FEDERAL COURT OF AUSTRALIA

SZUDO v Minister for Immigration and Border Protection [2018] FCA 194

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

LOGAN J:

1    The appellant is a citizen of the Arab Republic of Egypt. On 11 April 2014, he applied under the Migration Act 1958 (Cth) for what is known as a Partner (Temporary) Class UK visa. That application was made on the basis of his relationship with his sponsor. The appellant married a woman in New South Wales on 1 April 2014. As at 11 April 2014, the Class UK contained but one subclass: 820 (Partner) Temporary. As set out in the Migration Regulations 1994, the criteria for that visa are to be found in Pt 820 of Sch 2.

2    The Minister’s delegate refused to grant the visa on the basis that the appellant did not satisfy cl 820.211. That was because the delegate was not satisfied that the appellant and the sponsor were in a genuine spouse relationship. Further, the delegate was not satisfied that the appellant met the Sch 3 criteria or that there were compelling reasons for not applying those criteria.

3    The appellant sought the judicial review on the merits of the Minister’s delegate’s decision by the Administrative Appeals Tribunal (the Tribunal). On 17 August 2016, for reasons in writing given that day, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant to the appellant the Partner (Temporary) Class UK visa which he had sought. The appellant then applied to the Federal Circuit Court for the judicial review of that decision.

4    On 10 August 2017, that court dismissed with costs the judicial review application. It is from that order of dismissal that the appellant now appeals to this Court. The grounds of appeal are these:

1.    The Federal Circuit Court judge erred in finding that the Tribunal was not in error as it failed to take into account relevant consideration and took into account irrelevant considerations in making its finding as to the existence of compelling circumstances in this matter.

Particulars:

(a)    The FCC failed to consider that the Tribunal did not consider the experts’ evidence before it on the issue of family violence and its impact on the applicant.

(b)    It failed to consider that the Tribunal did not to give any consideration the nature of family violence and its effects suffered by the appellant.

(c)    It failed to consider that the appellant was taking treatment for his mental condition as a result of the family violence.

(d)    It failed to consider that the Tribunal relied heavily on the outcome of the previous negative RRT decision. At paragraph 19 it said, it was considered at RRT that he would not suffer persecution due to his political membership or political activities.

2.    The Federal Circuit Court judge erred in finding that the Tribunal evaluate itself the protection visa claimed of the appellant.

Particulars:

(a)    the Tribunal expected documentary evidence from the applicant to prove his claim. At paragraph 20 it said the applicant did not submit any further documentary evidence in support of his belief that he would be killed for his political activities and beliefs at 22 it said he did not submit any documentary evidence concerning why he should be targeted as a previous member of the NDP.

(b)    it failed to consider the country information in relation to the appellant’s refugee claim.

(c)    it failed to consider that the appellant had significant fear of return as he was constantly threatened by the sponsor to return to Egypt to let him be killed by a bomb.

(d)    the appellant was constantly threatened with sending back to Egypt to be killed by the barbarians.

5    As to the first ground, the difficulty for the appellant is that the Tribunal member expressly had regard to the expert evidence which was placed before the Tribunal.

6    The Tribunal member made particular reference to a report from a general practitioner, Dr Helen Tran, of 11 July 2016 relating examinations that day, the preceding day and 21 April 2016. More particularly, having regard to the submissions put the Tribunal’s reasons disclosed at para 28, a particular engagement with views expressed by a psychologist, Ms Jane McDowall, in a report of 13 July 2016 in which views are expressed in relation to the appellant’s experience of domestic violence. Of this report:

The tribunal notes there is no evidence that the psychologist has treated the applicant. The report is an assessment of the applicant only. The tribunal considers that the report from Ms McDowall was not based on any ongoing treatment of the applicant and was obtained for the purpose of the application to the tribunal. Accordingly, the tribunal places limited weight on this report.

These are observations open about the character of the report. Even so, the Tribunal member went on in this way in the reasons:

The tribunal accepts that the relationship between the applicant and his wife was unhappy and stressful and that his wife wanted to threaten him and inflict hurt.

7    The Tribunal further stated that it was not satisfied that the claimed family violence is a compelling reason not to apply the Sch 3 criteria. There is probably not much to be gained from any endeavour to give greater precision than an understanding of ordinary English to the expression “compelling reason”. Endeavours though have been made to do this in earlier authority. The Tribunal refers to these at para 16 of the reasons. It is not put that there is evident any misunderstanding as to what may or may not amount to compelling reasons.

8    The expression is not defined but, there is earlier authority to the effect that the reasons must be sufficiently convincing to move a decision-maker to exercise his or her discretion to waive the requisite criteria and they must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving particular criteria: see MZYPZ v Minister for Immigration and Citizenship (2012) FCA 478 at [10], Babicci v Minister for Multicultural Affairs and Immigration (2005) 141 FCR 285 at [24]. The Tribunal member was doubtless required to have regard to the report and the views expressed in the report of Ms McDowall.

9    The Tribunal member has done this but, that did not oblige the Tribunal member necessarily to conclude that those views constituted compelling reasons. Another aspect of ground 1 is an alleged failure separately to engage with the merits of the appellant’s claim for this visa and more particularly for there to be a waiver of the Sch 3 criteria for compelling reasons. It is put that what the Tribunal did in effect was just to rely uncritically upon and adopt views earlier expressed by the Refugee Review Tribunal about the circumstances prevailing in Egypt as they related or at least were claimed to relate to the appellant.

10    In particular, it is said that such a conclusion is evident from para 19 of the Tribunal’s reasons. It was common ground, and rightly so, that a mere rubber stamping by a later merits review tribunal of views earlier expressed by another merits review tribunal on a particular subject, would amount to a failure to discharge the statutory function of review. It was the core function of the Tribunal to review the Minister’s delegate’s decision: see The Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18].

11    Further, it was common ground that the review required an act of intellectual engagement by the Tribunal with the material before it. At least in relation to material that is relevant to the decision under review, so much may readily be accepted. The Tribunal is not obliged to refer in its reasons to every item of information, and no error would be found in a failure, for example, to refer to material that was obviously irrelevant.

12    Assessing the merits of this particular aspect of ground 1 requires not just that para 19 be set out, but rather, as the learned Federal Circuit Court judge did, that rather more fulsome acts from the Tribunal’s reasons be set out.

18.    In the regulations at clause 820.211, certain criteria which had to be satisfied at the time of the application are set out. 820.211(2)(d)(ii) says, in effect:

In the case of an applicant who is not a holder of a substantive visa - …

And that applies in this case – then:

(ii) the applicant must satisfy schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.

19.    Looking at schedule 3 criteria – number 3001 – the application had to be validly made within 28 days after the relevant day. I have already made specific note of the date that he last held a substantive visa, which was a date in April of 2013 and because he did not apply within 28 days, that is the reason why the applicant is the present case needed to satisfy the Minister that there were compelling reasons for not applying that criteria.

20.    I agree with the submission made by Mr Pinder on behalf of the Minister that regulation 820.211(2)(d)(ii) requires an applicant to satisfy criteria 3001, 3003 and 3004 from schedule 3. In the present case, he did not even comply with 3001, therefore it is of course necessary to look immediately at the second part of subparagraph (ii) – the compelling reasons issue – and as I have already stated, the first and main compelling reason contended by the applicant related to the question of his fear for his own safety should he return to Egypt. As I have already stated – in paragraph 27 of the Tribunal’s decision, it disposed of that particular issue.

21.    In relation to one of the other claims for compelling reasons, the applicant referred to the question of family violence and he says that he had been denied procedural fairness – that is, ground number 3 – by not being invited to comment on the documentary evidence. I will start with looking at it from the point of view of ground number 2. On this issue of the family violence, the Tribunal considered the letters from the GP and the psychologist, considered the evidence of the applicant and came to a conclusion that was obviously, in my view, open to it. It came to the conclusion that the claimed family violence was not a compelling reasons not to apply the schedule 3 criteria.

22.    In particular, I note paragraphs 23, 24, 25, 26 and 28 of the Tribunal’s decision state as follows:

23. The Applicant said that he also considered that the fact that he had suffered family violence perpetrated by the sponsor was a compelling reason for not applying the Schedule 3 criteria. He said that his wife had threatened him that he would be deported and this had made him very anxious. He said that although he had not known about her drinking until after they were married it was soon after the wedding that he became aware that she was an alcoholic. He would smell alcohol on her breath when she came home and she would obviously drink to excess. He also said that on one occasion she had asked him for money to have her car fixed by the mechanic but when he asked her a few days later where the car was she said she had sold it. He was upset and angry that she had misled him and taken his money as he had wanted to plan for their future together in Australia. Later she bought another car and then asked him to give her money to make further payments on that car. On one occasion she hit him with a laptop computer and this made him angry and upset. He considered these incidents constituted family violence.

24. The applicant also said that one day when he had been reading on the internet and saw that a number of people had been killed in a bomb blast in Egypt. He had become upset and when his wife asked him why he was upset he told her. She had then said that if it was not for her he might also have been killed by the bomb. This cause tension between them and he told her not to talk to him like that.

25. The applicant said that his wife had left him after the incident in which she hit him with the laptop. She told him not to come after her or she would call the police. She then threatened him by saying that if she called the police he would know what would happen. By this she presumably meant that she would cancel his visa.

26. The applicant said the he wanted to submit a photo of his wife taken on the day she left him to show the Tribunal the expression on her face. He said he is now not able to overcome his fears. The Tribunal did not consider it necessary to have the photo in order to make its decision as the applicant had provided evidence about his wife’s attitude and behaviour to him at the hearing.

28. After the hearing the applicant submitted a copy of a report by a psychologist, Jane McDowall, dated 13 July 2016 who assessed the applicant for the purposes of the applicant. The psychologist states she considers the applicant had suffered family violence perpetrated by his wife, the sponsor. The Tribunal notes there is no evidence that the psychologist has treated the applicant. The report is an assessment of the applicant only. The Tribunal considers that the report from Ms McDowell was not based on any ongoing treatment of the applicant and was obtained for the purpose of the application to the Tribunal. Accordingly the Tribunal places limited weight on this report. The Tribunal accepts that the relationship between the applicant and his wife was unhappy and stressful and that his wife wanted to threaten him and inflict hurt. The Tribunal is not satisfied that the claimed family violence is a compelling reason not to apply the Schedule 3 criteria.

23.    In paragraph number 28, the Tribunal makes it clear that the Tribunal had considered and evaluated this contention by the applicant and the reasons why the Tribunal came to the conclusion that the claimed family violence was not a compelling reason to apply the schedule 3 criteria. I will also deal with ground number 3 because it is closely related. I think Mr Pinder is right. There is probably a third aspect to the compelling reasons relating to the breakdown of the relationship with the sponsor and in paragraph 29 of the Tribunal’s reasons, it was accepted that the applicant had an unhappy relationship with his wife and that he was depressed and anxious about his future.

13    It was open to the Tribunal, as evidently occurred and is recorded in para 19 of the reasons, to put a conclusion earlier reached in another Tribunal so as to understand a basis for disagreement and offer an opportunity for related submissions, and, for that matter, the adducing of other evidence on a particular subject. But the reasons also disclose that the Tribunal did rather more than that, embarking itself on a dialogue with the appellant about issues that could only have been raised if the Tribunal member was separately engaging with the appellant’s claimed experience in Egypt. I refer in particular to the questions directed to the appellant about why he had returned to Egypt in 2011 and 2012.

14    The learned primary judge concluded that there had been an act of engagement by the Tribunal with the particular merits and that this distinguished the case from the position before Bromberg J in MZYPZ v Minister for Immigration and Citizenship (2012) FCA 478. I agree for reasons which I have already set out. The particular passage from the Tribunal’s reasons is quite inconsistent with an aggregation of function by the Tribunal, whose decision was under judicial review in the Federal Circuit Court of the review function. So much, then, for ground 1.

15    Ground 2 also alleges particular failings in relation to the appellant’s claimed position or situation in Egypt. One aspect of that is that it is said that the Tribunal’s reasons evidence a disposition only to act on documentary evidence. Particular reference is made in the ground of appeal to para 20 of the Tribunal’s reasons, but, on this subject, reference might also be made to para 27, which is in these terms:

27.    It is worth noting, that section 359A of the Act does not apply to information that the applicant gave for the purpose of the applications for review and I note in particular paragraph 359A(4)(b). I also note that deficiencies in the applicant’s own documentary evidence or the identification of deficiencies in applicant’s own documentary evidence do not constitute information in the sense that it is used in section 359A of the Act.

16    The burden, though, as to this is that the Tribunal has assessed the evidence before it. It was just a fact that there was not any further proffering of documentary evidence. The Tribunal’s ultimate conclusion in relation to the claimed situation in Egypt as put forward by the appellant is to be found in the concluding sentence of para 27. That does not, on my reading, amount to a closing of the mind to acting only on documentary evidence, just a reference to the evidence as a whole not constituting a sufficiently compelling reason not to apply the Sch 3 criteria.

17    Once again, the somewhat amorphous nature of that expression compelling reason may yield circumstances where reasonable people might reasonably differ as to what was and was not compelling, but the Tribunal member was not obliged to accept that the position as related was compelling.

18    It is said that error is to be found also in a failure on the part of the Tribunal to consider that the appellant had a significant fear of return as he was constantly threatened by the sponsor, his estranged wife, of being returned to Egypt where he would be killed by a bomb. But this subject is one expressly addressed by the Tribunal in the Tribunal’s reasons: see para 24.

19    Further, the Tribunal member has, as para 21 makes evident, had occasion to have pause for thought about the claimed position in Egypt, as it was said to affect the appellant on the basis of his returning there in 2011 and 2012. The Tribunal member was not obliged to have regard to information concerning Egypt. If there was something in this which was thought to be as a result of earlier Refugee Review Tribunal proceedings which was thought to be supportive of compelling reasons, it was for the appellant to highlight this.

20    In short, then, what are said to be failures on the part of the Tribunal are not. All that has occurred here is an evaluation of material which was before the Tribunal directed correctly to the pertinent issue of whether compelling reasons were to be found. The Tribunal made a decision open to it on the merits of that. There was no error in the dismissal of the judicial review application on the grounds which have been set out in the notice of appeal. For these reasons, the appeal must be dismissed.

Associate:

Dated:    28 February 2018