Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-02-13|Before: Griffiths J

The appeal be dismissed.
The appellant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This appeal is from a judgment dated 19 September 2019 of the Federal Circuit Court of Australia (FCCA). The reasons for judgment are reported as Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2664. The FCCA dismissed the appellant's application for judicial review of a decision dated 28 June 2018 of the Administrative Appeals Tribunal (AAT), which affirmed the delegate's decision to refuse to grant the appellant a Partner (Temporary (Class UK)) (the partner visa). A central issue was whether there were compelling circumstances so as to waive the relevant requirement in Public Interest Criteria 3001 (PIC 3001). 2 For the reasons which follow, the appeal will be dismissed, with costs.

The FCCA proceeding 11 Below, the appellant raised a single ground of judicial review, namely that the AAT failed to consider the sponsor's claim that communication with the appellant in Egypt would be difficult and unreliable because of the time difference and restrictions on telecommunications. 12 This ground was rejected by the FCCA on the basis that it had been considered by the AAT when it addressed the appellant's lengthy submission dated 4 May 2018. The FCCA also pointed to [51] of the AAT's reasons for decision as indicating that the AAT had addressed the matter. The primary judge considered that the AAT found that, on balance, the appellant and the sponsor would be able to maintain effective communication despite their physical separation. The primary judge emphasised the detailed nature of the AAT's reasons and did not accept that, in those circumstances, an inference should be drawn that the AAT "failed to deal with one small aspect of the overall claim when considering the evidence" (at [44]). The primary judge placed particular emphasis on the AAT's explicit statement in [51] of its reasons for decision concerning the sponsor's capacity to maintain regular contact through modern communication tools. Earlier in his reasons for judgment at [36], the primary judge also mentioned that [51] started off with an explicit statement that the AAT "has very carefully considered the evidence concerning the sponsor's health and wellbeing".

Amended notice of appeal 13 The Minister did not oppose leave being granted for the appellant to rely upon an amended notice of appeal. 14 The sole ground of appeal is that the FCCA "erred in finding that the Tribunal had addressed the case that the appellant was making that the sponsor's physical and mental ill health would be aggravated by the logistical difficulties of keeping in contact with him in Egypt".

Appellant's submissions summarised 15 The appellant emphasised that, in her letter dated 4 May 2018 [1156], the sponsor said: We are fortunate in Australia to be able to converse and communicate whenever we can around our work schedules. We both cope better in our relationship knowing the other is only a phone call or message away and both can travel at relatively short notice and expense in case of emergency. The geographical location of Egypt, its proximity to Australia and eight hour timeframe difference will create additional pressure, have greater emotional impact and financial restraints should either of us be required to be with the other in case of emergency, or even communicate with the other as telecommunications restrictions in Egypt are evident on a regular basis and have been confirmed through social media posts, articles and reports such as https://freedomhouse.org/reportjfreedom-net/2017/egypt. I have witnessed firsthand the time we must be awake until to speak with someone on the other side of the world including my husband on many occasions not being able to get through and speak with his mother which has caused a great deal of frustration and anxiety. For a semi-professional, after an 8 hour day, meeting family requirements, studying, and trying to stay awake to call Egypt to speak with my husband and still be a productive and successful individual at work will result in much greater burnout than where I am at now. With everything we have been going through, my stress levels increased and I became despondent even when my husband was only working 1.5hours away. To think about a destination that is over 18 hours away is only going to result in increased pressure on my mental, physical health and well-being even further. My obesity condition is still in the "Overweight II - Severely Obese" category, the effect of all of the above will only exacerbate my existing emotional eating issues and may result in more health complications. 16 The appellant submitted that, although the sponsor had been able to cope with separation from the appellant in the past (but with cost to her mental health as explained in Ms Bennett's report) this letter explains that should the appellant have to return to Egypt the position was very different. There is nothing in the reasoning of the AAT to indicate that it took into account the matters that the sponsor raised in this part of her letter, so submitted the appellant. 17 The appellant submitted that the case that he was advancing was not just that the physical separation would aggravate the sponsor's conditions, but also that the logistics of the sponsor keeping in touch with him in Egypt would aggravate her physical and mental ill health. He claimed that the AAT did not deal with the whole of this case. It only dealt with the part of the case that the physical separation itself of the appellant from the sponsor would aggravate her physical and mental ill health and in that context it was satisfied that regular contact through modern communication tools could mitigate this issue. 18 The appellant submitted that the AAT clearly accepted that the past separations had caused the sponsor hardship but that she had been able to endure these hardships because of her stoic nature. Nevertheless she had also been assessed as suffering extremely severe depression and stress as well as severe anxiety. Her stoicism had come at a cost. In these circumstances the additional difficulties the sponsor was identifying in her 4 May 2018 letter may have had a decisive consequence on her ability to cope or at least have caused her a degree of distress which was of a different magnitude to what she had suffered previously. The appellant submitted that, given the AAT's apparent acceptance of the sponsor as a credible witness, these issues were of such significance that it would be expected that the AAT would have referred to them in its reasons if in fact it had taken them into account. 19 While the AAT refers to the 4 May 2018 letter, the appellant submitted that this is not a complete answer to his case. The situation was said to be analogous to that in two recent decisions of this Court. Both cases concerned criteria dependent on demonstration of compelling circumstances. In each case medical reports were submitted and the decision maker made extensive reference to the reports. However in both cases the Court found that the decision maker had not in fact appreciated the case being made. 20 In Karan v Minister for Immigration and Border Protection [2017] FCA 872 the appellant had provided a psychologist's report that recorded that his wife had mental health conditions which would be aggravated if he were not present to provide support. The delegate referred to this report but considered that the anxiety caused by separation was not a compelling circumstance. At [30]-[31], Siopis J said: 30. In other words, the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation. The case was a different case, namely, that his wife was a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues. 31. Although the reasons given by the delegate refer to the psychologist's report, the delegate does not address the issue in its reasons. In fact, it is apparent the delegate did not appreciate the nature of the case being made because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from "a loved one". 21 ln Farhat v Minister for Immigration and Border Protection [2018] FCA 93; (2018) 159 ALD 272 the appellant had put forward medical reports to the effect that his wife had been suffering a mental health condition for some time and that he was her primary carer. The delegate referred to the medical evidence and observed that while it was accepted that the sponsor experiences feelings of anxiety and stress which, at times, affects her ability to maintain self-care, the delegate was not satisfied that this represented compelling circumstances. However, Kenny J found that this was not the whole of the case the appellant was making in respect of him being his wife's carer. At [34] Kenny J said: When considered as a whole, however, it does not seem to me that the delegate appreciated the nature of the appellant's case and addressed the case the appellant sought to make. This is reflected at key points of the delegate's reasons. 22 Although the appellant acknowledged in this appeal that the primary judge referred to both these cases, he submitted that the primary judge's reasons demonstrate that he did not discern how the appellant was seeking to deploy that reasoning in this case. The appellant submitted that his Honour's reasoning at [42] simply recites, as being an answer to the appellant's case, the very passage from the AAT decision which the appellant says addresses a different case to the one being put forward by the appellant. The appellant submitted that this involved error.

Minister's submissions summarised 23 The Minister did not oppose the appellant relying on the amended notice of appeal, the sole ground of which is that the FCCA erred in finding that the AAT addressed the case that the appellant had made, with particular reference to the sponsor's physical and mental health issues being aggravated by the logistical difficulties of her staying in contact with the appellant if he were returned to Egypt. 24 The Minister submitted that, for the following reasons, on a fair reading of the AAT's reasons, the primary judge did not err in the manner alleged. 25 First, he submitted that it is well settled that non-reference to particular evidence, or to a particular part of the evidence, does not necessarily mean that the AAT failed to take it into account. A decision maker is not required to refer to every aspect of the evidence that is before it. Although a lack of consideration may be inferred from a decision maker not expressly dealing with an issue in its reasons, such an inference will "not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point" (citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] per French, Sackville and Hely JJ). 26 The logistical difficulties relied upon by the appellant were raised in a submission to the AAT dated 4 May 2018. The Minister submitted that the AAT's reasoning demonstrates that it engaged in some detail with the 4 May 2018 letter including, for example, the contended limitations upon the sponsor's ability to travel (at [46] of the AAT's decision), the impact of separation upon the sponsor's daughter (at [52]) and the impact upon the appellant's family (at [53]-[54]). The Minister submitted that other than the limited part of the 4 May 2018 letter dealing with communication difficulties, the appellant does not contend that there is any other part of the 4 May 2018 letter that the AAT failed to consider. 27 The Minister contended that the AAT's reasoning, on a fair reading, indicates engagement with this part of the submission as well as the related evidence that was before it. 28 The Minister contended that, at [49], the AAT engaged with the report of Ms Margaret Bennett. The AAT observed that Ms Bennett's report indicated that the sponsor suffered from extremely severe depression, severe anxiety and extremely severe stress. The AAT had regard to Ms Bennett's opinion that the impact on the sponsor would be "devastating" should the [appellant] depart Australia. At [50], the AAT accepted that the sponsor suffered from multiple health problems and that the appellant provided support in relation to those conditions. 29 At [51], the AAT emphasised that it had "very carefully considered the evidence concerning the sponsor's health and wellbeing". The part of the 4 May 2018 letter that the AAT is said to have failed to have considered appeared immediately under the heading relevant to this: i.e. "6. Health and Mental aspect". It is unlikely that the AAT, having engaged with various details in the balance of the 4 May 2018 letter, would have overlooked or misunderstood the very part of the submission that it described as having been "very" carefully considered. 30 The Minister submitted that the balance of the AAT's reasoning confirms that it did not do so. At [51], the AAT accepted that it would be "quite challenging for the sponsor to be separated from the appellant if he returns to Egypt given her health and other wellbeing concerns". However, the AAT considered that "on balance" the couple would be able to maintain regular contact through modern communication tools. 31 The Minister contended that the "concerns" the AAT was referring to in this paragraph were the concerns raised in the submissions provided by the appellant and the sponsor. The qualification expressed in the words "on balance" indicates that the AAT was cognisant that international communication may not be entirely free of difficulty but found that it would nonetheless be possible. The acceptance that the separation would be "quite challenging" for the sponsor within the context of the above considered issues indicates that the AAT understood the case that was being made. It is apparent that the AAT accepted that international separation, and all it entailed, would adversely affect the sponsor and her health conditions. Ultimately, however, the AAT was not satisfied that those "health and wellbeing matters pertaining to the sponsor" were "of the gravity to be sufficiently powerful to lead it to make a positive finding that there [were] compelling reasons for not applying the Schedule 3 criteria": [51].

Consideration and determination 32 For the following reasons, I do not consider that any appealable error has been established in respect of the primary judge's judgment or orders. 33 First, where there is a complaint that the decision maker has failed to deal with an aspect of the case which has been presented by an applicant, it is necessary to pay close regard to the individual facts and circumstances of the case at hand. For that reason, other cases such as Karan and Farhat need to be viewed in the context of the particular facts and circumstances which arose there. In my view, little is to be gained by adopting what is effectively a tick the box approach by reference to matters which were viewed as important in other cases and determining whether or not those same factors exist here. The primary focus must be on the individual facts and circumstances of the case at hand, guided of course by the general principles identified in cases such as Karan and Farhat. 34 To illustrate the point, it is appropriate to say something briefly about both of those cases. In Karan, Siopis J described at [29] that at the "forefront" of the appellant's claim that there were compelling circumstances sufficient to warrant waiving the relevant criterion, was a claim that the appellant's wife had been subjected to domestic violence during her previous marriage. This left her with "severe mental health issues", for which she had been receiving counselling. It was claimed that, by reason of this pre-existing condition and the wife's serious mental health condition, she would suffer if the appellant was not present to continue to provide her with a stabilising influence, particularly because she was about to give birth. 35 At [30], the primary judge stated that the appellant's claim was not that his wife would suffer emotional distress on the basis only of a physical separation, but rather that the separation could exacerbate her existing severe physical and mental health conditions. The primary judge held that it was insufficient for the delegate merely to refer to a psychologist's report in relation to these matters and not squarely address the issue raised by the appellant. His Honour said at [31] (emphasis added): … it is apparent that the delegate did not appreciate the nature of the case being made because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from "a loved one". 36 Plainly, that case turned very much on its own facts, with particular emphasis being given to what the delegate said at the outset of his reasons. The case illustrates the need to pay close fair attention to the decision maker's reasons, when viewed in the light of all the relevant surrounding facts and circumstances. 37 Turning now to Farhat, Kenny J accepted at [33] that the delegate's reasons in that case indicated that the delegate was aware of various documents which had been provided by the appellant in support of his claim for a waiver under reg 2.05(4) of the Migration Regulations 1994 (Cth) (which waiver could be given if inter alia the decision maker was satisfied that, since the person was granted a relevant visa "compelling and compassionate" circumstances have developed over which the person had no control and which resulted in a major change to the person's circumstances). It was evident from the delegate's reasons that the refusal to grant the waiver was based on the delegate's finding that the appellant's marriage, although constituting a major change in his life, was not a circumstance over which he had no control. 38 The primary judge identified the error in the delegate's approach at [37], where her Honour emphasised that the appellant's request for a waiver did not principally rely upon his marriage per se. Nor was his case simply that he did not want to be separated from his wife. Rather, his case in substance was that his wife, who had been his partner for more than a decade, had a mental illness (as identified in a psychiatric report provided to the delegate) and that the appellant provided his partner with the care she needed. Her Honour said at [44] that the delegate failed to appreciate that a central part of the appellant's case was his wife's mental illness and her need for his ongoing care and support in aspect of her daily living. If this had been appreciated the context would also have raised the situation of other family members, including the appellant's relationship with his stepson. 39 Secondly, the appellant did not contest the Minister's submission, which was supported by authority, that a decision maker is not required to refer to every aspect of the evidence put before it and that in some cases the decision maker's consideration of a particular aspect of the matter may be subsumed in a broader consideration of an issue arising for determination (see, for example, WAEE at [46]-[47] and Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [49] per Besanko, Barker and Bromwich JJ). 40 Thirdly, having regard to the detailed nature of the AAT's reasons for decision in this appeal, there is no reason to doubt the truthfulness of the AAT's statements at [40] and [51] respectively that it had "considered all of the circumstances of the present application, including the matter specifically raised by the applicant and those raised on the evidence generally" and had "very carefully considered the evidence concerning the sponsor's health and wellbeing". Moreover, at [51] the AAT expressly stated that it accepted that it would be "quite challenging" for the sponsor to be separated from the applicant if he went to Egypt "given her health and other wellbeing concerns". I am satisfied that these references indicate that the AAT was well aware of the sponsor's claim that her physical and mental health would suffer even more because of the logistical difficulties of communicating with the appellant in Egypt. It is also notable that at [48] of the AAT's reasons for decision there is an explicit reference to the sponsor's letter dated 4 May 2018 with reference to that part of the letter regarding the appellant having successfully completed a security course and obtained a security licence. Then, in the very next paragraph of the AAT's reasons (i.e. [49]), the AAT turned its attention to the appellant's submission that the health and wellbeing of the sponsor was a compelling reason for granting a waiver. It was also in this particular paragraph of the AAT's reasons that it referred to Ms Bennett's report. These matters strongly suggest that the AAT was mindful of what had been put before it regarding the sponsor's mental health issues, including the relevant parts of the 4 May 2018 letter. 41 Fourthly, in determining whether or not a decision maker such as the AAT has addressed the case advanced by the review applicant it is relevant to take into account the manner in which the case was presented, which includes the significance of the evidence which is presented but also any submissions which were made to the decision maker which assist in identifying the issues requiring determination (see AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 at [25]-[26] and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18(a)]). Another relevant consideration is whether or not the review applicant was represented. It is significant to note that the appellant was represented by a solicitor and registered migration agent from shortly after the matter was remitted to the AAT for reconsideration. That legal representative acted for the appellant from 14 July 2017 to the date when the AAT delivered its decision on 28 June 2018. On 10 May 2018, the legal representative provided the AAT with written submissions and accompanying documents. The submissions identified four key issues for determination, including the "welfare and interests of the Australian citizen's sponsor and her daughter" and "emotional and financial hardship that would now be caused by a lengthy separation". In those submissions, the legal representative then elaborated upon what he described as the "main legal points that arise in this case". The focus of those submissions was on the length of the couple's relationship. Nothing further was said regarding the sponsor's mental health and, the risk of her health deteriorating even further because of any separation or problems with communications other than a short statement that there was a difference between the couple living apart in different parts of Australia as opposed to "being in different countries without physical contact for an extended period of time, even in emergencies, and far poorer communication options". 42 Shortly thereafter, on 11 May 2018, the legal representative forwarded a copy of Ms Bennett's report to the AAT, together with a statutory declaration from the sponsor. 43 An extensive volume of material was forwarded to the AAT by the legal representative in the lead up to the AAT's hearing on 17 May 2018. For example, on 11 May 2018, the representative forwarded the AAT a bundle of household budget documents which totalled 40 pages. On 14 May 2018, the legal representative resent a CD containing additional documents in support, which totalled over 350 pages, including some statutory declarations. 44 The legal representative appeared at the AAT hearing on 17 May 2018 and presumably made submissions (noting that a copy of the AAT transcript was not in evidence and thus the Court is unable to determine whether or not the representative gave any emphasis to the part of the 4 May 2018 letter which now grounds the appeal). 45 On 18 May 2018, the legal representative made brief post-hearing submissions, which included a reference to the "professional evidence that [the sponsor's] condition is likely to deteriorate if she is separated from Mr Basyouni for any length of time". Annexed to that submission was a copy of the sponsor's letter dated 4 May 2018 which appears to have been overlooked when the CD was resent to the AAT. As noted above, the sponsor's letter dated 4 May 2018 contained material relating to her health and mental condition, including her statement that there would be increased pressure on her mental and physical health if the appellant was in Egypt. Finally, on 18 May 2018, the legal representative forwarded additional comments from the sponsor for consideration by the AAT, including her statement that having to make a choice between her daughter, parents and her husband "is immense pressure I know I am not mentally or financially capable of dealing without my husband's support". 46 I note that in Karan, at [27] Siopis J described as "a neutral consideration" the fact that the materials which were placed before the decision maker were not voluminous. In my view, however, the position may be different where the materials are considerably voluminous, as is the case here. Where there is voluminous evidence and submissions have been made on behalf of the affected person, in determining whether or not a decision maker has addressed a particular claim, it is relevant to take into account the prominence which was given by the person or their representative to the particular claim, when viewed in the context of the overall case. Another potentially relevant matter is whether any particular claim is significant in its own right, as opposed to being a subset of broader claims which arise either from the evidentiary material or as identified in submissions made by or on behalf of the person. 47 Taking all these matters into account in the particular circumstances here, I consider that the claim relating to aggravation of the sponsor's mental health and wellbeing was adequately addressed by the AAT, particularly at [51] of its reasons for decision. 48 Fifthly, Mr Godwin (who appeared for the appellant and said everything that could reasonably be said in support of the appeal) was critical of the following reasoning of the primary judge at [43] of his Honour' reasons for judgment. After referring to the sentence in the AAT's reasons for decision at [51] which contains a reference to "on balance", the primary judge said (without alteration): 43. I cannot accept, given that explicit statement, there was an overlooking of the issue of the telecommunications difficulties. On the balance it indicates that the Tribunal took account of the matters that mitigated against the applicant being able to maintain communication with the sponsor, but found that they would be able to maintain effective communication. Mr Godwin criticised this statement because it did not address the particular claim concerning aggravation of the sponsor's mental health condition. 49 I do not think that there is anything in this criticism. As was pointed out by the Minister's counsel (Ms Laing), this part of the primary judge's reasons for judgment needs to be read with an appreciation that the single ground of judicial review below was expressed differently from the amended ground of appeal in this Court. The single ground of review below, as set out in [24] of the primary judgment, was that the AAT failed to complete the exercise of its jurisdiction because it did not address the sponsor's claims that communication with the applicant in Egypt would be difficult and unreliable because of telephone communications restrictions and the time difference. That ground did not in its terms focus upon any issue of aggravation of an existing mental health condition. For the reasons given above, however, I am not satisfied that the AAT did not adequately address that particular aspect of the sponsor's claims, as set out in her letter dated 4 May 2018. 50 As I have emphasised, each case necessarily turns upon its own particular facts and circumstances. I am not satisfied that the appellant has established appealable error in the approach taken by the primary judge or his ultimate rejection of the appellant's judicial review application. 51 Having said that, I echo the primary judge's observations at [45] of his reasons for judgment where he acknowledged that this result will be "particularly devastating" to the appellant and the sponsor. Just as it is critical, however, for the FCCA to observe the limits of its judicial review function, so it is critical for this Court to observe the limits of its appellate function. 52 It is for the Minister to determine whether or not there are sufficient circumstances relating to this matter to warrant the exercise of non-compellable powers. One relevant matter is the fact that the appellant's application for a partner visa on the basis of his relationship to his Australian citizen spouse was lodged as far back as 11 November 2013. The evidence is clear that the process has caused the appellant and the sponsor considerable stress and financial cost. The anxiety created by the protracted processes at all stages of the decision-making and review must have exacerbated the existing mental health problems of both the appellant and his wife. On the basis of all the material before the Court, it appears that this is a strong case for favourable Ministerial intervention. But that is entirely a matter for the Minister.

Conclusion 53 For these reasons, the appeal will be dismissed, with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

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