Alrjoob v Minister for Home Affairs [2018] FCA 1144

FEDERAL COURT OF AUSTRALIA

Alrjoob v Minister for Home Affairs [2018] FCA 1144 Appeal from: Alrjoob v Minister for Immigration & Anor [2018] FCCA 1158

File number: NSD 631 of 2018

Judge: COLLIER J

Date of judgment: 3 August 2018

Catchwords: MIGRATION – application for Partner (Temporary) (Class UK) visa – Tribunal found appellant did not satisfy criteria in criteria 3001(1) of the Migration Regulations 1994 (Cth) – no "compelling reasons" as to why criteria should not apply – political situation in Jordan – grounds of appeal identified no error in decision of primary Judge – appeal dismissed

Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 79(3) Migration Regulations 1994 (Cth) cll 820.211(2)(d), 3001(1), 3001(2) Sch 3

Cases cited: Alrjoob v Minister for Immigration [2018] FCCA 1158 Fair Work Ombudsman v Priority Matters Pty Ltd (No 3) [2016] FCCA 2744 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121

Date of hearing: 3 August 2018

nRegistry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 23

Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms A Lucchese of Sparke Helmore

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS NSD 631 of 2018

BETWEEN: MO'TASEM ABDULSALAM JARWAN ALRJOOB Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: COLLIER J DATE OF ORDER: 3 AUGUST 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

Introduction 1 This is an appeal from a judgment of the Federal Circuit Court in Alrjoob v Minister for Immigration [2018] FCCA 1158 delivered on 10 April 2018 to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (the Minister) to refuse to grant the appellant a Partner (Temporary) (Class UK) visa.

Background 2 The appellant is a citizen of Jordan who arrived in Australia on 9 November 2012. At that time, the appellant held a Student (Subclass 572) visa. The appellant's student visa was cancelled on 29 April 2014 and, on 28 May 2014, the appellant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The appellant did so on the basis of his marriage to Ms Cassandra Vidler, his sponsor. 3 Those applications were refused by a delegate of the Minister on 10 November 2014. The appellant first applied to the Tribunal for review of the decision in relation the Partner (Temporary) (Class UK) visa on 25 November 2014, and the Tribunal affirmed the decision not to grant the visa on 27 January 2016. The appellant successfully sought judicial review of the Tribunal's decision of 27 January 2016, on the basis of the decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121, and the matter was remitted to Tribunal for reconsideration.

Tribunal decision 4 Following a hearing of the remitted matter by a differently-constituted Tribunal on 11 January 2017, the Tribunal affirmed the decision not to grant the appellant a Partner (Temporary) (Class UK) visa on 16 January 2017. The Tribunal found that the appellant did not satisfy the criteria in Sch 3 of the Migration Regulations 1994 (Cth) (the Regulations, and specifically the Sch 3 criteria), particularly criterion 3001(1), because he had failed to apply for the partner visa within 28 days of the "relevant day", as defined in criterion 3001(2). The Tribunal, therefore, was required to consider whether there were "compelling reasons" as to why the Sch 3 criteria should not apply in the appellant's case: see cl 820.211(2)(d) of the Regulations. The appellant argued before the Tribunal there were compelling reasons in his case, being: His sponsor suffered from mixed anxiety and depression, which was supported by medical evidence from Dr Medhat Metry. His sponsor would suffer hardship because she could not return to Jordan with the appellant because life would be unsafe because of the Syrian conflict and the influx of Syrian refugees. This would put strain on the appellant's relationship with his sponsor. It was also was not safe for the appellant to return to Jordan. The refusal of the appellant's visa application had contributed materially to the subsequent breakdown of his relationship. 5 However, the Tribunal concluded that there were no compelling reasons to depart from the Sch 3 criteria. In summary, this was because: The appellant and his sponsor had separated 12 to 18 months prior to the remitted hearing in the Tribunal. The appellant and his sponsor were no longer committed to each other at the Tribunal hearing and the appellant indicated that he was in the process of filing for divorce. The appellant and his sponsor no longer lived together, so the appellant was not supporting his sponsor, either financially or emotionally. The appellant agreed with this at the hearing. There was no indication that the appellant would suffer additional stress as a result of the separation if the appellant returned to Jordan, for what may be a lengthy period, to apply for a visa, as the relationship had already ended. Accordingly, there would also be no additional stress on the relationship as a result of the appellant going offshore to lodge a visa application. Although the Tribunal accepted that the stress of the refusal of the appellant's visa may have been a major factor in the breakdown of the relationship, including the resultant financial stress as a result of the appellant being unable to work, the Tribunal did not consider that this constituted a compelling reason. The appellant's safety in Jordan was not a compelling reason in circumstances where the appellant's parents and siblings were all resident in Jordan. 6 The Tribunal concluded: 35. The Tribunal finds that although the applicant and his wife are still legally married to each other they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The relationship between them is not genuine and continuing and they do not live together but live separately and apart on a permanent basis. There are no children of the relationship. There is no allegation of family violence. The applicant does not satisfy the provisions of s.5F of the Act. Accordingly, the Tribunal finds the applicant is not the spouse of the sponsor in this application. 7 The Tribunal therefore affirmed the decision not to grant the appellant a Partner (Temporary) (Class UK) visa.

Proceedings in the Federal Circuit Court 8 The appellant sought judicial review of the Tribunal's decision on the following grounds: 1. On 30 June 2016 the Federal Circuit Court of Australia ordered that the matter be reconsidered for the reasons set out in Waensila. 2. At the time of the application my wife and I had compelling circumstances and the Tribunal in this decision erred in law and failed to take into consideration the compelling circumstances which existed at the time of the application. 3. The Department and the Tribunal are responsible for the psychological situation of my wife suffered anxiety and depression as a result of the refusal. 9 The primary Judge noted that the statement in ground 1 was technically correct; however, his Honour stated that this was simply a statement of fact and established no error on the part of the Tribunal in reconsidering the remitted matter. 10 As to ground 2, the primary Judge found that the appellant was effectively seeking merits review of the Tribunal's decision in relation to whether his wife's mental illness constituted "compelling reasons" for the purposes of cl 820.211(2)(d) of the Regulations. Accordingly, ground 2 also did not establish jurisdictional error by the Tribunal. 11 Finally, in relation to ground 3, the primary Judge stated that there was no evidence to support the appellant's assertions and, even if there were such evidence, the primary Judge would not be required to make conclusive findings on those factual assertions because, even if correct, the assertions would make no difference to the task of the Tribunal. 12 The primary Judge therefore dismissed the application for review as the findings of the Tribunal were open to it and no jurisdictional error on the part of the Tribunal had been established.

The appeal 13 The appellant seeks that the Orders of the primary Judge of 10 April 2018 be set aside and has included the following grounds of appeal in his notice of appeal: 1. I appeared before His Honour Judge Smith on 10 April 2018. His Honour dismissed my case and I have not yet received the judgment. 2. I received the Order by mail but yet no reasons have been given. 3. His Honour ordered me to pay $7,206.00 and I attach copy of the letter and the Order.

Consideration 14 The appellant has not filed written submissions. 15 At the hearing the appellant appeared in person, with an interpreter. In summary, he submitted: His situation is very difficult. He has remarried, and has a daughter with his new wife. He cannot return to Jordan in view of the volatile political environment in the Middle East. His wife and daughter could not accompany him to Jordan, and he has no assets or way to support himself in Jordan. Costs were awarded against him in the Federal Circuit Court proceedings, and he needs to work in order to pay those costs 16 The Minister submitted that the appellant has failed to identify any appellable error on the part of the primary Judge in the notice of appeal. This is clearly so. 17 I note that, in Waensila, the Full Court gave consideration to the correct construction of provisions relating to Partner (Temporary) (Class UK) visas. The Court found, inter alia, that cl 820.211 of the Regulations requires that, where applicable, criteria 3001, 3002 and 3003 must be satisfied as at the time of application, and that the Minister's power to dispense with the application of those criteria or the time at which that power may be exercised is designed to provide flexibility in the operation of the legislative and regulatory scheme. Further, the Court found that the Minister could have regard to "compelling reasons" which related to events or circumstances which occurred after the partner visa application was made. 18 The appellant has not explained how, if at all, the principles articulated by the Court in Waensila apply in this case. 19 As to the appellant's claims that he did not receive the reasons for decision of the primary Judge, it is relevant that the judgment of the Federal Circuit Court was delivered ex tempore following the hearing of the matter on 10 April 2018. The appellant appeared as a litigant in person at the hearing with the assistance of an interpreter. Accordingly, the appellant was aware of the primary Judge's reasons for dismissing his application for judicial review. Further, the Minister noted that the primary Judge's reasons were certified and made available on the Commonwealth Courts Portal on 14 May 2018. 20 In relation to ground of appeal three, in the ordinary course costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. Section 79(3) of the Federal Circuit Court of Australia Act 1999 (Cth) provides that, except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge. As was observed by Judge Street in Fair Work Ombudsman v Priority Matters Pty Ltd (No 3) [2016] FCCA 2744: 63. The almost invariable practice in this Court is to fix costs. One of the duties the Court has under s.14 of the Federal Circuit Court of Australia Act 1999 is to bring the controversies between the parties to a complete and final determination. 21 Although the primary Judge in this case did not provide reasons why the costs were fixed in the amount of $7,206, an order fixing costs against the appellant in this case by the Federal Circuit Court was in accordance with the orthodox approach to such matters. 22 In respect of the issues raised by the appellant at the hearing, as the Minister's representative stated the Court is not empowered to grant the appellant a visa. The circumstances in Jordan described by the appellant relate to the facts of the case, including whether there were compelling reasons to which the Minister could have regard, and to that extent go to the merits of the case. In any event, I also note that the Tribunal considered this issue, as follows: 26. The applicant told the Tribunal he did not want to return to Jordan because it was not a safe place particularly since a number of Syrian refugees have moved there. The Tribunal notes that the Australian Government Travellers Advice website suggests people exercise a high degree of caution in travelling to Jordan. However, the Tribunal notes the applicant's parents and a number of his siblings are all residents in Jordan. The Tribunal is not satisfied that the safety risks in Jordan are a compelling reasons for not applying the Schedule 3 criteria. No error is disclosed in this statement of the Tribunal. 23 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 3 August 2018