FEDERAL COURT OF AUSTRALIA

CYG16 v Minister for Immigration and Border Protection [2018] FCA 433

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, fixed in the lump sum of $5,995.33.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an appeal from orders of the Federal Circuit Court made on 13 October 2017: CYG16 v Minister for Immigration & Anor [2017] FCCA 2476. The Federal Circuit Court dismissed an application for judicial review in relation to a decision of the Administrative Appeals Tribunal made on 22 June 2016 to affirm the decision under review, with the effect that the appellant was not granted the Partner (Temporary) (Class UK) visa for which he had applied.

2    The background to the appellant’s claims, including his previous applications for protection prior to his application for his partner visa, is comprehensively set out in the Federal Circuit Court decision and need not be repeated here. It is appropriate to set out only the background necessary to explain the determination of the appeal.

3    The appellant applied for a partner visa on 12 October 2015 and this application was refused by a delegate of the first respondent on 11 March 2016, on the basis that the appellant did not satisfy cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth). It is not necessary to set out all the criteria in that clause. Clause 820.211(2)(d)(ii) required the delegate to be satisfied the appellant met further criteria in Sch 3 of the Regulations. The relevant part of Sch 3 (Criterion 3001) required the appellant to have made his partner visa application within 28 days after the last day the appellant held a substantive visa.

4    The delegate found, and it was not disputed before the Federal Circuit Court or on this appeal, that the appellant had last held a substantive visa more than five years earlier, so he was considerably outside the 28 day requirement.

5    This criterion did not have to be satisfied if the delegate was satisfied that there were “compelling reasons for not applying” the criteria in Sch 3.

6    The focus of the appellant’s evidence and arguments before the delegate, and subsequently before the Tribunal, was on establishing “compelling reasons”.

7    Applying departmental policy, the delegate found the appellant’s circumstances did not provide compelling reasons for not applying the Sch 3 criteria. The appellant applied for review to the Tribunal on 18 March 2016 and he attended a hearing with his partner (and sponsor) on 17 June 2016.

8    The Tribunal offered at least eight sets of reasons for deciding it was not satisfied there were compelling reasons not to apply the Sch 3 criteria. The Federal Circuit Court set these out in detail at [9]–[15] of its reasons. The Tribunal relied on the view it had formed of the appellant, which was not favourable. It relied on the appellant’s own admissions in relation to previous visa applications that he had included false claims, and found:

…the applicant had been willing to provide false information to the Department and to the Tribunal to advance his immigration claims without any concern or regard to the truth, and […] this undermined the credibility of the applicant in all the evidence the applicant presented to the Tribunal in support of his Partner visa application.

9    There were several aspects of the appellant’s account the Tribunal did not believe. Some of these findings were based on the appellant’s own evidence, and some on matters such as the fact the appellant started living with his partner/sponsor permanently on 5 October 2015, eight days before the application for the partner visa was filed, the absence of independent evidence about the nature and extent of their relationship, a non-acceptance that there was anything in the appellant’s relationship with the sponsor’s daughter which could amount to a compelling reason, a disbelief of the amount of assistance the appellant provided to the sponsor’s mother, and a disbelief that the appellant’s religious faith (as a Coptic Christian) would place him at risk of harm if he had to return to Egypt.

The judicial review before the Federal Circuit Court

10    The appellant was unrepresented before the Federal Circuit Court, as he is before this Court. He made submissions that fell into two categories identified by the Federal Circuit Court: those which related to the grounds of judicial review, and those which did not. In this second category, the Federal Circuit Court permitted him to make submissions but described them as manifesting “the applicant’s disagreement with the Tribunal’s assessment of the applicant’s risk of being harmed if he were to return to Egypt”. The Court found that they did not disclose any jurisdictional error.

11    In the first category, acting quite properly and attempting to discern the grounds of review from the application the appellant completed himself, the Federal Circuit Court identified three grounds of review. The first ground, and set of arguments, suggested the Tribunal had made up its mind against the appellant. The Federal Circuit Court noted this ground was difficult to assess without a transcript of the Tribunal’s hearing. However the Federal Circuit Court found that the aspects of the Tribunal hearing about which the appellant complained were in truth examples of the Tribunal putting inconsistencies to the appellant, or adopting a sceptical attitude to what the appellant was claiming.

12    The second and third grounds, and sets of arguments, were found to be along the same lines as the first, and the Federal Circuit Court rejected them for the same reasons. The judicial review application was dismissed, with costs.

The appeal to this Court

13    When the appeal was called on, the appellant, with the assistance of an interpreter, applied for an adjournment of the hearing of the appeal. He informed the Court that he wished to have more time to try and secure legal representation, and explained that he was experiencing financial hardship and hoped to get money either from his brother in the United States, or from Egypt. He confirmed he had not been able to secure a lawyer to represent him at the Federal Circuit Court. The adjournment application was opposed by the Minister. I refused the adjournment application, noting that even though it was made late and without notice, I would not have been concerned by those matters if there was a real prospect the appellant would have secured legal representation if I granted the adjournment. However I was not satisfied on the basis of what he had said, and in the absence of any evidence, that there was such a prospect. The fact he had not been able to secure legal representation before the Federal Circuit Court gave me no confidence that, even if I were to adjourn the hearing of the appeal, the appellant would be able to secure legal representation for the adjourned hearing.

14    The appeal hearing therefore proceeded.

15    In his notice of appeal, the appellant set out three grounds of appeal from the Federal Circuit Court:

1.    His Honour Judge Manousaridis of the Federal Circuit Court of Australia failed to take into consideration the long term relationship with my partner as we have lived in a de facto relationship from 30 August 2008 during which time I would spend 3-4 days each week at the sponsor's house and that we commenced living together on permanent basis on 5 October 2015. That should lead to the long term relationship which in itself should lead to waive Schedule 3.

2.    The Tribunal and His Honour had evidence of medical condition of my partner as well as my stepdaughter Olivia to whom I was a father figure since 2008 yet ignored that this should constitute compelling reasons.

3.    It looks like the Tribunal concentrated on the negative aspect of my status in Australia rather than on the positive aspect and the relationship which is long term with my partner.

16    At the hearing of the appeal, I asked the appellant to explain to the Court what he meant by each of these paragraphs. He stated that he was not an expert in the law. He emphasised the situation was bad in Egypt, and before the Tribunal he had focused on the huge number of incidents in Egypt, and submitted what he had said was not an exaggeration.

17    I directed the appellant’s attention to the notice of appeal in the appeal book and to the grounds he had set out. I asked him if he had had help to frame those grounds and he said he had. I asked the interpreter to translate the grounds for him, and then invited him to address the Court on what was said there. However, the appellant returned to the issue about the situation in Egypt. After a little more prompting, he stated that he did not believe the Tribunal paid enough attention to how long he and his partner had been together, nor to how long he had been looking after his partner’s child.

18    In oral submissions, and in response to the appellant’s statements, the Minister’s counsel pointed to the part of the Federal Circuit Court decision (at [20]-[21]) where the Federal Circuit Court records the appellant’s attempts before it to submit further country information, an attempt which the Federal Circuit Court correctly rejected.

19    As to the Tribunal’s decision, addressing the appellant’s oral submissions about the situation in Egypt, the Minister accepted that a claimed risk of harm to a Partner visa applicant in a country to which she or he would return was a permissible consideration for the Tribunal in terms of identifying “compelling reasons” not to apply the Sch 3 criteria. I consider that submission is correct. However as the Minister also submitted and the Federal Circuit Court found at [21], the Tribunal did consider the situation in Egypt, by reference to country information, as a potential compelling reason, but was not satisfied it was such a reason.

20    In response to the appellant’s statements at the appeal hearing, the Minister also submitted that the Tribunal did not question the genuineness of the appellant’s relationship with the sponsor but did consider (at [64]-[65]) the length of the relationship, and the timing of the appellant and the sponsor commencing to live together were matters relevant to determining whether there were “compelling reasons”. The Minister submitted, and I accept, that these were permissible considerations for the Tribunal to take into account and it was open to the Tribunal to characterise the appellant’s description of the relationship prior to October 2015 as exaggerated, and to find (at [66] of its reasons) that there was “very little commitment to any relationship with each other” prior to October 2015. Also in response to matters raised by the appellant at the appeal hearing, the Minister submitted the Tribunal did take into account the appellant’s claims about his role in caring for the sponsor’s daughter, but it was open to the Tribunal to find (at [71] of its reasons) that the appellant had not been directly responsible for meeting any of the daughter’s needs over that period and that the sponsor and her mother have been able to meet the daughter’s needs between themselves. I accept that submission.

21    The Minister’s counsel also correctly emphasised that the usual consequence of not satisfying the Sch 3 visa criterion, such as not holding a substantive visa, is that the person must go offshore to obtain a visa. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121, members of the Full Court recognised this was a necessary consequence, and the power to avoid that consequence by finding compelling reasons was designed to give decision-makers some flexibility, in a limited number of circumstances, to avoid the hardship being imposed: see [2] (Dowsett J), and also [53]–[54] (Griffiths J).

22    Turning now to the grounds of appeal as they appear in writing, it is clear they involve a disagreement by the appellant with the conclusions reached by the Tribunal, now expressed by reference to the Federal Circuit Court not being prepared to accept the appellant’s criticism of the merits of the Tribunal decision. The appellant is not to be criticised for framing the grounds that way, given he is unrepresented. Nevertheless, on an appeal from a judicial review application, it is not this Court’s function to consider and pronounce upon whether at a factual level the Tribunal should have reached a different conclusion.

23    The Minister made written submissions objecting to the way the grounds in the notice of appeal were expressed, because they differed from how the arguments were put to the Federal Circuit Court. That may be correct. However given the appellant is unrepresented, and given the importance of this application to him, I propose to consider the arguments he raises to the extent it is within the Court’s function to do so. There is no prejudice to the Minister, nor to the Court or other litigants, as all arguments were able to be dealt with on the day appointed for the hearing. The time that would have been taken in attempting to confine the appellant to matters as argued before the Federal Circuit Court would have exceeded the time taken to allow him to develop his points in the way he wished.

24    On the first point made by the appellant, the Minister correctly submitted that the Tribunal closely considered the appellant’s relationship with his sponsor. It also accepted that the incidents and features of a spousal relationship could, in a given factual situation, provide compelling reasons.

25    The Tribunal appreciated the kind of threshold which needed to be met for there to be “compelling reasons”. At [45] it set out the following proposition:

However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]…

26    The Tribunal referred to the statement in the extrinsic material introducing the Regulations, to the effect that people who:

…are already in a long-standing relationship which has been in existence for two years or longer ... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

27    The Tribunal, correctly, emphasised the word “may” in this passage. It then went through all the factors the Federal Circuit Court summarised in its reasons. At [69] the Tribunal stated:

As stated above, any couple who are in a genuine relationship would face some degree of emotional and financial hardship if they are required to be separated while an offshore Partner visa application is filed. In these circumstances, the sponsor of the applicant usually remains living in Australia and continues to communicate with the applicant by telephone or other electronic devices, which the parties have been doing while they have been living in separate homes. Parties in these circumstances generally spend holidays together either in the home country of the applicant or a nearby country. There is nothing to indicate that the circumstances of the parties or any genuine emotional commitment they may have to each other is any different to any other couple in a genuine relationship.

28    It is apparent the Tribunal considered the appellant’s relationship with his partner, but simply did not find its nature and length, or the level of commitment revealed by the evidence, to be a compelling reason to dispense with the Sch 3 criteria. That was part of the Tribunal’s merits review function and not a matter with which this Court can interfere, any more than the Federal Circuit Court could have done so.

29    As to the second argument about the way the Tribunal dealt with the medical evidence before it, I find that there was no jurisdictional error in the Tribunal’s approach. It was not required to accept the medical evidence uncritically, especially the evidence from the sponsor’s treating doctor, about whom the Tribunal made the following finding:

The report from the sponsor’s general practitioner appears to accept uncritically the information provided by the sponsor.

30    It also found that the medical evidence about the sponsor’s health issues:

…do[es] not indicate that the sponsor’s circumstances would be any different to any other person who is sponsoring an applicant for an offshore Partner visa application.

31    The third argument made by the appellant appears to raise issues of the Tribunal’s bias against him, as he also submitted to the Federal Circuit Court. That is what I understand by the allegation that the Tribunal focussed on the negative rather than the positive. On this matter, I consider the Federal Circuit Court was correct to conclude there was no evidence of bias, actual or apprehended, in the Tribunal’s reasons.

Conclusion

32    The Federal Circuit Court’s orders are not affected by any appealable error. It can be accepted that the appellant feels the Tribunal’s decision is incorrect, and that he and his partner have been wronged by it. I also accept that there is likely to be some real hardship imposed on the appellant if he is required to leave Australia and apply for a partner visa offshore. However, this Court’s function is to ensure that the Federal Circuit Court has correctly assessed whether a Tribunal decision was made in accordance with Australian law and by a fair process, as required by the applicable legislative and regulatory scheme. The Federal Circuit Court discharged its task without error in this case.

33    The appeal must be dismissed.

34    At the hearing the Minister was granted leave to file an affidavit concerning the costs incurred in defending the appeal. The Minister sought his costs to be fixed by way of a lump sum in the amount of $5,995.33.

35    When the appellant was asked for his views about the Minister’s submissions he stated, among other matters, that he would face financial hardship if his appeal was not successful:

Already I have financial hardship. But I just – I want the court just to know if I have to depart the country, it means that I have to pay the cost of the first court and the second court and I have to pay for a new application when I go back to Egypt, which is $7000. So all of them are really dealing with money and I’m going to face difficulty in getting the money.

36    Although the Court recognises the appellant is likely to have difficulty being able to pay the Minister’s legal costs as he has been ordered to do, that is a difficulty faced by most if not all litigants in a similar position to him in the migration jurisdiction. Unless there is some additional reason, or evidence, which would make this factor particularly material to the exercise of the Court’s discretion on costs, it is not a factor which can avoid the making of a costs order.

37    I am satisfied that the amount sought by the Minister is fair and reasonable, and there will be a costs order reflecting that figure.

Associate:

Dated:    29 March 2018