight into what his role was in helping the sponsor address her various mental health issues. The Tribunal considers the oral evidence of the sponsor similarly contained largely generalities about the support he provided the applicant and her family. The Tribunal notes the correspondence of the psychologist Mr Metry who has made a number of assertions concerning the applicant and his role with the sponsor and her children. Mr Metry writes on 17 March 2018 that the applicant ‘plays a fundamental role in both Jessica and her children’s life’ and the applicant ‘designates time for the needs of Jessica and her children by transporting them, attending school meetings and events.’ The Tribunal considers the correspondence concerning the applicant and the role he plays with the sponsor and her children is based upon what the applicant and sponsor have reported to Mr Metry rather than an independent assessment of the applicant’s actions. The Tribunal is not convinced on the evidence before it that the applicant is playing a role with the care and support of the sponsor and her children that it considers is compelling enough to waive the Schedule 3 criteria.
At [26], the Tribunal considered the evidence of Ms Kelly’s therapeutic case worker, Mr Daniel Cavagnino at Uniting Burnside. The Tribunal noted Mr Cavagnino’s opinion that Mr Younis provides Ms Kelly with security. However, given the range of options Ms Kelly has at her disposal, the Tribunal did not see this as a valid reason to waive the criteria.
At [27], the Tribunal accepted it would not be practicable for Ms Kelly to travel to Jordan to be with Mr Younis whilst his further visa application is processed. The Tribunal considered that Mr Younis can still provide emotional and psychological support from overseas whilst the visa application is processed.
At [28], the Tribunal considered Mr Younis’ evidence that Ms Kelly’s family do not support her. Mr Younis submitted that Ms Kelly’s father is old and ill and did not keep in contact with her, her mother has depression, one of her brothers is incarcerated, and her other brother is not in contact with Ms Kelly. The Tribunal found no reason on this basis to waive the criteria. The Tribunal also noted Ms Kelly’s sister stated in her 888 Form dated 20 March 2018 that she was in daily contact with Ms Kelly.
At [29], the Tribunal considered evidence of Mr Younis and Ms Kelly’s relationship. The Tribunal accepted that they were married and that they cohabitated with two of Ms Kelly’s children. Whilst the Tribunal accepted their relationship, it did not view this as a reason to justify waiving the criteria.
At [30], the Tribunal noted Mr Younis’ evidence that he and Ms Kelly were seeking medical assistance in having children of their own, although noted no further evidence of this was provided. The Tribunal did not view their desire to have children together as reason to waive the criteria.
At [31] – [33], the Tribunal discussed Mr Younis’ delinquent visa history.
At [34], the Tribunal stated that it has considered the totality of Mr Younis’ circumstances and concluded that it is not satisfied there is a compelling reason to waive the criteria. The Tribunal found Mr Younis did not meet cl.820.211(2)(d)(ii).
Grounds of Review
In his amended application for judicial review, Mr Younis raised 3 grounds of review. At the hearing before me, Counsel sought leave to rely on a further amended application, which raised 4 grounds of review, in place of the previous grounds. I granted Mr Younis leave to file and rely on this further amended application.
The 4 grounds of review relied on at hearing are as follows (without alteration):
1.The Decision of the Tribunal was legally unreasonable
Particulars
(1)The Tribunal unreasonably disregarded the evidence of the sponsor’s treating psychologist Medhat Metry as not being an independent assessment of the applicant’s actions in assisting the sponsor address her mental health issues.
1(a)The Tribunal failed to complete the review as it failed to give genuine and realistic consideration to the report of Lorraine Buckner-Pitts of Sydney Health Network Drug and Alcohol Health Services which reported a sincere and determined turnaround by the sponsor at the time coinciding with when she formed a relationship with the applicant.
3.The Tribunal failed to comply with s 360 of the Migration Act 1958 in that it did not give the applicant an opportunity to present evidence and arguments on an issue in the review arising since the delegate’s decision and the Tribunal hearing which concerned the role of the applicant in assisting the sponsor address her mental health and previous drug issues.
4.The Tribunal failed to deal with the compelling circumstances that the sponsor suffered a mental health condition of severe separation anxiety which would be exacerbated by the applicant having to leave her.
Applicant’s submissions
Mr Godwin, counsel for Mr Younis, identifies 3 documents he submits the Tribunal mischaracterised and/or discounted:
(a)psychological report of Mr Medhat Metry dated 4 December 2016 (the First Report), provided in response to The Victims Services of New South Wales’ referral of Ms Kelly to him for the purpose of psychological assessment and treatment;
(b)psychological report of Mr Medhat Metry dated 17 March 2018 (the Second Report); and
(c)report dated 11 April 2016 from Lorraine Buckner-Pitts, counsellor, Ingleburn Drug Health, New South Wales Government Sydney Local Health Network, Drug & Alcohol Services (SLHN Document).
Mr Godwin submits that the First Report is significant as it was not specifically obtained for the purposes of the Visa application, but rather written on referral from Victims Services to a psychologist, following at least two consultations.
Mr Godwin drew attention to the following paragraphs of the First Report:
… Mrs Kelly stated that with Mr Maher’s enormous emotional, psychological and financial support, she managed to regain her life and self-confidence to the extent that she took part in a rehabilitation program through which she made a valuable progress, managed to stop being on drugs and is planning to bring her six children back into her custody.
… She added that if he would not be allowed to stay in Australia, she will be enormously and negatively affected and may go into deep depression.
Opinion
… She is suffering from a great deal of psychological problems and she needs her husband to continue supporting her.
I am supporting her request as she has no one to look after her except her husband Maher and she will need her husband to continue to do this role and reduce her stressors.
Mr Godwin rejects the Tribunal’s assertion (at [25]) that the First Report was based on Mr Younis’ and Ms Kelly’s self-reports, and was not an independent assessment. Mr Godwin submits that as the psychologist cannot be in a room with Ms Kelly on a day-to-day basis, he would have to have regard to her history and her statements in order to make a valid assessment. Mr Godwin submits Mr Metry’s assessment is an opinion of a qualified psychologist giving an independent opinion where he clearly had to have regard to Ms Kelly’s history.
In support of the conclusions drawn by the First Report, Mr Godwin also refers to the SLHN Document, which states:
Ms Kelly started alcohol and other drugs (AOD) counselling to stop methamphetamine use in September 2015. She struggled to attend counselling and attend sessions on time. She was angry about her circumstances and blamed others for the removal of her children by Family and Community Services (FACS). Ms Kelly dropped out of treatment and continued her drug use.
Ms Kelly re-presented for Alcohol and Other drugs counselling in early January 2016. She was still angry for the first 2 sessions, but reported no drug use. For the past 4 sessions Ms Kelly has changed her attitude towards herself and others. She has been early for counselling sessions. She has attended counselling with a positive attitude and expresses joy at being abstinent from drugs.
Ms Kelly reported no drug use since December 2015. She was able to engage in Relapse Prevention Counselling and verbalize her responsibility for her situation. She displayed a willingness to engage with Family and Community Services to look out for her children’s welfare.
… She is pleasant to work with unlike before. It is difficult to believe such a turnaround but I believe she is sincere and determined to do what is necessary to be a better mother…
Mr Godwin submits the above demonstrates the positive impact Mr Younis has had on Ms Kelly, and corroborates the evidence of the First Report. Mr Godwin also refers to an affidavit of Ms Kelly in the Children’s Court which was provided in support of her successful application to regain custody of 2 of her children.
Mr Godwin submits that the Tribunal’s discounting of the medical and psychological reports was due to the lack of direct reference to Mr Younis in them. Mr Godwin submits that the Delegate’s decision did not give Mr Younis notice that lack of reference to Mr Younis was the main issue.
Mr Godwin also draws attention to letter dated 6 March 2018 from Mr Cavagnino, Uniting Church therapeutic case worker assigned to Ms Kelly to ensure her children are being properly cared for (referred to by the Tribunal at [26]). Mr Godwin submits this is independent evidence which corroborates the history given to Mr Metry. Whilst the psychologist did not go to Mr Younis’ and Ms Kelly’s home to observe their interaction, the social worker’s report corroborated the history provided by Mr Metry. In these circumstances Mr Metry’s report should not have been discounted by the Tribunal.
Mr Godwin emphasises the Second Report was written nearly 18 months after the First Report. He submits it is a report from Ms Kelly’s treating psychologist, not merely a report written for the purposes of this proceeding, and therefore it was legally unreasonable to discount.
In relation to ground 4, Mr Godwin submits that the Tribunal did not show an adequate understanding of Ms Kelly’s severe separation anxiety. Mr Godwin submits that the Tribunal did not demonstrate any appreciation that it is Mr Younis’ absence that will exacerbate Ms Kelly’s separation anxiety. The answer to her separation anxiety cannot be that community support services can fill the gap, because it is a specific mental health condition brought upon by the physical absence of Mr Younis.
It is clear the Tribunal focused on Mr Younis’ conduct, and what he did to assist Ms Kelly. It did not actively consider the effect of his departure on Ms Kelly, namely that his physical absence would severely exacerbate her pre-existing separation anxiety, and that this condition could not be addressed by accessing available community services. That the Tribunal’s reference to the SLHN Document was limited to noting the absence of reference to Mr Younis demonstrates the Tribunal’s lack of active intellectual engagement with it.
Mr Godwin submits that the Tribunal’s decision is analogous to that in issue in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51. The Tribunal at [24] made a fleeting reference to the SLHN Document, which Mr Godwin submits has a high probative value, however there was no engagement with its substance.
The principles in NAJT were recently re-endorsed by the Full Court in Omar v Minister for Home Affairs [2019] FCAFC 188. In Omar, the Minister had referred to the existence of the material, but had not gone on to make a finding as to whether he accepted or did not accept what was claimed in the material. The duty to give actual active intellectual consideration may extend to having to make findings (Omar at [40]).
Mr Godwin submits that the SLHN Document provides significant corroborative evidence to the claims made by Mr Younis and Ms Kelly, as well as Ms Kelly’s sister, that Mr Younis aided Ms Kelly in her recovery from her addiction issues. This is reflected in the SLHN Document; the specific dates mentioned in the report match the evidence provided by Ms Kelly and her sister.
In support of ground 1(a), Mr Godwin refers to Karan v Minister for Immigration and Border Protection [2017] FCA 872, involving the waiving of a No Further Stay requirement. The applicant in Karan was seeking to remain in Australia to care for his ill wife. Karan demonstrates the difference between being aware of a document, and understanding and addressing the claim. Mr Godwin submits the Tribunal in the present case, whilst aware of the document, did not do the latter.
Mr Godwin also refers to Farhat v Minister for Immigration & Border Protection [2018] FCA 93 in which Kenny J held the delegate failed to consider the applicant’s case as a whole, and the nature of the appellant’s case. The delegate there did not refer to the fact that the psychiatrist had identified the importance of the applicant as the carer of his wife. Whilst the delegate had specifically referred to the report, and extracted some parts of it, he had not understood the claim that was being made through the report that the applicant was his wife’s carer. In the present circumstances, Mr Godwin submits the Tribunal did not acknowledge that it was Mr Younis’ absence that triggers Ms Kelly’s severe separation anxiety.
Lastly, Mr Godwin refers to Chan v Minister for Immigration & Border Protection [2018] FCA 1323, where the Tribunal inferred that the anxiety condition suffered by the sponsor was being managed by drugs and treatment. Yates J there found was nothing to support that conclusion from the evidence. The second ground in Chan was whether or not the sponsor’s anxiety condition was responding to medication and treatment, which was not identified. Mr Godwin submits Chan illustrates how a topic being dealt with by the Delegate does not necessarily put an applicant on notice that all issues regarding it may be in dispute.
Minister’s submissions
Ground 1
In relation to Ground 1, Ms Laing submits that Mr Metry’s reports are heavily dependent upon the account given by Ms Kelly, they are quite brief, and are not substantial or detailed psychological or medical analysis. Ms Laing submits that Mr Metry’s reports do not go into any real detail about Ms Kelly’s condition, what is required, and what type of assistance would be needed. She says ultimately they demonstrated a lack of detail and analysis of/about Ms Kelly’s condition. Ms Laing submits the Tribunal clearly accepted the progress Ms Kelly made in recovering from her addiction issues, see at [21] and [22]. Ms Laing also observed that the Tribunal expressed sympathy for Ms Kelly.
Ms Laing submits that in the First Report Mr Metry is advocating for a specific outcome in the migration proceeding, which was also noted by the Delegate. She relies on the Delegate’s opinion that Mr Metry’s opinion was not a professional medical opinion.
Ms Laing submits that the Tribunal does deal with the Second Report, and reaches a similar conclusion that the Second Report was not an independent assessment because it does not look to establish facts and then provide a detailed psychological assessment about what might be expected about Ms Kelly’s condition, or its impact. Ms Laing submits the Second Report largely just repeats general assertions. A finding that the Tribunal was wrong to discount the reports would not meet the very high threshold of legal unreasonableness.
Ground 1(a)
In relation to Ground 1(a), Ms Laing submits that the Tribunal engaged with the SLHN Document. She says that the fundamental limitation of the SLHN Document identified is that it did not refer to Mr Younis. It cannot be said that the Tribunal did not engage with the SLHN Document in a meaningful way, merely, Ms Laing submits, that it did not engage with the SLHN Document in the way Mr Younis thought it should. An analysis of the way the Tribunal considered the SLHN Document would trespass into merits review.
Ground 3
In relation to Ground 3, Ms Laing submits that SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, is also an authority on the proposition that the decision-maker is not obliged to provide an applicant with a running commentary on every piece of evidence. The main question is whether Mr Younis is sufficiently on notice of the issues under review. Ms Laing submits that Mr Younis was on notice that the lack of mention of Mr Younis in the mental health reports were issues, as these were also issues before the Delegate.
Ground 4
In relation to Ground 4, Ms Laing submits that the Tribunal had regard to Ms Kelly’s separation anxiety, and risk of potential relapse at [24]. The Tribunal had regard to her evidence that she was unable to go to the shops by herself and suffered from panic attacks, in the context of Mr Younis departing from Australia. The Tribunal also expressed sympathy for Ms Kelly’s position and stated it had considered these claims carefully. The Tribunal however, identified 2 difficulties: first that there is limited medical evidence, and secondly, the assistance and support Ms Kelly it said she can derive from other sources in Australia. Ms Laing submits that the Tribunal considered Ms Kelly’s evidence of the effect Mr Younis’ departure would have on her, and that the finding that her separation anxiety was not sufficiently compelling to waive the criteria was open to it. Whilst Ms Laing acknowledges that another decision-maker may have come to a different conclusion, the Tribunal made this decision in light of the evidence before it, and was entitled to come to this conclusion.
Consideration
Ground 1
The first particular of ground 1 is that the Tribunal’s finding that Mr Metry’s reports were not independent reports, was not open to it. The First Report was provided after just over a week of treatment. It refers to 2 specific meetings. It is clear from the wording of the report that it is substantially based on Ms Kelly’s self-description of her psychological state and mental wellbeing. I accept that self‑description may well be required in psychological assessment. I note that Mr Metry reported Ms Kelly’s presentation in his consulting room that she “was appropriately dressed. She was alert and orientated in time, place and current information … Mrs Kelly’s speech was emotional on describing her circumstances, she also appeared to be agitated, anxious and depressed.” The opinion expressed by Mr Metry, however, does not reveal independent analysis. He states “… she has experienced anxiety and depression symptoms. She is suffering from a great deal of psychological problems and she needs her husband to continue supporting her”. No explanation is given how this opinion was formed, nor is any basis for it disclosed. There is simply a recitation of Ms Kelly’s self-report. Mr Metry goes on to recommend that “the immigration status of Mrs. Kelly’s husband be determined in his favour”.
In his Second Report, Mr Metry states that Ms Kelly is receiving cognitive behavioural therapy, and reiterates that Mr Younis has been a positive influence on Ms Kelly’s life and rehabilitation. Mr Metry reiterates his support for Mr Younis’ application as he views it as beneficial for Ms Kelly’s mental wellbeing.
The Tribunal did not cavil with Mr Metry’s professional qualifications. The Tribunal focused on the detail, and perceived independence, of the reports. It did not reject the statement that Mr Younis was performing activities that assisted the sponsor, Ms Kelly. Ultimately, the Tribunal decided that the support Mr Younis was providing to Ms Kelly was not a compelling enough reason to justify waiving the criteria.
I consider that it is apparent from a fair reading of the Decision at [24] and [25], and the Tribunal’s acceptance of Mr Metry’s reporting that Ms Kelly is receiving psychological therapy sessions, and still needs ongoing psychological attention, and her evidence that she has been seeing drug and family counsellors, that the Tribunal engaged with Mr Metry’s reports, and correspondence from SLHN (the SLHN Document) and from Ms Kelly’s GP. The Tribunal’s consideration of Mr Metry’s correspondence, made in the context of considering Mr Younis and Ms Kelly’s oral evidence (see mid [25]) provides a reasonable basis for its conclusions in the later part of [25].
I conclude that the present case is distinguishable from the circumstances at issue in NAJT, and in Omar. The Tribunal did not fall into jurisdictional error. It follows that Ground 1 is not made out.
Ground 1(a)
By Ground 1(a) Mr Younis asserts that the Tribunal did not give “genuine and realistic consideration” to the SLHN Document. At [24], the Tribunal expressed concerns that the Document contained no reference to the role played by Mr Younis in assisting Ms Kelly with her mental health challenges.
The author of the SLHN Document says “It is difficult to believe such a turnaround [Ms Kelly’s turnaround] but I believe she is sincere and determined to do what is necessary to be a better mother”. The Document makes no mention of any role played by Mr Younis in Ms Kelly’s turnaround. It refers to Ms Kelly’s improved behaviour at the meetings as well as her improved attitude and punctuality, but not Mr Younis’ presence (if any) at the meetings. The SLHN Document refers to 11 total attendances by Ms Kelly, 8 of which occurred after Ms Kelly and Mr Younis’ first meeting together, and of those 8 attendances, 3 attendances occurred after the two were married.
As the SLHN Document does not make any mention of the relationship between Ms Kelly and Mr Younis (either of its existence, or its nature), the Tribunal did not view the SLHN Document has having the “critical” corroborative value as expressed by Mr Younis. The Tribunal formed the view that this lack of any mention of the parties’ relationship was a “fundamental limitation” in the Document’s usefulness, and discounted its value. It was open to the Tribunal, on the evidence, to so conclude.
The Tribunal had regard to Ms Kelly’s evidence that she needs Mr Younis, but was concerned that the SLHN Document did not refer to Mr Younis, and so did not support Ms Kelly’s concerns sufficiently, in its view to waive the criteria. Given this engagement with the evidence, Karan is distinguishable on the facts. For these reasons, I find Ground 1(a) is not made out.
Ground 3
By Ground 3 Mr Younis contends he was not given a chance to respond to a perceived lack of medical evidence and evidence of Mr Younis’ role in assisting Ms Kelly. The Delegate at page 5 of its decision stated (emphasis added):
"However, you have provided no evidence demonstrating the type or extent of support you provide to the sponsor Jessica. Based on the letters provided, it appears you have had no involvement in the Jessica's (sic) appointments and she has been able to independently manage attending the appointments. You have provided a psychologist's report, which makes reference to you and the support you provide the sponsor, however I give limited weight to this document given it was provided to the sponsor soon after you received the Schedule 3 Natural Justice letter from the Department and given this document is colloquial in nature, based on reported symptoms and does not reflect a history of treatment I do not accept it reflects a professional medical opinion. I am not prepared to waive the Schedule 3 criteria on the basis of the sponsor's mental health condition. "
In Chan (relied upon by Mr Godwin) at [37], Yates J stated that “The issue of the sponsor’s anxiety condition was not an issue arising in relation to the delegate’s consideration of whether “compelling reasons” existed. Although the existence of the sponsor’s anxiety condition was before the Tribunal, it could not reasonably be said that the appellant was on notice that the sponsor’s response to medical treatment for that condition was an issue and, in particular, that a positive response to treatment constituted a reason for not finding that compelling reasons existed for waiving the Sch 3 criteria. The appellant should have been put on notice of that issue”.
In contrast, in the present case, I consider that in the paragraph of the Delegate’s decision set out above the Delegate explained their concerns with the report that, although it referred to Mr Younis, its timing, colloquial nature, based on self-report, and that it does not reflect a “history of treatment”, and put Mr Younis on notice that the material relied upon before the Delegate was deficient, and in particular, that the role Mr Younis played in supporting the sponsor was an issue. I consider that Mr Younis was on notice, and was given the opportunity to respond.
For these reasons I find Ground 3 is not made out.
Ground 4
By Ground 4 Mr Younis contends that the Tribunal did not address Ms Kelly’s severe separation anxiety.
Ms Kelly’s diagnosed separation anxiety was considered by the Tribunal at [24]. It had regard to her submission that "she wouldn't be able to cope" if Mr Younis departed, and to her evidence "that she cannot go to the shops by herself and suffers from panic attacks". The Tribunal also said that: "The Tribunal sympathises with the sponsor and has considered these claims carefully."
Mr Godwin submitted that the present case is analogous to Farhat because there is a lack of reference to the fact that Mr Younis’ absence triggered Ms Kelly’s separation anxiety. However, in Farhat the delegate focused heavily on the significance of the marriage itself occurring (at [35] – [37]), and did not consider the principal reason for the application, being his wife’s mental illness, which had been identified in the psychiatric reports, and that he had provided her with the care she needed. Relevantly, as Kenny J explained at [39]:
In considering whether or not the appellant’s waiver request satisfied the requirements of Reg 2.05(4)(a)(i) and (ii) the delegate did not address the appellant’s claim that his partner since 2005 had been suffering mental illness (of the kind identified in Dr Ishrat Ali’s report) since 2011, and that the appellant provided her with the requisite care. Had the delegate appreciated and addressed the appellant’s claim at this point, the delegate would have been required to consider whether the appellant’s provision of care and support to meet Ms Salami’s need consequent upon her illness constituted compelling and compassionate circumstances that had developed since the grant of the appellant’s tourist visa over which the appellant had no control and that resulted in a major change to his circumstances. It is clear that the delegate did not do so.
In Farhat (at [39]), Kenny J found that whilst the delegate did discuss general feelings of anxiety and stress, the delegate did not mention the sponsor’s mental illness, which demonstrated a distinct lack of understanding on the applicant’s circumstances founding compelling reasons for waiving the Schedule 3 criteria.
The Tribunal’s analysis at [24] demonstrates an understanding that Ms Kelly claims to have been diagnosed with separation anxiety. The Tribunal, however, considered the medical evidence regarding Mr Younis' role in assisting her to address and manage that condition was deficient. The Tribunal also considered that Ms Kelly would be able to access community and government support whilst Mr Younis was offshore. The Tribunal was unpersuaded, however, that these matters were sufficiently compelling to warrant waiver of the criteria.
It is apparent from the Tribunal’s decision at [24] that the Tribunal appreciated that the parties claimed that Mr Younis' departure would do more than deprive the sponsor of his companionship and assistance. It considered claims that his absence would have a detrimental effect upon Ms Kelly’s mental health conditions (including her separation anxiety). The Tribunal, however, considered that the medical (and allied health practitioners’) evidence was limited and exhibited deficiencies, and secondly, that Ms Kelly could obtain a wide range of government and community support with any mental health issues whilst Mr Younis was offshore.
I consider the Tribunal’s findings were open to it, on the evidence. It was open to conclude, on the evidence before it, that there were not compelling reasons warranting a waiver of the Schedule 3 criteria. The Tribunal did not fall into jurisdictional error.
It follows Ground 4 must fail.
Conclusion
I have concluded that Mr Younis has not made out any of the grounds in his further amended application. It follows that the application for review should be dismissed with costs. I will so order.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 2 September 2020
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