The appeal to this Court
13 When the appeal was called on, the appellant, with the assistance of an interpreter, applied for an adjournment of the hearing of the appeal. He informed the Court that he wished to have more time to try and secure legal representation, and explained that he was experiencing financial hardship and hoped to get money either from his brother in the United States, or from Egypt. He confirmed he had not been able to secure a lawyer to represent him at the Federal Circuit Court. The adjournment application was opposed by the Minister. I refused the adjournment application, noting that even though it was made late and without notice, I would not have been concerned by those matters if there was a real prospect the appellant would have secured legal representation if I granted the adjournment. However I was not satisfied on the basis of what he had said, and in the absence of any evidence, that there was such a prospect. The fact he had not been able to secure legal representation before the Federal Circuit Court gave me no confidence that, even if I were to adjourn the hearing of the appeal, the appellant would be able to secure legal representation for the adjourned hearing.
14 The appeal hearing therefore proceeded.
15 In his notice of appeal, the appellant set out three grounds of appeal from the Federal Circuit Court:
1. His Honour Judge Manousaridis of the Federal Circuit Court of Australia failed to take into consideration the long term relationship with my partner as we have lived in a de facto relationship from 30 August 2008 during which time I would spend 3-4 days each week at the sponsor's house and that we commenced living together on permanent basis on 5 October 2015. That should lead to the long term relationship which in itself should lead to waive Schedule 3.
2. The Tribunal and His Honour had evidence of medical condition of my partner as well as my stepdaughter Olivia to whom I was a father figure since 2008 yet ignored that this should constitute compelling reasons.
3. It looks like the Tribunal concentrated on the negative aspect of my status in Australia rather than on the positive aspect and the relationship which is long term with my partner.
16 At the hearing of the appeal, I asked the appellant to explain to the Court what he meant by each of these paragraphs. He stated that he was not an expert in the law. He emphasised the situation was bad in Egypt, and before the Tribunal he had focused on the huge number of incidents in Egypt, and submitted what he had said was not an exaggeration.
17 I directed the appellant's attention to the notice of appeal in the appeal book and to the grounds he had set out. I asked him if he had had help to frame those grounds and he said he had. I asked the interpreter to translate the grounds for him, and then invited him to address the Court on what was said there. However, the appellant returned to the issue about the situation in Egypt. After a little more prompting, he stated that he did not believe the Tribunal paid enough attention to how long he and his partner had been together, nor to how long he had been looking after his partner's child.
18 In oral submissions, and in response to the appellant's statements, the Minister's counsel pointed to the part of the Federal Circuit Court decision (at [20]-[21]) where the Federal Circuit Court records the appellant's attempts before it to submit further country information, an attempt which the Federal Circuit Court correctly rejected.
19 As to the Tribunal's decision, addressing the appellant's oral submissions about the situation in Egypt, the Minister accepted that a claimed risk of harm to a Partner visa applicant in a country to which she or he would return was a permissible consideration for the Tribunal in terms of identifying "compelling reasons" not to apply the Sch 3 criteria. I consider that submission is correct. However as the Minister also submitted and the Federal Circuit Court found at [21], the Tribunal did consider the situation in Egypt, by reference to country information, as a potential compelling reason, but was not satisfied it was such a reason.
20 In response to the appellant's statements at the appeal hearing, the Minister also submitted that the Tribunal did not question the genuineness of the appellant's relationship with the sponsor but did consider (at [64]-[65]) the length of the relationship, and the timing of the appellant and the sponsor commencing to live together were matters relevant to determining whether there were "compelling reasons". The Minister submitted, and I accept, that these were permissible considerations for the Tribunal to take into account and it was open to the Tribunal to characterise the appellant's description of the relationship prior to October 2015 as exaggerated, and to find (at [66] of its reasons) that there was "very little commitment to any relationship with each other" prior to October 2015. Also in response to matters raised by the appellant at the appeal hearing, the Minister submitted the Tribunal did take into account the appellant's claims about his role in caring for the sponsor's daughter, but it was open to the Tribunal to find (at [71] of its reasons) that the appellant had not been directly responsible for meeting any of the daughter's needs over that period and that the sponsor and her mother have been able to meet the daughter's needs between themselves. I accept that submission.
21 The Minister's counsel also correctly emphasised that the usual consequence of not satisfying the Sch 3 visa criterion, such as not holding a substantive visa, is that the person must go offshore to obtain a visa. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121, members of the Full Court recognised this was a necessary consequence, and the power to avoid that consequence by finding compelling reasons was designed to give decision-makers some flexibility, in a limited number of circumstances, to avoid the hardship being imposed: see [2] (Dowsett J), and also [53]-[54] (Griffiths J).
22 Turning now to the grounds of appeal as they appear in writing, it is clear they involve a disagreement by the appellant with the conclusions reached by the Tribunal, now expressed by reference to the Federal Circuit Court not being prepared to accept the appellant's criticism of the merits of the Tribunal decision. The appellant is not to be criticised for framing the grounds that way, given he is unrepresented. Nevertheless, on an appeal from a judicial review application, it is not this Court's function to consider and pronounce upon whether at a factual level the Tribunal should have reached a different conclusion.
23 The Minister made written submissions objecting to the way the grounds in the notice of appeal were expressed, because they differed from how the arguments were put to the Federal Circuit Court. That may be correct. However given the appellant is unrepresented, and given the importance of this application to him, I propose to consider the arguments he raises to the extent it is within the Court's function to do so. There is no prejudice to the Minister, nor to the Court or other litigants, as all arguments were able to be dealt with on the day appointed for the hearing. The time that would have been taken in attempting to confine the appellant to matters as argued before the Federal Circuit Court would have exceeded the time taken to allow him to develop his points in the way he wished.
24 On the first point made by the appellant, the Minister correctly submitted that the Tribunal closely considered the appellant's relationship with his sponsor. It also accepted that the incidents and features of a spousal relationship could, in a given factual situation, provide compelling reasons.
25 The Tribunal appreciated the kind of threshold which needed to be met for there to be "compelling reasons". At [45] it set out the following proposition:
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]…
26 The Tribunal referred to the statement in the extrinsic material introducing the Regulations, to the effect that people who:
…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.
27 The Tribunal, correctly, emphasised the word "may" in this passage. It then went through all the factors the Federal Circuit Court summarised in its reasons. At [69] the Tribunal stated:
As stated above, any couple who are in a genuine relationship would face some degree of emotional and financial hardship if they are required to be separated while an offshore Partner visa application is filed. In these circumstances, the sponsor of the applicant usually remains living in Australia and continues to communicate with the applicant by telephone or other electronic devices, which the parties have been doing while they have been living in separate homes. Parties in these circumstances generally spend holidays together either in the home country of the applicant or a nearby country. There is nothing to indicate that the circumstances of the parties or any genuine emotional commitment they may have to each other is any different to any other couple in a genuine relationship.
28 It is apparent the Tribunal considered the appellant's relationship with his partner, but simply did not find its nature and length, or the level of commitment revealed by the evidence, to be a compelling reason to dispense with the Sch 3 criteria. That was part of the Tribunal's merits review function and not a matter with which this Court can interfere, any more than the Federal Circuit Court could have done so.
29 As to the second argument about the way the Tribunal dealt with the medical evidence before it, I find that there was no jurisdictional error in the Tribunal's approach. It was not required to accept the medical evidence uncritically, especially the evidence from the sponsor's treating doctor, about whom the Tribunal made the following finding:
The report from the sponsor's general practitioner appears to accept uncritically the information provided by the sponsor.
30 It also found that the medical evidence about the sponsor's health issues:
…do[es] not indicate that the sponsor's circumstances would be any different to any other person who is sponsoring an applicant for an offshore Partner visa application.
31 The third argument made by the appellant appears to raise issues of the Tribunal's bias against him, as he also submitted to the Federal Circuit Court. That is what I understand by the allegation that the Tribunal focussed on the negative rather than the positive. On this matter, I consider the Federal Circuit Court was correct to conclude there was no evidence of bias, actual or apprehended, in the Tribunal's reasons.