Anwar was born in Malaysia. He came to Australia as a tourist in 2010. Anwar is gay. He lived in fear of his sexuality being discovered as LGBTI rights are not recognised in Malaysia and if he was ‘outed’, he could face discrimination and even imprisonment. Anwar applied for a Protection visa on the basis of his sexuality. His claim for protection was refused by the Department of Immigration and Border Protection (the ‘Department’) and because of his fears of returning home, he became an unlawful non-citizen.
Meanwhile, Anwar had met Pedro and they developed a loving, committed relationship. Pedro is unable to work due to his complex health issues. They became each other’s much needed emotional support. Anwar would also help Pedro with his medications and appointments, learned how to do CPR and could call an ambulance in the event Pedro suffered a seizure and needed to go to hospital.
Pedro sponsored Anwar to apply for a Partner visa, which was refused by the Department. The refusal decision was a blow to the couple. Anwar was afraid of returning to Malaysia and distressed at the thought of leaving Pedro without his support for his medical conditions. They decided to seek a review of the decision at the Migration Review Tribunal (the ‘Tribunal’).
Anwar needed to show that he and Pedro were in a genuine de facto relationship (within the meaning of the migration law) which included a requirement that they had to either ‘live together’ or ‘not live separately and apart on a permanent basis’. This was a problem as Pedro lived in a small one-bedroom flat and his landlord would not allow him to have anyone else living there, so Anwar lived in a shared house close by. Much as they wanted to live together, Pedro was on a Disability Support Pension and living in social housing, so it was not an option to give up his flat.
Whilst the Tribunal accepted the couple were in a supportive, loving relationship and were satisfied there were compelling reasons to allow Anwar to apply for another visa (as an ‘unlawful non-citizen’ at the time he applied for the Partner visa, he was affected by Schedule 3 of the Migration Regulations – a bar to applying for a visa if you have already been previously refused one and haven’t left the country), the Tribunal decided that Anwar was not eligible for a Partner visa. This was because Anwar and Pedro had never lived together. The Tribunal refused their application on this technical point and instead referred the matter to the Minister to decide whether he would be prepared to intervene in Anwar’s case.
This was a very upsetting outcome for Pedro and Anwar. Regrettably, the Minister decided not to intervene to assist Anwar to stay in Australia.
This was yet another devastating blow. Anwar thought his options were exhausted as he was long out of time to lodge any appeal to the Court and his earlier advice was that he held no prospects of success. Also, Anwar and Pedro did not have the financial resources to pay for a lawyer.
In desperation, Anwar and Pedro attended at a Salvos Legal Humanitarian advice bureau in October 2016. Anwar was unlawful again and afraid of approaching the authorities for help.
We reviewed the Tribunal decision and formed a view that the Tribunal had made a mistake in its legal reasoning, as a Federal Court decision came down about a week after Anwar’s Tribunal decision which changed the law on the treatment of de facto relationship status. We advised Anwar that he should seek an extension of time and appeal the Tribunal’s decision.
With the assistance of two barristers, Brenda Tronson and Monique Cowden, who provided their expertise on a pro-bono basis, we assisted Anwar to file an appeal in the Federal Circuit Court by drafting affidavits about why the Court should allow this appeal to be made outside the time limit and explaining why the Tribunal had made a mistake in its decision. We also assisted Anwar with a financial hardship application. Thankfully, this was accepted which meant that Anwar did not have to pay the substantial Court application fee.
Within a matter of weeks, the Department’s solicitor accepted there was a mistake in the Tribunal’s decision. Shortly after, the Court finalised the case and made orders allowing the appeal application to be made outside of the usual time limit and returning the decision back to the Tribunal, to be reconsidered according to law.
The Court also awarded costs to Anwar as the successful party. These funds were used to cover the legal costs of this appeal, including money to pay the barristers who assisted and to Salvos Legal Humanitarian, going toward funding further pro bono legal assistance for others in need.
Within a few months, Anwar received news that the second time around, the Tribunal made a decision in his favour and returned his visa application to the Department to reconsider. Finally, in October 2017, the Department granted Anwar a permanent Partner visa.
This was a joyous outcome for Anwar and Pedro, coming more than 5 years after Anwar first applied for a Partner visa. They were both so relieved and now with the uncertainty behind them are able for the first time to make plans for their life together. Anwar can now work and intends to study next year.