FEDERAL COURT OF AUSTRALIA

Mahrous v Minister for Immigration and Border Protection [2018] FCA 1876

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing the appellant’s claim for relief in relation to a decision of the Administrative Appeals Tribunal (“AAT”), affirming a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a Partner (Temporary) (Class UK) Subclass 820 visa (“partner visa”): Mahrous v Minister for Immigration & Anor [2018] FCCA 1146.

2    The last substantive visa the appellant held expired on 30 March 2012, more than one year before he applied for the partner visa on 20 June 2013.

3    As he was not the holder of a substantive visa at the time of the visa application, cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (“Regulations”) required the appellant to satisfy, relevantly, the criterion 3001 in Sch 3 to the Regulations unless the Minister was satisfied that there were compelling reasons for not applying those criteria.

4    There was no dispute that the appellant did not satisfy criterion 3001 because the visa application was not made within 28 days of the “relevant day”, being the date that his last substantive visa expired.

5    Accordingly, the appellant was required to satisfy the decision-maker that there existed compelling reasons to waive the requirement that he apply for his visa within 28 days of the date of expiry of his last substantive visa.

6    The Minister’s delegate was not persuaded that there existed compelling reasons to waive criterion 3001.

7    The appellant sought review in the Migration Review Tribunal (“MRT”). On 26 February 2015, the MRT affirmed the delegate’s decision. That decision, as well as a subsequent decision of the AAT, were set aside by the FCCA. On 1 May 2017, a differently constituted AAT again heard the application for review for a time and, on 26 October 2017, the AAT affirmed the delegate’s decision (“third Tribunal decision”). On 8 May 2018, the FCCA then denied the appellant’s application for review of the third Tribunal decision.

8    The present notice of appeal from the FCCA’s 8 May 2018 decision states the following two grounds of appeal:

1.    The [FCCA judge] made legal error by not considering grounds of my Judicial Review application where the [Tribunal] made legal error.

2.    The [Tribunal] has made legal error in not considering our long relationship of cohabitation.

9    The notice of appeal also sets out the following, under the heading “Particulars”:

After the hearing, Mr Mahrous made submissions and [sic] about inconsistencies in evidence from him and Ms Deng given at hearing in 2015. The evidence is about whether [Ms Deng’s son] lived with them for several months in Wagga Wagga. That matter might be relevant to the issue of whether they had a married relationship at any relevant time. The Tribunal has not considered it because it has not made a finding on that issue.

“Compelling reasons” for not applying criterion 3001

10    The “compelling reasons” must be sufficiently powerful to lead the relevant decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; 141 FCR 285 at [24].

11    The waiver provisions in relation to the Sch 3 criteria were introduced by Migration Regulations (Amendment) 1996 No 75 (Cth). The explanatory statement that accompanied the amending regulation explained the purpose of the amendment as follows:

The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

-    here there are Australian-citizen children from the relationship; or

-    where the applicant and his or her nominator 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.

12    The Tribunal noted:

The expression “compelling reasons” is not defined in the Act or Regulations. 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]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

13    In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121, the Full Court held that “compelling reasons” for waiver of the Sch 3 criteria are not temporally limited. As Robertson J said at [18]:

The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Schedule 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing “compelling reason”, the circumstances which prevail at that time.

14    The comments of Griffiths J at [54] were to similar effect:

The waiver power was obviously intended to be available to deal with cases where there were “compelling reasons” for not putting particular applicants to the hardship of having to leave Australia for that purpose. Given the nature of that power and the time when its possible application arises for consideration, clear words are required which would have the effect of confining that consideration to events which only existed at the time the visa application was made. Such a restriction would remove from consideration circumstances which occur after that date and constitute “compelling reasons” for not exposing some partner visa applicants to the hardship of leaving Australia and make a fresh application from overseas. I do not consider that the text of the relevant provisions contains such clear words.

15    In Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [30] and following, Allsop CJ noted that although consideration of “compelling reasons” seems, in principle, not to be limited to hardship, hardship is the element most often referred to and set out reasons why this is so. At [36], the Chief Justice recognised that hardship is not the only factor to be considered and contemplated that an applicant’s connection to Australia can give rise to compelling reasons or circumstances.

Background facts

16    The appellant first arrived in Australia in August 2007 on a student visa that was valid until 6 February 2010. He departed Australia on 11 July 2010 and returned on another student visa which was granted on 1 March 2010 and valid until 30 March 2012.

17    On 3 June 2013, the appellant lodged an invalid partner visa application. On 20 June 2013, he applied for the visa in issue on this appeal, on the ground of his spousal relationship with the sponsor, Ms Deng.

18    At [3] of the his Honour’s reasons, the FCCA judge set out the following notation made by the FCCA on 2 December 2016, when the appellant’s case was sent to the AAT for a third hearing:

THE COURT NOTES THAT:

The First Respondent concedes that the decision of the Second Respondent (the Tribunal) fell into jurisdictional error because it misunderstood the operation of clause 820.2l1(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth). In considering the operation of clause 820.211(2)(d)(ii), the Tribunal erroneously concluded that being in a longstanding genuine relationship, on its own, is not sufficient to establish compelling reasons for the waiver. The First Respondent concedes that there is no statutory basis for the Tribunal to reach the conclusion that the existence of a long term relationship on its own, could not give rise to a “compelling reason” for waiving the requirement that the applicant satisfy Schedule 3 criterion 3001.

Third Tribunal’s decision

19    The third Tribunal decision recorded that the AAT had considered documents in the Department’s visa application file, as well as the documents provided to the MRT and the AAT for all three tribunal hearings. The third Tribunal decision also recorded that the AAT had listened to recordings of the 2015 MRT hearing and the 2016 AAT hearing, and that the appellant and the sponsor gave evidence at the third hearing.

20    The appellant was represented by a lawyer at the third Tribunal hearing.

21    The AAT noted that the appellant and the sponsor married in May 2013 and that the appellant had consistently given evidence that they met on New Year’s Eve 2010 and lived together from December 2012.

22    The Tribunal recognised that the appellant and the sponsor would live apart for a lengthy period if the appellant was required to return to his home country, Egypt, because the sponsor would remain in Australia and the processing time for the visa was likely to be 18 to 24 months.

23    At para 20 of its decision record, the Tribunal accepted that if the appellant and the sponsor have a long and loving relationship, they are both likely to suffer some emotional hardship during any lengthy separation. However, the Tribunal noted that the evidence on that issue was inconsistent.

24    The Tribunal recorded the following matters concerning the relationship of the appellant and the sponsor:

21.    At hearing, Ms Deng firstly said that she does not want Mr Mahrous to leave Australia and confirmed his evidence that he provide her with emotional support. However, when the Tribunal asked for more details, she asked to give evidence in confidence. The Tribunal explained it was not possible to take evidence without disclosing the details to Mr Mahrous and asked her why she did not want to speak in front of him. She said that she is afraid of Mr Mahrous and that he had threatened her. The Tribunal advised her she was not obliged to give evidence and she chose not to say anything further.

22.    After the hearing, the Tribunal provided an opportunity for Mr Mahrous to comment on Ms Deng’s statements. Mr Mahrous denied she is afraid of him and restated his evidence that they have a long and loving relationship. He said Ms Deng had withdrawn a similar complaint to the NSW Police on the weekend before the hearing and he provided a statement from her withdrawing the allegations made to the Tribunal. It states Mr Mahrous has never threatened her and that she made unfounded allegations because of mental health issues and a fear of “the court”. Mr Mahrous’ statement provided the following explanation:

I believe the story she made up in the hearing about threatening her is just an act to get out of a situation that I don’t understand … I wish to further stress that my partner suffers from mental disorders (Mr Mahrous’ emphasis)…

I wish to conclude that my wife has a phobia from attending the hearings. She was suffering being a part of the application.

23.    Mr Mahrous also pointed out that they had spent the weekend before the hearing together at a hotel in the city and provided a written statement from Ms Deng. In the ordinary case, fear and anxiety do not explain giving false evidence and the explanation provided after hearing is unlikely.

24.    There is medical evidence that Ms Deng has issues with alcohol and has been prescribed medication for depression. It accepts those matters might have made it more difficult for Ms Deng to give evidence. However, there is no evidence she has mental health issues (with symptoms such as psychosis or serious phobia) that might explain why she would make serious allegations that were not true. The Tribunal does not accept the explanations provided and finds her statement resiling from her allegations is unconvincing. It prefers her oral evidence at hearing that she was afraid of Mr Mahrous and that he had threatened her.

25.    Ms Deng might continue to be afraid of Mr Mahrous and she might have withdrawn her police complaint and made the statement after hearing under duress. Alternatively, they might have resolved any differences and she might have made the statement because she wished to repair any damage she has done to Mr Mahrous’ case for the grant of a visa. In either case, the Tribunal infers any relationship is troubled and that Ms Deng did not support his application for review at the time of hearing or in the previous days when she made her complaint to NSW Police. This casts significant doubt on evidence of a loving relationship, which makes it unlikely that Ms Deng would suffer emotionally during any separation from Mr Mahrous or that Mr Mahrous’ absence would have a negative impact on her mental health or her capacity to manage her alcohol intake.

25    At para 29, the Tribunal concluded:

Ms Deng was afraid of Mr Mahrous on the day of the hearing and other evidence does not convince the Tribunal of his contention that they have a loving relationship and that he is a major source of emotional support for her. On the evidence available, it is not satisfied she would suffer emotional hardship if she lived apart from him for a lengthy period. It is also unlikely that a separation would exacerbate any mental health and substance abuse issues and the Tribunal finds those matters are not compelling reasons for waiving the Schedule 3 criteria.

26    At para 31, the Tribunal noted that it was not necessarily the case that married persons are a major source of emotional support for their spouses.

27    At paras 32-37 of its decision record, the Tribunal addressed the nature of the appellant’s relationship with the sponsor’s son. At paras 38 and 39, it considered the financial difficulties the appellant would face if he were required to return to Egypt. At paras 40-44, the Tribunal considered the psychological impact that applying the Sch 3 criteria would have on the appellant. At paras 45-56, the Tribunal considered the appellant’s claim that he would face a risk of harm were he to be required to return to Egypt.

28    At para 60 of its decision record, the Tribunal concluded:

Mr Mahrous has not lived in Australia at any time without a visa and the Tribunal acknowledges the evidence of a lengthy married relationship with Ms Deng. It accepts they would have would live apart for a lengthy period if the visa were not granted. However, Ms Deng could manage financially without him and would not be without emotional support while they lived apart. Importantly, it also found she did not support Mr Mahrous’ application for review on the day of hearing and was afraid of him. It inferred any continuing relationship is troubled and is not satisfied a lengthy separation would cause her significant emotional hardship or affect her mental health or capacity to control her alcohol intake. In addition, Mr Mahrous’ continued presence in Australia is not necessary for [Ms Deng’s son’s] psychological or developmental welfare and is unlikely to facilitate his return to Ms Deng’s care. Mr Mahrous could live with his family and manage financially if he returned to Egypt, his mental health would not suffer and he would not be at any particular risk of harm. These matters, his preference to remain in Australia after a lengthy period of residence and other matters raised at earlier hearings are not compelling reasons to waive the Schedule 3 criteria. That is the case whether considered on their own or together.

FCCA decision

29    Ultimately, the appellant raised the following two grounds of review:

The grounds of the amended application are as follows:

1.    The Tribunal erred by misdirecting itself as to the meaning of the term “compelling reasons” in cl 820.212(d)(ii) of Schedule 2 to the Migration Regulations 1994.

Particulars

The Tribunal “acknowledged” the evidence that the Applicant and his sponsor had a lengthy married relationship. However it failed to consider whether the length of the relationship could itself be a compelling reason for not applying the Schedule 3 criteria.

2.    Alternatively, if the Tribunal did consider whether the length of the relationship could itself be a compelling reason for not applying the Schedule 3 criteria and found that it did not, its finding was unreasonable in that it lacked an evident and intelligible justification.

30    At [6]-[18] of his Honour’s reasons, the FCCA judge summarised the reasons of the third Tribunal. At [8], his Honour noted that the Tribunal preferred the evidence of the sponsor over the appellant concerning her accommodation in her family home. At [10], his Honour noted that the Tribunal had accepted oral evidence given by the sponsor that she was afraid of the appellant and that he had threatened her.

31    The appellant did not disagree with any aspect of the FCCA judge’s summary. Rather, his submissions focussed on errors he contended were made by the Tribunal in its evaluation of the evidence and, in particular, in preferring his wife’s oral evidence over his own evidence.

First ground of review

32    The FCCA judge addressed the first ground of review at [20]-[24] of his Honour’s reasons.

33    At [21], his Honour concluded that there was “no basis to find that the Tribunal concluded that being in a longstanding relationship on its own is not sufficient to establish compelling reasons for waiver”.

34    At [24], his Honour observed that the Tribunal in fact gave separate consideration to whether the relationship could amount to a compelling reason in its own right, such doubt, as the FCCA judge recognised, evidenced by the Tribunal’s statement that none of the matters identified gave rise to compelling reasons, and that “this is the case whether considered on their own or together”.

35    Accordingly, the first ground of review was rejected.

Second ground of review

36    The FCCA judge addressed and rejected the second ground of review at [25]-[27] of his Honour’s reasons.

37    The FCCA judge concluded that the Tribunal’s finding “did not lack an evident and intelligible justification”, noting:

[26]    In particular, the Tribunal referred to the fact that the sponsor on the day of the hearing was afraid of the applicant. The Tribunal found that the relationship was troubled, and the Tribunal found that the lengthy separation would not cause the sponsor significant emotional hardship or affect her mental health or her capacity to control her alcohol intake. The Tribunal also took into account the impact of the absence of the applicant on the sponsor’s son. The Tribunal also took into account that the applicant could live with his family and could manage financially if he was returned to Egypt. The Tribunal took into account that the applicant’s mental health would not suffer and that the applicant would not be at any particular risk of harm. The Tribunal also took into account the applicant’s desire to remain in Australia after his lengthy period of residence, and expressly referred to other matters raised at earlier hearings not making out compelling reasons. The Tribunal specifically added that this was the case whether considered on their own or together.

[27]    The reasons summarised above cannot be said to lack an evident and intelligible justification. The reasons summarised above was logical and reasonable. There was no legal unreasonableness in the exercise of the discretion by the Tribunal in determining whether there are compelling reasons. No jurisdictional error as alleged in ground 2 of the amended application is made out.

Appeal to this Court

Appellant’s written submissions

38    The appellant filed written submissions which largely replicated written submissions made to the FCCA.

39    The appellant also added some additional paragraphs concerning the circumstances in which the appellant lodged his application for a partner visa.

40    The appellant also identified, as compelling reasons that justified the waiver of the criterion:

(1)    his wife’s diagnosis with a mental disorder;

(2)    the wife’s conception difficulties following a miscarriage; and

(3)    the significant psychological hardship the wife would suffer if the appellant was repatriated.

41    The appellant contended that the medical reports annexed to his submission contradicted the Tribunal’s findings at para 60 of its decision record set out above. The material attached to the appellant’s submission comprised an Emergency Department discharge summary dated 31 July 2018 recording that the appellant’s wife had suffered a miscarriage; a letter dated 16 March 2018 from the Head of Social Work at Blacktown Hospital recording that the wife had been discharged that day from Blacktown Hospital, having been admitted on 14 March 2018, and stating that the wife was homeless at that time; invoices from NSW Ambulance to the appellant’s wife issued on 22 March 2018 in relation to services provided on 14 March 2018; and a Centreline Medical Certificate apparently signed by the wife and her General Practitioner dated 5 November 2018.

42    Finally, the appellant contended that a further compelling reason was that he had close ties to the Australian community, having been in Australia since 7 August 2007, a period of more than 10 years. The appellant also referred to the “ten-year rule” contained in s 201 of the Migration Act 1958 (Cth), which concerns criminal deportation.

Appellant’s oral submissions

43    The appellant made lengthy oral submissions which may be summarised as follows:

(1)    The AAT did not consider whether the appellant’s longstanding relationship with his wife, on its own, was sufficient to amount to a compelling reason to waive the Sch 3 criterion.

(2)    The appellant’s wife’s mental health has deteriorated since the date of the AAT decision. She cannot work as a result of her mental illness. This provides a compelling reason to waive the Sch 3 criterion.

(3)    The AAT should not have preferred the appellant’s wife’s oral evidence over her written statement and his oral evidence to the contrary because:

(a)    The appellant’s wife is mentally ill.

(b)    The appellant’s wife is afraid of courts and tribunals, finding attendance highly stressful.

(c)    The appellant and his wife live together. In the appellant’s submission, it is nonsensical for a person to choose to live with someone who threatens them and of whom they are afraid.

(d)    The appellant did not coerce his wife into writing the statement recanting her oral evidence. The Tribunal should not have inferred that this may have been the case. Rather, the wife felt guilty and, of her own volition, wished to correct what she had said.

Consideration

First ground of appeal

44    The first ground is that the FCCA judge fell into legal error by not considering the grounds in the appellant’s judicial review application.

45    The Minister submitted that this contention is not correct, as the FCCA judge dealt with the two grounds of review that were raised before him. I agree with that submission. The manner in which the FCCA judge considered the grounds of review raised by the appellant is set out above.

46    Accordingly, this ground of appeal fails.

Second ground of appeal

47    The second ground is that the AAT fell into jurisdictional error by not considering the length of the parties’ period of cohabitation.

48    The Minister submitted that the AAT did address the issue of the parties’ cohabitation and, accordingly, there was no such jurisdictional error. I also agree with this submission. At para 12 of its decision record, the AAT noted the appellant’s evidence that he and the sponsor lived together from December 2012. There was a conflict between the evidence of the appellant and the sponsor as to the more recent position, which the Tribunal identified at paras 16 to 18 of its decision record as follows:

16.    Ms Deng has no income other than income support from Centrelink and he said she could not manage financially without him. In particular, he said she could not afford to live independently because of the cost of accommodation in Sydney and she could not live with her parents and siblings because their home is overcrowded and because of her conflict over their relationship with her siblings. However, Ms Deng said she has her own room in the family home and lives there a lot of the time. She said she has good relationships with her siblings, that her family generally supports her emotionally and that she would live with them all the time if Mr Mahrous went to Egypt.

17.    The Tribunal invited Mr Mahrous to comment on Ms Deng’s evidence. He said her evidence is incorrect and that Ms Deng does not have her own room because there are eight family members living in a three-bedroom home. He said she has complained about overcrowding and lack of privacy and that her siblings have asked her to live with him because it is overcrowded. He said that she does not have a good relationship with her siblings and that they argue constantly and do not like him because of his race and religion.

18.    The home might be overcrowded and she might not have as much privacy or space as at the home that she lives in with Mr Mahrous. However, the Tribunal prefers Ms Deng’s evidence that she is welcome in her family home, that she lives there for some of the time and that she would live with family if Mr Mahrous returns to Egypt (whether or not she has her own room). In that case, she would not suffer financial hardship as she would have accommodation and could meet her personal expenses from income support payments.

49    Thus, the decision record shows that the AAT identified the evidence about the extent of the appellants’ cohabitation with the sponsor, and found that the sponsor lived in her family home for some of the time.

50    The evidence did not require a finding that the parties cohabited for a particular period of time.

Other matters raised by the appellant

51    As noted at [43], the appellant argued that the AAT failed to consider whether compelling reasons existed for not applying the Sch 3 criterion solely by reference to the duration of his relationship with his wife. As appears from para 60 of the AAT’s decision record, set out at [28] above, the AAT acknowledged the evidence of a lengthy married relationship between the appellant and the sponsor. However, the AAT ultimately concluded that this was not a compelling reason to waive the Schedule 3 criteria, referring particularly to the sponsor’s lack of support for the appellant’s application and the AAT’s inference that the relationship is troubled.

52    The appellant raised issues concerning his wife’s situation since the AAT decision. Those matters necessarily could not be considered by the AAT and are not relevant to whether the AAT’s decision is affected by jurisdictional error or the FCCA’s decision is affected by appellable error.

53    Finally, the appellant argued that the AAT was wrong to accept his wife’s evidence and to prefer her evidence over his evidence, because of her mental illness and her fragility. However, the AAT’s role was to evaluate the evidence and to make its findings based on that evaluation. The matters raised by the appellant do not reveal any jurisdictional error by the Tribunal in its evaluation of the evidence. In particular, the AAT was not required to discount or reject the wife’s oral evidence on the bases suggested by the appellant. There is no reason to think that the Tribunal was not entitled to accept that she was a credible witness in relation to the matters about which her oral evidence was accepted.

Conclusion

54    The appellant has not demonstrated any jurisdictional error by the AAT or appellable error by the FCCA judge. Accordingly, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    29 November 2018