1805730 (Migration) - [2020] AATA 2957

1805730 (Migration) [2020] AATA 2957 (24 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1805730
MEMBER:Mireya Hyland
DATE:24 June 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2)(d) of Schedule 2 to the Regulations.

Statement made on 24 June 2020 at 1:37pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remitted – application made more than 28 days after last substantive visa held – compelling reasons for granting visa – migration and visa application history – bridging visas granted pending protection then partner visa applications – lawful visa status at all times – timeline through department, first tribunal, court and current tribunal – extreme delays because of increasing numbers of applications – natural justice in timely administrative decision making – COIVD-19 travel restrictions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 357A, 360(2)(a), 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, item 3001
Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b)
CASES
Al Souhmarani v MIBP [2016] FCCA 2866
Babicci v MIMIA (2005) 141 FCR 285
Benissa v MIAC [2010] FMCA 657
Choi v MIBP [2018] FCA 291
CQV16 v MIBP [2018] FCCA 3735
CQV16 V MIBP [2019] FCA 1098
Jarratt v Cmr of Police for NSW [2005] HCA 50
Lan v MIBP [2018] FCCA 1170
McNamara v MIMIA [2004] FCA 1096
MIMA v Eshetu (1999) 197 CLR 611
MZYPZ v MIAC [2012] FCA 478
NAIS v MIMIA (2005) 228 CLR 470
Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50
Re MIMA; Ex parte Applicant S20/2002 [2003] HCA 30
Re MIMIA; Ex parte Lam (2003) 214 CLR 1
Saeed v MIAC (2010) 241 CLR 25
Singh v MHA [2020] FCAFC 7
Sun Zhan Qui v MIEA [1997] FCA 324
Sun Zhan Qui v MIEA (1997) 151 ALR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant [the applicant] a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] applied for the visa on 6 July 2015 on the basis of his relationship with his sponsor, [Ms A]. At that time, Class UK contained one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on 10 November 2016 on the basis that [the applicant] failed to meet cl.820.211(2)(d). [The applicant] did not hold a substantive visa at the time of application and the delegate was not satisfied that there were compelling reasons not to apply the requirements in Schedule 3 to the Regulations. The Tribunal has had regard to the information available in the Department of Immigration’s (the Department) file in this matter.
On 22 November 2016, [the applicant] lodged an application with the Tribunal, differently constituted, (the first tribunal) for review of the delegate’s decision. [The applicant] attended a hearing with the first tribunal on 8 November 2017. The first tribunal also took oral evidence from [Ms A] and a friend, [Mr B]. The Tribunal has listened to a recording of that hearing. The Tribunal has also had regard to the information available in the first tribunal’s file (AAT1619648).
The issue in this case is whether there are compelling reasons not to apply the provisions in Schedule 3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider it had any ongoing s.360 obligation as it was able to find in favour of [the applicant] on the basis of the material before it and so, pursuant to s.360(2)(a) of the Act, it was unnecessary for the Tribunal to invite [the applicant] to a further hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant] was born on [Date] in Nigeria and is [Age] years of age. He is a citizen of Nigeria. [Ms A] was born on [Date] in [Country] and is [Age] years of age. She first arrived in Australia [in] December 1995 and became an Australian citizen [in] January 2000.
[Ms A] first met [the applicant] at the [Venue] in [Suburb 1] [in] August 2014 at her [party]. They started a relationship and in late September or early October 2014 [the applicant] asked [Ms A] to marry him. She moved into his residence just before their wedding [in] November 2014. They currently live at [Suburb 2] in New South Wales.
Clause 820.211(2)(d) and Schedule 3
Clause cl.820.211(2)(d) requires that an applicant who is not the holder of a substantive visa at the time of application satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Tribunal is satisfied that there are compelling reasons for not applying those criteria. In this case, the question is whether [the applicant] satisfies the requirements in Item 3001.
[The applicant]’s Migration History
[The applicant] first arrived in Australia for [an Event] [in] June 2014 as the holder of a Class FA Visitor Subclass 600 visa. That visa expired [in] July 2014. On 23 June 2014, [the applicant] made an application for a Class XA Protection Subclass 866 visa and was granted a Class WA Bridging Subclass 010 visa in relation to that application. On 6 July 2015, [the applicant] lodged this partner visa application and was granted a Class WC Bridging Subclass 030 visa in relation to this application on 8 July 2015. He has remained on a Bridging Visa C since that time.
Clause cl.820.211(2)(d)
The definition of ‘substantive visa’ in s.5(1) of the Act includes, at (a), a visa other than a bridging visa. The last visa held by [the applicant] that was other than a bridging visa was his Visitor visa. That visa ceased on 1 July 2014. Therefore, he did not hold a ‘substantive visa’ at the time of application on 6 July 2015 as required and so cl.820.211(2)(d) is engaged. Therefore, the initial question is whether [the applicant] satisfies Item 3001 of Schedule 3.
Item 3001
In order to satisfy Item 3001, the application for the visa must have been lodged within 28 days of the relevant day: 3001(1). The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In [the applicant]’s case, the relevant day, found in 3001(2)(c)(i) and (iii), is the last day when the applicant held a substantive visa. [The applicant] last held a substantive visa [in] July 2014. Therefore, [the applicant]’s partner visa application needed to be made within 28 days of that date, being by [July] 2014.
Because the visa application was not made within 28 days of the relevant day, [the applicant] does not satisfy Item 3001.
Compelling Reasons – cl.820.211(2)(d)(ii)
Since the Tribunal has found that [the applicant] does not meet Item 3001 of Schedule 3 to the Regulations, it is required to consider whether there are compelling reasons for not applying the requirements in Schedule 3: cl.820.211(2)(d)(ii).
There is no specific definition of 'compelling' in either the Act or the Regulations, although some guidance can be gleaned from judicial consideration of both cl.820.211(2)(d)(ii) and a number of other similar provisions in the Act and Regulations. Whether a reason is compelling is a question of fact and degree for the Tribunal and one which requires a subjective assessment taking into account all of the circumstances.[1] The issue is one of the formation of a state of mind, not the exercise of discretion, but the matters which might be taken into account in forming that state of mind are unconfined.[2] In making that assessment, the scope of the meaning of ‘compelling’ should be referenced by both the context in which it appears, in this case reasons for not applying Schedule 3, and the purpose of the relevant provision.[3] In the context of cl 820.211(2)(d)(ii), that purpose is to deal with cases where there are compelling reasons for not putting particular applicants to the hardship of having to leave Australia to apply for a partner visa.[4]
[1] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [53].
[2] Singh v MHA [2020] FCAFC 7 per Derrington J at [55] and [61].
[3] See Plaintiff M64/2015 v MIBP [2015] HCA 50 at [53]. See also Lui v MIBP [2015] FCA 1368 at [40].
[4] Al Souhmarani v MIBP [2016] FCCA 2866 at [18] citing Griffiths J in Waensila v MIBP [2016] FCFAC 32.
To be ‘compelling’ the reasons must force or drive the Tribunal irresistibly to some end.[5] But while the word ‘compelling’ may include reasons which are forceful, involve moral necessity, or are convincing, it does not, by itself, necessarily require an involuntary element involving circumstances beyond a person's control.[6] Nonetheless, the reasons should be sufficiently convincing, the circumstances sufficiently powerful, to move the Tribunal to exercise its power and make a positive finding to waive the requisite provisions.[7]
[5] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
[6] Paduano v MIMIA (2005) 143 FCR 204 at [37]. See Choi v MIBP [2018] FCA 291 at [33] where the Court made obiter comments implicitly warning of the risk of error for incorrectly requiring ‘compelling reasons’ to have an involuntary element.
[7] MZYPZ v MIAC [2012] FCA 478 at [10] and Babicci v MIMIA (2005) 141 FCR 285 at [24]. Also see Singh v MHA [2020] FCAFC 7 per Derrington J at [27]. The Tribunal is cognisant of the obiter comments of Derrington J in Singh at [61] that the language of ‘waiver’ is incongruous with the terms of cl.820.211(2)(d)(ii) which simply require that an assessment be made as to the existence of compelling reasons for not applying Schedule 3 criteria, but ‘waive’ is the term used in Babicci (referring to the discretion to waive r.1.20J(1)) that is referred to in MZYPZ at [10] in relation to cl.820.211(2)(d)(ii).
It is relevant to take into account the purpose of the provision in determining whether there are compelling reasons, although circumstances that do not have a direct link to that purpose have not be excluded from consideration.[8] The Explanatory Statement which accompanied the introduction of the provisions states that its inclusion was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a partner visa, but would otherwise be forced to leave Australia and apply offshore.[9] The policy position draws from the notion that an applicant who has not complied with Australia’s migration laws should not gain an advantage over an applicant who has complied with those laws and properly applied for a partner visa outside Australia. Although not binding, policy would seem to dictate that there be something that sets the applicant apart from those offshore applicants to warrant the Tribunal forming the requisite state of satisfaction to not apply the Schedule 3 criteria, a task which does not involve an exercise of discretion.[10] That said, in assessing compelling factors, the Tribunal has avoided applying any gloss, or using any policy interpretation, that would unduly fetter the scope of its power to assess the question concerning whether the relevant state of mind has been achieved[11] as that may apply a higher test than expressed in the legislation.[12]
[8] Al Souhmarani v MIBP [2016] FCCA 2866 applying Monakova v MIMIA [2006] FMCA 849. Those cases identified the relevant purpose as permitting the person to make an application for a partner visa in Australia.
[9] Explanatory Statement to Statutory Rules 1996, No 75.
[10] Singh v MHA [2020] FCAFC 7 per Derrington J at [62].
[11] Singh v MHA [2020] FCAFC 7 per Derrington J at [73].
[12] Paduano v MIMIA (2005) 143 FCR 204 at [37]. See also Schaap v MIMIA [2000] FCA 1408 at [8]-[9].
The Tribunal is obliged to consider all the circumstances of the case, including those arising after the visa application was lodged and up until the time of this decision,[13] and any matters put forward by an applicant to determine whether, on the evidence as a whole, there are compelling reasons for not applying Schedule 3.[14] However the compelling reasons must exist at the time of this decision. Future intentions are not relevant considerations in determining whether there are compelling reasons to allow an applicant to have his or her application fully assessed onshore.[15]
[13] Waensila v MIBP [2016] FCAFC 32 at [22] and [59] overruling the Federal Court decision in Boakye-Danquah v MIMIA (2002) 116 FCR 557 which held that ‘compelling reasons’ was limited to those arising out of the circumstances as at the time of visa application.
[14] MZYPZ v MIAC [2012] FCA 478 at [12]. See also ATT20 v MIBP [2020] FCCA 499 and Daneshpour v MIBP [2020] FCCA 879.
[15] In Lan v MIBP [2018] FCCA 1170 the Court rejected an argument that an intended future pregnancy qualified as a compelling reason in the circumstances of that case.
The Progress of [the applicant]’s Matter
Relevant to the Tribunal’s reasoning, set out below, is how [the applicant]’s matter has progressed over the past five years:
2015 – 6 July:              [The applicant] lodged his partner visa application claiming to be the spouse of [Ms A].
2016 – 10 November: The delegate refused the application; the claim that [the applicant] is the spouse of [Ms A] was not considered because there were no compelling reasons to do so.
2016 – 22 November: [The applicant] lodged an application for review with the Tribunal claiming to be the spouse of [Ms A].
2017 – 8 November:     The matter was constituted to the first tribunal and a hearing was held pursuant to s.360 of the Act.
2017 – 14 November: The first tribunal affirmed the delegate’s decision; the claim that [the applicant] is the spouse of [Ms A] was not considered because there were no compelling reasons to do so.
2017 – 14 December: [The applicant] lodged an application for judicial review in the Federal Circuit Court of Australia ([deleted]).
2018 – 19 February:     The Minister [withdrew]; the first tribunal’s decision was quashed and the matter was remitted by the Court for reconsideration: the first tribunal failed to independently assess [the applicant]’s claim to be at risk of harm in Nigeria.[16]
2018 – 23 February:     The Department notified the Tribunal and forwarded [the applicant]’s matter back to the Tribunal to be reconsidered.
2019 – 30 August:       [The applicant]’s matter was reconstituted to the Tribunal (as currently constituted).
[16] MZYPZ v MIAC (2012) 127 ALD 510; [2012] FCA 478.
It is clear from this timeline that it took about a year and a half for the delegate to find that there were no compelling reasons to not apply Schedule 3 and decide not to consider whether [the applicant] is [Ms A’s] spouse. It took about another year for the matter to get to the first tribunal to be heard, where it also found no compelling reasons to consider whether he is [Ms A’s] spouse. Due to the ever-growing number of applications, it then took around a year and a half for that decision to go to the Court, for the Minister to withdraw, and for it to be returned to the Tribunal for reconsideration: 6 July 2015 to 24 June 2020 and still no one has even looked at the claim that [the applicant] is the spouse of [Ms A], which is the basis for his application, only the preliminary question of whether that claim should be considered in Australia.
Unfortunately, in the circumstances of this case, this is not an atypical timeline given the increasing volume of applications being lodged.
Findings and Reasons
The adjective ‘compelling’ is an ordinary English word, inherently fact specific in its qualification of ‘reasons’.[17] It does not introduce an objective standard and whether it exists will always involve a subjective judgment.[18] The issue is one of satisfaction; the Tribunal must be satisfied that the criterion in cl.820.211(2)(d)(ii) is met. Therefore, the question is whether the Tribunal has achieved the relevant state of mind, namely satisfaction of the existence of ‘compelling reasons’ for not applying the Schedule 3 criteria.[19] While not exercising a discretion, it is inevitable that ‘reasons’ may appear ‘compelling’ to one person but not another.[20]
[17] Singh v MHA [2020] FCAFC 7 per Logan at [7].
[18] McNamara v MIMIA [2004] FCA 1096 at [10] as cited in MZYPZ v MIAC [2012] FCA 478 at [11]; also see MZYPZ at [12].
[19] Singh v MHA [2020] FCAFC 7 per Derrington J at [72].
[20] McNamara v MIMIA [2004] FCA 1096 at [10] as cited in MZYPZ v MIAC [2012] FCA 478 at [11].
The length of time [the applicant] and [Ms A] have waited for a determination on whether he is her spouse through no fault of their own is a compelling reason for not putting them to the hardship of having to leave Australia to apply for a partner visa. This finding does not indicate in any way that the Tribunal has formed an opinion on whether [the applicant] is [Ms A’s] spouse. The Tribunal has no current information before it relating to whether or not they are in a genuine relationship and for the reasons discussed in its Conclusions below has determined that it would be inappropriate in this case to consider that question. However, it is compelled to not apply the Schedule 3 criteria and now allow that question to be determined in Australia.
The Tribunal has put significant weight on two factors: 1) [the applicant] never remained unlawfully in Australia, but rather made sure to lodge his visa applications before his visas ceased according to Australian migration law; and 2) [the applicant] lodged a partner visa application in July 2015 claiming that he is [Ms A’s] spouse and almost five years later it is yet to be determined whether or not that question should even be considered let alone been decided.
Why is the Tribunal compelled to allow the relationship to be assessed in Australia because it has been almost five years since the application was made even if there is no other reason for not applying the criteria in Schedule 3 or requiring [the applicant] to return to Nigeria? It is, in essence, that ‘enough is enough’. The policy goals of Schedule 3 are laudable and entirely appropriate to [the applicant]’s circumstances. But a point must come when policy gives way to natural justice. Inordinate delay, even if no one’s fault, is clearly one of those instances. [The applicant] is entitled to have his claim resolved, whether here or in Nigeria. It is no longer reasonable or fair to expect him to return to Nigeria, nor consistent with the doctrines underpinning Australia’s administrative justice system to not finally resolve the matter in Australia. This is particularly the case given the current restrictions on travel.
Administrative Justice
The main goal of the administrative law is to protect the interests of the public as it interacts with government. Any exercise of statutory power is intended to be governed by common law principles of natural justice unless there is legislation of ‘irresistible clearness’ stating otherwise.[21] Natural justice, while clearly neither simple nor settled, allows that those affected by government action are entitled to a basic level of fairness.[22] Although that is hard to define, ‘fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.[23] Natural justice and fairness are the capstones of any ‘administrative justice’ system and the concept of administrative justice is embedded in the Australian administrative culture and practice. It is wrought through those administrative law institutions, and the principles that guide them, making up Australia’s administrative justice system: government, tribunals, and courts acting together to render correct or preferable decisions.
[21] Saeed v MIAC (2010) 241 CLR 252 at [15] citing Potter v Minahan (1908) 98 CLR 383, 396 as cited in
[22] Groves ( above), p.27.
[23] Re MIMIA; Ex parte Lam (2003) 214 CLR 1 at 14 [37] per Gleeson CJ as cited by Kirby J in NAIS v MIMIA (2005) 228 CLR 470; [2005] HCA 77 at of [93].

Administrative justice encompasses a wide range of elements, but central among them is the rule of law, ‘principles of good government or (if it be different) good administration,’ and the ‘over-arching goals of efficiency, effectiveness and economy’.[24] It has long been accepted that a distinguishing feature of administrative justice is that justice to the individual has to be tempered by the needs of public administration.[25] It encompasses both the ‘administrative’ and the ‘justice’, although it is not possible to decide the balance between them in the abstract.[26] Nonetheless, the objective is to balance that ‘efficiency and effectiveness’ with ‘individual justice’[27] and the interests of the public include meaningful access to both.
Extreme Delay
[24] Mark Aronson, Is the ADJR Act Hampering the Development of Australian Administrative Law? (2005) 12 Australian Journal of Administrative Law 79, 94 as cited in Groves ( above). Emphasis added by the Tribunal.
[25] Commonwealth Government of Australia, Report of the Commonwealth Administrative Review Committee (the Kerr Report), 1971.
[26] Creyke, Robin, Administrative Justice - Towards Integrity in Government [2007] MelbULawRw 30; (2007) 31(3) Melbourne University Law Review 705, p.732.
[27] Creyke ( above), p.724.
Since the common law requirements of procedural fairness are recognised as applying generally to governmental executive decision-making, it is settled that when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights or interests the rules of procedural fairness regulate the exercise of that power.[28] Extreme delay in the making of a decision, can, in particular circumstances, lead to a denial of procedural fairness.[29] Reference to the timeliness of a decision exists throughout legislation, case law, and literature, not least in the Tribunal’s own statute that reviews be fair, just, economical, informal and quick.[30] The Commonwealth Attorney-General’s Department’s Administrative Review Council’s ‘public law values’ include ‘efficiency’[31] and it identified ‘timeliness’ as an objective of the tribunal system.[32] The New South Wales Local Courts identified ‘expedition and timeliness’ as necessary to achieve administrative justice.[33] Rarely, however, is this ‘efficiency’ reconciled with the requirement for correct or preferable decisions.[34] The Tribunal is not suggesting that ‘efficiency’ should be privileged over ‘effectiveness’.[35] It is just acknowledging, and acting on, the reality that every applicant is entitled to both and it is for the Tribunal to continually keep the two in balance as the circumstances of a case evolve.
[28] Jarratt v Cmr of Police for NSW [2005] HCA 50 at [26] per Gleeson CJ: ‘Where parliament confers a statutory power … parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of parliament's assumed respect for justice’.
[29] NAIS v MIMIA (2005) 228 CLR 470; [2005] HCA 77 (NAIS) where the High Court by majority held that a decision of the Tribunal should be quashed on the basis that an unexplained delay of more than five years in reaching a decision gave rise to procedural unfairness and jurisdictional error; see also Frugtniet v Tax Practitioners Board [2018] FCA 387 per Steward J at [25].
[30] s.2A(b) of the Administrative Appeals Tribunal Act 1975, although the Tribunal notes that this is not the terms of ss.353 and 357A(3) of the Act, being the specific natural justice provisions under which the Tribunal as constituted in the Migration and Refugee Division operates.
[31] Attorney-General’s Department (Cth), Administrative Review Council, The Scope of Judicial Review, Report No 47 (2006) .
[32] Attorney-General’s Department (Cth), Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) [2.10].
[33] Attorney-General’s Department (Cth), Administrative Review Council, Review of the Adversarial System of Litigation: Federal Tribunal Proceedings, Issues Paper No 24 (1998) [11.5] with reference to the American Commission on Trial Court Performance Standards, National Center for State Courts, United States, Draft Trial Court Performance Standards (1994) as cited in Creyke ( above), p.719.
[34] Sun Zhan Qui v MIEA [1997] FCA 324 (Lindgren J, 6 May 1997) at [1.1.3] (Lexis BC9701669 at 40): ‘the objectives … will often be inconsistent. … a mechanism of review that is “economical, informal and quick” may well not be “fair” or “just”’; reversed by Sun Zhan Qui v MIEA (1997) 151 ALR 505 (Wilcox, Burchett and North JJ), but this aspect was approved by the High Court in MIMA v Eshetu (1999) 197 CLR 611; [1999] HCA 21.
[35] Marcia Neave, In the Eye of the Beholder — Measuring Administrative Justice in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe, (2000) 124, 128-9 as cited in Creyke ( above), p.718.
The High Court has found excessive delay and a resultant breach of natural justice is a denial of administrative justice.[36] In NAIS v MIMIA[37] it noted that the inevitable effect of the extreme delay, in that case around five years, was that the process was not ‘procedurally fair and just’.[38] The Tribunal is in no way suggesting that the delay in this matter would attract judicial review for jurisdictional error. It does not give rise to a breach of procedural fairness within jurisdiction in the NAIS-sense. There is nothing in judicial authority that leads the Tribunal to have concerns that the time that has passed since the visa application was made has resulted in jurisdictional error,[39] particularly in light of the exhaustive statement of the natural justice hearing rule in s.357A of the Act. The Tribunal is merely noting an unfortunate and unintended breach of a basic standard of natural justice, timeliness.
[36] NAIS at [7], [22], [71], and [93]; Re MIMA; Ex parte Applicant S20/2002 [2003] HCA 30 per Kirby at [170] regarding the centrality of the concept of natural justice to administrative decision-making. Also see Jago v District Court of New South Wales (1989) 168 CLR 23, 26 (Brennan J) as cited in Creyke ( above), .
[37] (2005) 228 CLR 470; [2005] HCA 77.
[38] NAIS per Kirby J at [102].
[39] See for instance Benissa v MIAC [2010] FMCA 657 (Riley FM, 3 August 2010) and CQV16 v MIBP [2018] FCCA 3735 (Judge Manousaridis,14 December 2018) at [90] and [92]-[94]; Also, CQV16 V MIBP [2019] FCA 1098 (Griffiths J, 15 July 2019) at [76]-[80] where the Court, in distinguishing NAIS, held that the Tribunal’s delay in making its decision did not give rise to a real and substantial risk that its ability to review the claims and evidence was diminished.
While the courts might engage in ‘administrative justice’ as a by-product of judicial review,[40] they have no jurisdiction to simply ‘cure administrative injustice’.[41] The Australian Constitution ‘does not exist for the purpose of enabling the judicial branch of government to impose upon the executive branch its ideas of good administration.’[42] It precludes any notion of substantive court-led ‘natural justice’.[43] But that is neither the case for the Tribunal when determining whether it has reached the required state of mind nor a reason it cannot use the court’s opinions about the link between delay and natural justice as a guiding principle. It is not necessary that a breach of administrative justice conform to the requisites for jurisdictional error before the Tribunal can consider it compelling. It only needs [the applicant]’s resulting circumstances to be sufficiently egregious to so undermine the normative principles of natural justice that the Tribunal is satisfied it is compelling, with an eye to the purpose of cl.820.211(2)(d)(ii) of the Regulations.
A Compelling Reason
[40] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 14 as cited in Creyke ( above), p.713.
[41] NAIS per Kirby J at [104] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. Emphasis added by the Tribunal.
[42] MIMA; Ex parte Lam (2003) 214 CLR 1 at [28].
[43] Obviously the Tribunal is not suggesting that the Court has no role in administrative justice, only that it is the more nebulous notion of natural justice within the administrative justice system more generally, and not court-based administrative justice as practiced through jurisdictional error, that it is considering when determining whether extreme delay is a compelling reason not to apply the criteria in Schedule 3 to the Regulations.
The Tribunal appreciates that there has been no dereliction in relation to the amount of time this matter is taking and that waiting times for cases to be considered are a symptom of the enormous workloads being juggled at all levels of the system. However, the fact remains that an enormous amount of time has passed since the application was made and, although the fault does not lie with the government, Tribunal, or Court, nor does it lie with [the applicant]. So it falls to the Tribunal to balance the ‘administrative’ and the ‘justice’ in his case. While justice should never be sacrificed to efficiency, in this case timely administration has been lost to [the applicant]’s right to justice. This was entirely appropriate. But as a result of the diligence of Australian’s administrative system in protecting [the applicant]’s legal rights of review, he finds himself in a place that is neither ‘fair’ nor ‘just’. And so, for the Tribunal, it is clear that the resulting delay has been so long that the scale of fairness has now tipped from protecting the rule of law in favour of efficient decision-making. After all, if his matter had been capable of an earlier resolution allowing him to return to Nigeria to apply offshore, he would have had a decision on the question of whether he is [Ms A’s] spouse well before this time.
It is true that [the applicant] could have left Australia at any time during the process. However, it is a hallmark of Australia’s administrative justice system that all applicants are entitled to have any decision made by the government or a tribunal that affects them reviewed by a competent authority. It would be inappropriate and unreasonable for the Tribunal to in any way take into account the fact that [the applicant] chose to exercise his rights to do so when considering whether the time that has passed is sufficient to be compelling. This is particularly the case given the Minister’s decision to [withdraw] and the fact that the Court agreed to consent orders on the basis that the Tribunal had fallen into error because it failed to fully consider a clearly articulated claim.
Also relevant to its finding, the Tribunal has taken into account the inevitability of further extensive delay before [the applicant] can expect a decision on his application if he is required to make an application in Nigeria. The Tribunal understands that future circumstances or intentions are not relevant considerations in determining whether there are compelling reasons. The reasons must exist at the time of this decision. However, although the delay itself will not occur until after the time of this decision, the circumstances that mean that the delay is an inevitability exist now. At the time of this decision a coronavirus, SARS-CoV-2 (Covid-19), has spread into a global pandemic that has restricted travel both out of Australia and into Nigeria. On 26 March 2020, it was announced that President Muhammadu Buhari had ordered the immediate closure of all international airports and land borders for four weeks in response to the spread of Covid-19.[44] Despite this initially limited period, according to the U.S. Embassy and Consulate in Nigeria as at the time of this decision all international flight operations remain suspended. The Tribunal was unable to find any flight from Sydney to anywhere in Nigeria. Cases of Covid-19 continue to rise in Nigeria. On 18 June 2020, it registered its highest daily increase in cases to date and on 21 June 2020 the number of positive tests reached 20,244 cases in total giving it the third highest number of registered cases in African.[45] Therefore, it would appear there is no indication that [the applicant] will be able to return to Nigeria and make an offshore application any time in the foreseeable future.
[44] ‘BREAKING: Buhari directs closure of air, land borders for 4 weeks’, Vanguard Newspaper, 26 March 2020: (accessed 23 June 2020).
[45] ‘Coronavirus (COVID-19) cases in Nigeria from February to June 2020’, published by Lars Kamer, Statista, 22 June 2020: (accessed 23 June 2020).
The Tribunal finds that the fact that five years have passed since [the applicant] lodged his application does not accord with the principles of natural justice that underpin Australia’s administrative justice system. Although, in this case, it would not attract a remedy in the court, it is, nonetheless, a breach of administrative justice and a compelling reason within the context of cl.820.211(2)(d)(ii). In short, although it is no one’s fault, the delay has reached a point where it is unfair.
The Tribunal appreciates that [the applicant] will not be unique in finding himself in this situation. Many applicants who apply for judicial review and have their cases reconsidered by the Tribunal may find themselves equally delayed. That does not change the fact that it is one of [the applicant]’s circumstances and so relevant for the Tribunal to consider when considering his circumstances as a whole. It puts him in a position that distinguishes him from that of an ordinary offshore applicant. Nor is the Tribunal suggesting that there might never be a case where such delay would not constitute a compelling reason. The Tribunal only finds, for all the reasons above, that in [the applicant]’s case it is compelled not to penalise him by applying the Schedule 3 criteria and, instead, allow him to have his partner visa application considered in Australia rather than requiring him to return to Nigeria and start the process again as an offshore applicant. In making that assessment, it has taken into consideration the scope of the meaning of ‘compelling’ reasons for not applying Schedule 3, as well as the purpose of both Schedule 3 and the exception.[46] It notes that there is nothing in the context of the legislation that requires the reason to be outside [the applicant]’s control. However, he has diligently pursued each stage of the process in a timely manner and the delay has been for reasons beyond his control. It is also relevant that [the applicant] has never breached Australian migration law. The Tribunal has given these things considerable import when weighing up his circumstances against the purpose of Schedule 3. It has also considered the further delay due to Covid-19 and the fact that had he not pursued his administrative law rights, but returned and reapplied in Nigeria, the matter would be settled.
[46] The Tribunal is aware that the common use is ‘waiver’, for instance in MZYPZ v MIAC [2012] FCA 478, but has instead preferred the term ‘exception’ used by Derrington J in Singh v MHA [2020] FCAFC 7 at [61] noting that the language of ‘waiver’ is incongruous with the terms of cl.820.211(2)(d)(ii).
Conclusions
The Tribunal is satisfied that there are compelling reasons for not applying the criteria in Schedule 3. Accordingly, [the applicant] meets cl.820.211(2)(d)(ii).
In light of the Tribunal’s findings above, it considered whether it should also assess the other criteria in cl.820.211 and in particular address the question of whether [the applicant] is the spouse of [Ms A]: cl.820.211(2)(a). As noted above, there is nothing before the Tribunal at this time to identify whether he would meet that criterion or not.
The delegate in the decision dated 10 November 2016 did not consider cl.820.211(2)(a) or the genuineness of the relationship. There is no doubt that the Tribunal has the power to put itself in the shoes of the Minister and make a decision on that question. However, the question of [the applicant]’s and [Ms A’s] relationship is the crux of the application and if the Tribunal were to usurp the delegate’s role it would deny [the applicant] any opportunity for merits review of that decision. Any judicial review by the courts would only look at whether the Tribunal has acted within its jurisdiction and not revisit any question of fact like whether the relationship is genuine.
The Tribunal appreciates the incongruity of, on the one hand, putting such emphasis on the extended delay in deciding this matter and, on the other, itself extending that delay by not deciding the question. It has closely weighed the further delay against the possibility that [the applicant], if he were unsuccessful, would have no recourse to have that decision reconsidered by a competent authority. Denying [the applicant] that review right, should he require it, would be inconsistent with the reasoning in this decision because access to such a review is the very purpose for Australia’s administrative justice system. Therefore, the Tribunal cannot help but find that, given it is the central question in his application, depriving [the applicant] of his merits review rights cannot be in his best interests or in the best interests of administrative justice. As a matter of administrative legal principle it has decided that the better course is to remit the matter without considering the question in cl.820.211(2)(a), allowing the application to take its natural course.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2)(d) of Schedule 2 to the Regulations.
Mireya Hyland
Member

ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)      the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

Groves, Matthew, Administrative Justice in Australian Administrative Law [2011] AIAdminLawF 8; (2011) 66 AIAL Forum 18.