FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

3.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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 (Mr Ali) appeals from the decision of a judge of the Federal Circuit Court of Australia (FCCA): Ali v Minister for Immigration & Anor [2018] FCCA 3025. By that decision, the FCCA judge dismissed Mr Ali’s application for judicial review of a decision of the second respondent (AAT), affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant Mr Ali a Partner (Temporary) (Class UK) (subclass 820) visa (partner visa).

2    Mr Ali did not file written submissions in support of his appeal, but made oral submissions at the hearing of the appeal with the assistance of an Arabic interpreter.

Background

3    Mr Ali, a citizen of Egypt, first arrived in Australia on 11 May 2007 as the holder of a subclass TU572 visa. He was subsequently granted two subclass TU572 visas, with the second of those visas ceasing on 16 March 2014. The appellant then applied for a further subclass TU572 visa and a protection visa on 3 April 2014 and 23 September (or December) 2014 respectively. Both applications were refused.

4    On 19 October 2014, Mr Ali applied for a Partner visa based on his relationship with his sponsor (Mrs Ali or wife). Mr and Mrs Ali met in mid-2012 and married in October 2014.

5    By cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), Mr Ali was required to satisfy criteria 3001, 3003 and 3004 in Sch 3 to the Regulations, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days after the last day he held a substantive visa. As Mr Ali’s application was not lodged in time, a relevant consideration was whether there were compelling reasons for not applying criterion 3001 in Mr Ali’s case.

6    Mr Ali’s migration agent made the following submissions to the Department that there were compelling reasons why “Schedule 3 would be waived”:

(1)    Mrs Ali and her son were highly dependent on the appellant in all aspects of their life, as Mrs Ali had lost her driver’s licence;

(2)    Mrs Ali was the victim of domestic violence from her ex-partner;

(3)    Mr Ali shared responsibility for looking after Mrs Ali’s child and provided emotional and psychological support to Mrs Ali; and

(4)    Egypt was experiencing acts of terrorism and that would create more mental health problems for Mrs Ali and her child if Mr Ali went overseas to lodge his application offshore.

7    The delegate refused Mr Ali’s application for a partner visa on 4 February 2016.

8    Mr Ali applied to the Tribunal for a review of the delegate’s decision on 8 February 2016.

9    On 25 November 2016, the Tribunal wrote to Mr Ali, inviting him to attend a hearing before the Tribunal on 24 January 2017. The letter requested that Mr Ali provide any additional relevant material regarding compelling reasons for not complying with the timeframe requirements in Sch 3 by 17 January 2017.

10    In response, Mr Ali provided a submission by way of his migration agent on 6 January 2017 and submitted several documents going to the genuineness of the relationship between the appellant and his wife. In summary, the appellant’s migration agent submitted that Mrs Ali and her son were heavily dependent on Mr Ali for their day to day activities and that it would be in the best interests of the child to remain with Mr and Mrs Ali.

11    The Tribunal conducted a hearing on 30 January 2017. Mr Ali was represented at the hearing by a migration agent.

Tribunal decision

12    The Tribunal affirmed the decision not to grant a partner visa to Mr Ali on 31 January 2017.

13    The Tribunal accepted at face value the claims made by the parties that they were, and they continued to be, in a genuine relationship and the circumstances of that claimed relationship for the purposes of its decision. However, the Tribunal noted that Mr Ali did not satisfy criterion 3001 of Sch 3 as his visa application was not made within 28 days of the date that his last substantive visa ceased. Accordingly, the Tribunal noted, it was required to consider whether there were compelling reasons for not applying the Sch 3 criteria.

14    The Tribunal was not satisfied that there were compelling reasons for not applying the Sch 3 criteria. The Tribunal summarised the claims of compelling reasons as “centred around the need for the applicant to be present in the lives of his wife and her son because his wife does not have a driver’s licence, and because for that and other reasons - which have been considered and discussed in this decision - she and her son are heavily dependent on him”.

FCCA Proceeding

15    By an application to show cause filed in the FCCA on 28 February 2017 the appellant sought judicial review of the Tribunal’s decision and raised the following four grounds:

1.    At Points 32-34 the MRT notes evidence from me, my wife, a psychology report and written submission[s] about the emotional, psychological, mental and social development of my wife’s son. The MRT did not further investigate these issues nor did it discuss these issues in the Decision record.

2.    At point 33 the MRT concluded that the father of my wife’s son “is involved in his life and sees him regularly”. The MRT did not attempt to question or find out how or to what extent there was involvement. Evidence given was that the father sees the son once a month and occasionally more. The MRT did not clarify how it made the finding that this was regular conduct.

3.    At point 31 and 34 the MRT notes and accepts that domestic violence had previously occurred and had an adverse effect on my wife and her son. The MRT did not question or take into consideration what effect and to what extent does the previous domestic violence remain to have on the wellbeing of my wife and her son.

4.    The dangerous situation in Egypt was addressed in the psychologist report and our oral evidence. The MRT did not attempt to ask for details of the basis for our fear. At point 35-36 the MRT simply assumed that I would have family support without considering [the] basis of feared danger or if I would still have family support at this time.

First ground of review: failure to investigate and address issues concerning Mrs Ali’s son

16    The FCCA judge rejected this ground of review for the following reasons (at [11] and [12]):

[11]    The Tribunal expressly referred to and considered the psychological, mental, emotional and social development of the sponsor’s son: [25], [26], [27], [31]-[34] and [40]. The Tribunal made detailed enquiries of the applicant and his sponsor with respect to the sponsor’s son and their day to day lives. There was no documentary evidence before the Tribunal that the sponsor’s son had any special needs or requirements or had been “identified or diagnosed by a healthcare professional”: [33]. It was open to the Tribunal on the evidence before it to form the conclusion that it did. While there is no general duty to exercise its power to obtain further information, it may be accepted that, like any discretionary power, there may be circumstances in which a failure to exercise that power may infect the Tribunal’s decision with jurisdictional error; for instance, when there is a failure to adjourn a review to allow an applicant to obtain critical and readily available information.

[12]    Here, there is nothing to indicate that it was not within the scope of the Tribunal’s decisional freedom to decide what powers it would or would not exercise to obtain further information concerning the sponsor’s son. First, it is not clear just what information that might be. As a corollary of that, it is not possible to say that any further information was available, let alone readily available. Secondly, the applicant had put forward material to support his claims and made submissions. It was a matter for the Tribunal then to assess whether the circumstances detailed in that information amounted to compelling reasons. In those circumstances, in the context of the Tribunal’s statutory functions, the Tribunal’s failure to “investigate further” was entirely justifiable. The first ground is rejected.

Second ground of review: findings concerning role of biological father of Mrs Ali’s son

17    The FCCA judge gave the following reasons for rejecting this ground:

[14]    As noted in this ground, the evidence before the Tribunal was that the sponsor’s son saw his father once a month and occasionally more often. The Tribunal construed that as “regular” contact. It was open to the Tribunal to describe the visits as “regular”: the length of the period between events does not affect the predictability of their recurrence. Further, given that the finding that there was regular contact was based on the evidence before it, there was no legal unreasonableness involved in that finding. The second ground is rejected.

Third ground of review: failure to give consideration to historical domestic violence

18    The FCCA judge gave the following reasons (at [16] and [17]) for rejecting this ground:

[16]    The sponsor gave oral evidence at the hearing about the domestic violence she had suffered in a previous relationship and the impact that this had had on her son. Indeed, her evidence was that her son had seen some horrible things, was angry for a long time but “is now much happier”.

[17]    The applicant asserts in this ground that the Tribunal made reference to the domestic violence suffered by the sponsor at [34] of its reasons. That is not correct. The Tribunal accepted the applicant’s and his sponsor’s evidence that they sought the assistance of a psychologist for stress and anxiety “in relation to the processing of the parties’ partner visa application”. There was no evidence before the Tribunal that these visits, or any subsequent treatment, were related to the domestic violence suffered by the sponsor. The Tribunal did in fact give consideration to the issue of domestic violence but did not find it a compelling reason to waive the criteria. This ground is rejected.

Fourth ground of review: situation in Egypt

19    The FCCA judge gave the following reasons (at [19] and [20]) for rejecting this ground:

[19]    The situation in Egypt was raised in submissions by the applicant’s agent. These submissions were that “at the time of application, Egypt was and still experiencing acts of terrorism and that would create more mental health problems for her and her son if her husband went overseas to lodge his application offshore”. The Tribunal found that there was psychological help available to the sponsor to manage any personal issues arising from any temporary separation (at [34]) and, having noted that the applicant had travelled back to Egypt on a number of occasions since 2012, found that the applicant could access “family support from his mother and brother and would have somewhere to live”: [36].

[20]    The Tribunal dealt with the claim concerning Egypt in the way it was put by the applicant and was required to do no more. Further, contrary to the applicant’s submission, it based its finding about the availability of family support on the evidence before it, namely, the fact that that support had been available every other time the applicant had returned to Egypt since 2012. This ground is rejected.

Appeal

20    By his notice of appeal, the appellant raises the following grounds:

(1)    Both the Tribunal and the FCCA judge “failed to accept compelling reasons for not applying the criteria”.

(2)    The Tribunal and the FCCA judge “failed to accept the emotional and financial support for the sponsor and her child as being compelling”.

(3)    Both the Tribunal and the FCCA judge “failed to accept that the psychological, mental, emotional and social development of the sponsor’s son amount to compelling circumstances”.

(4)    “[T]he Tribunal accepted that the sponsor was subject to domestic violence yet the Tribunal failed to act on it”.

(5)    “The Tribunal failed to take into consideration that a long term relationship should amount to compelling reasons and such was not acted upon” by either the Tribunal or the FCCA judge.

21    Essentially, Mr Ali’s case is that the Tribunal should have accepted his case that there are very compelling reasons for not applying the Sch 3 criteria in his circumstances. In his oral submissions, Mr Ali reiterated his view that the reasons that he has given are very compelling. Those reasons are the many difficulties that his wife has faced before her relationship with Mr Ali and his fathership role in relation to his step-son. Mr Ali also referred to medical reports that he had submitted which, Mr Ali said, showed that his wife will be disadvantaged and suffer greatly if he is required to leave Australia for the time required to obtain another visa. Mr Ali explained that he and his wife could not be separated, but that he would not take her to Egypt because the security and economic situation in that country is so difficult. Mr Ali stated that the Tribunal did not take this last matter into consideration. Mr Ali asked rhetorically, if his reasons are not compelling, what reasons are compelling?

22    Mr Ali also submitted that the Tribunal treated the matter of the separation of his family as if it is a minor thing. He also submitted that the existence of the genuine relationship between him and his wife by itself is a compelling reason.

Consideration

23    The question for this court is whether the FCCA judge made an appellable error in dismissing Mr Ali’s application to the FCCA for review of the Tribunal’s decision.

24    In order to find “compelling reasons”, the Tribunal was required to identify reasons that would “force or drive” it to decide that the Sch 3 criteria should not apply to Mr Ali: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64/2015) at [31] (French CJ, Bell, Keane and Gordon JJ) and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [21]. Furthermore, as Gageler J put it in Plaintiff M64/2015 at [64] (citations omitted):

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

25    The reasons given by Mr Ali were ones that the Tribunal might have accepted as compelling reasons, particularly the interests of Mr Ali’s step-son. However, the Tribunal was not required by law to reach that conclusion. It was a matter for the Tribunal to decide for itself whether it considered that the reasons were “compelling”.

26    Grounds 1 to 3 of the notice of appeal accurately describe the Tribunal’s reasoning but do not identify any legal error in that reasoning. Similarly, there was no legal error in the FCCA judge’s analysis of Mr Ali’s grounds of review set out above.

27    As to ground 4, Mr Ali’s complaint is that the Tribunal failed to act on its finding that Mrs Ali had suffered domestic violence in a previous relationship. A fair reading of the Tribunal’s reasons is that the Tribunal identified that, for several reasons, Mrs Ali and her son are “heavily dependent” upon Mr Ali. The Tribunal was not satisfied that this dependence provided the requisite “compelling reasons”. Reasonable minds may differ about whether the Tribunal should have reached a different conclusion but the Tribunal was not legally obliged to find that there were “compelling reasons” either because Mrs Ali had suffered domestic violence, or because she and her son are “heavily dependent” upon Mr Ali. However, the Tribunal’s reasons do not suggest that it failed to consider the issue of domestic violence or otherwise committed a legal error in addressing the issue of the sponsor’s experience of domestic violence.

28    Ground 5 is based on a false premise. Although the length of a relationship with the sponsor may amount to “compelling reasons”, it was a matter for the Tribunal whether that matter constituted, either alone or with other matters, “compelling reasons” in this case. In any event, the Tribunal identified the matters that were said by Mr Ali to be compelling at para 25 of its decision record. They did not include the duration of Mr Ali’s relationship with his wife. The Tribunal did record the relevant facts concerning the duration of the relationship. In these circumstances, ground 5 does not identify any legal error on the part of the Tribunal.

29    Mr Ali’s oral submissions were concerned principally with whether he has “compelling reasons”. The submissions demonstrated that the Tribunal could have made a decision in his favour but not that it was legally required to make a decision in his favour, or that it or the FCCA judge made any legal error in addressing Mr Ali’s case.

30    In relation to the submission that the Tribunal did not take into consideration issues arising out of the security and economic situation in Egypt, taken together with Mr Ali’s inability to be separated from his wife, this is correct. The Tribunal addressed issues related to the “need for the applicant to be present in the lives of his wife and her son”, but not any reason based on a proposition that anyone apart from Mr Ali would travel to Egypt. The Tribunal made findings concerning Mr Ali’s travel to Egypt and his ability to access family support and accommodation in Egypt. The Tribunal noted that Mr Ali did not claim that he would be unable to find work in Egypt.

31    I have reviewed the transcript of the Tribunal hearing. From that transcript, it does not appear that Mr Ali identified the security and economic situation in Egypt as part of the “compelling reasons” for not applying the Sch 3 criteria at the Tribunal hearing. Nor was the issue raised in Mr Ali’s 6 January 2017 submission. In her evidence to the Tribunal, when asked whether she thought about going to Egypt with Mr Ali in late 2014, Mrs Ali replied:

He didn’t ask me to go but I didn’t really want to go anyway. I just heard it’s not, like, the best area and, like, it sounds dangerous. I didn’t want to take my son over there.

32    For his part, Mr Ali’s evidence was that Mrs Ali had refused to go to Egypt, saying that the situation in Egypt was not safe.

33    I am not satisfied that the issue raised by Mr Ali on the appeal concerning the security and economic situation in Egypt was raised by him in front of the Tribunal. Mr Ali did not suggest to the Tribunal that there were “compelling reasons” arising out of the risks of living in Egypt, whether by himself or with Mrs Ali and her son. Accordingly, I am satisfied that this submission does not reveal any legal error on the part of the Tribunal.

Conclusion

34    Mr Ali has not identified any appellable error on the part of the FCCA judge.

35    Accordingly, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    1 August 2019