FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABAZI & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2646 |
| Catchwords: MIGRATION – What does and what does not constitute “compelling reasons” for the purposes of the Migration Regulations – couple in relationship of five years – no proper consideration of medical and other evidence – “compelling reasons” established – flaws in the quality of interpretation during the hearing before the AAT – relief granted. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), r.1.20J(2); cl.300.213 & 300.222. |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 CYG16 v Minister for Immigration and Border Protection [2018] FCA 433 Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 |
| First Applicant: | IRFAN ABAZI |
| Second Applicant: | ENTELA QOSE |
| Third Applicant: | DHIMITRIOS QAZIMLLARI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 60 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 19 March 2019 |
| Date of Last Submission: | 19 March 2019 |
| Delivered at: | Canberra |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Solicitors for the Applicants: | Sean Kikkert |
| Solicitors for the Respondents: | Clayton Utz, Canberra | |
ORDERS
The decision and recommendation of the Administrative Appeals Tribunal dated 9th July 2018 be set aside, and the matter be remitted for further assessment by a different reviewer.
Absent any Application within 14 days, the First Respondent is to pay the Applicant’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 60 of 2018
| IRFAN ABAZI |
First Applicant
| ENTELA QOSE |
Second Applicant
| DHIMITRIOS QAZIMLLARI |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns whether the Applicant has sufficiently established “jurisdictional facts” that constitute “compelling reasons”, which are sufficient “to force or drive the decision-maker” to exercise a discretion, under r.1.20J(2) of the Migration Regulations 1994 in the Applicant’s favour.[1]
[1] Generally, see the comments of Crennan J (as her Honour then was) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 at [37], [44] and [53] and the earlier comments of the Full Federal Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [23] and [24].
In Plaintiff M64/2015 v Minister for Immigration and Border Protection the High Court said, at [30] - [31] (internal citations omitted):[2]
[30] The plaintiff's submission misunderstands the operation of cl 202.222(2). Clause 202.222(2) does not state several criteria by reference to which the decision is to be made: it raises only one criterion for the grant of the relevant visa. That criterion is that the Minister (or a delegate) is "satisfied" that "there are compelling reasons for giving special consideration to granting the applicant a permanent visa". As was the case in Minister for Immigration and Ethnic Affairs v Wu Shan Liang - , the nature of the decision entrusted to the Delegate was not a "determination" but, rather, "satisfaction". That state of satisfaction must be informed by the factors mentioned in pars (a) to (d), to which the Minister must have regard in making the single evaluation required in order to grant a Subclass 202 visa. It is, therefore, wrong to speak of findings that the Visa Application "satisfied" pars (a), (b) and (c). And, in truth, the terms of the Delegate's letter do not suggest that the Delegate approached his task as a matter of making findings about separate criteria rather than taking the factors into account in reaching his decision.
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision-maker" "irresistibly" to be satisfied that "special consideration" should be given to granting the particular application.
In the current matter, the Applicant seeks relief following a decision of a Delegate of the Minister, which was confirmed by the Administrative Appeals Tribunal’s (“the Tribunal” or “the AAT”) on 9th July 2018.[3] The Tribunal affirmed the Delegate’s decision (made on 27th May 2016) to refuse to grant Prospective Marriage (Temporary) (Class TO) Visas under s.65 of the Migration Act 1958 (Cth) (“the Act”) to the Applicant sponsor and his fiancée.
[3] The decision record of the AAT is at Court Book (“CB”) (Vol.2) pp.573 – 578.
The Delegate did not grant the visas sought because, it said (Reasons, par.2), the First-Named visa Applicant did not satisfy cl.300.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Delegate determined that the sponsorship limitations set out in r.1.20J had not relevantly been satisfied. Further, the Tribunal was not satisfied that there were, among other things, “compelling circumstances” sufficient to warrant the exercise of the Minister’s discretion under r.1.20J(2). The terms of the Regulations in issue are set out later in these reasons.
For the reasons that follow, among other things, the relief sought by the Applicant should be granted, together with a consequential Order for costs. This is because the Tribunal did not relevantly or properly consider what did and what did not constitute “compelling circumstances”, and because of the significantly flawed interpreter services during the hearing before the Tribunal,
The Administrative Appeal Tribunal’s Decision
At pars.4 – 7 of its reasons, the Tribunal provided an overview of the criteria and limitations contained in Subclass 300 Prospective Marriage, Visas. For example, the limitations (which refer back to r.1.20J and r.1.20KA) set a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. In particular, r.1.20KA limits the period before which certain parent visa holders can sponsor another person for a Partner Visa.
Par.8 recorded the Applicant’s two previous successful Applications, where he had sponsored two separate prospective partners. In February 1991, the Applicant sponsored Ms Abazi for a subclass 100 visa. He had 3 children with his first Wife. They divorced in October 2010. In July 2011, the Applicant sponsored Ms Kucuku for a Prospective Marriage Visa. This visa was granted in May 2012. Ms Kucuku arrived in Australia in August 2012, but departed these shores 4 weeks later. This second marital relationship formally ended in February 2013. The Tribunal acknowledged that Ms Kucuku did not gain permanent residence in Australia.
According to the Applicant, his second, very short relationship ended due to “lack of trust”. The Tribunal acknowledged this but said, at par.9, that such circumstances did not constitute “compelling circumstances.”
Although he was divorced, it was never argued or raised that the Applicant’s second marriage was annulled. If it was annulled, and therefore there had never been a valid marriage, it would be speculative whether the limitation for a Sub-class 300 Visa would or could apply to the Applicant.
To pause briefly here, the issue of what were, and what were not, “compelling circumstances”, featured prominently in the arguments put to the Tribunal, and likewise in its reasons. Curiously and unfortunately, there was no reference to any relevant authority in this regard, such as the detailed and regularly cited comments of Crennan J (as her Honour then was) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs.[4] Subject to what is said later in these reasons, and precisely because the Tribunal appears to have been “uninstructed” by relevant principle in its regular commentary and ultimate determination, in my view it is important at this stage to record her Honour’s comments in relation to how a Court should properly and reasonably consider “compelling circumstances.” For example, at [30] – [35], her Honour said (emphasis added):
[4] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204. Paduano was either cited with approval or applied in, among other decisions: Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [26] (Dowsett, Pagone & Burley JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [31].
[30] In construing ‘compelling reasons for the absence’ as reasons that ‘demand or rouse strong attention, interest or admiration or that . . . tend to demand action’, the Tribunal stated that its construction turned on its understanding of ‘the ordinary or common meaning of the word compelling’. No jurisdictional error or error of law arises out of the Tribunal treating MSI 356 as policy or ‘policy guidelines’ when they are more correctly described merely as guidelines. Nor does any jurisdictional error or error of law arise out of the Tribunal misunderstanding, as it did, Bozanich’s case: Re Minister for Immigration and Multicultural Affairs and Ors: Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473. Those mistakes were made on the way to reaching a conclusion.
[31] ‘Compel’ and ‘compelling’ are words of ordinary meaning and the subclause’s expression ‘compelling reasons for the absence’ falls to be construed by reference to well-established principles. In interpreting a statute or delegated legislation the object of the court is to ascertain the legislative intention as ‘expressed by the words used’: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304. Whilst the construction of a statute is a matter of law, the ordinary or natural meaning of an ordinary English word is generally a question of fact: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 396; Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481. Resort by courts to dictionaries, to assist in the task of establishing the ordinary or natural meaning of an ordinary word has been well recognised over a long period: see the observations of Jordan CJ in Australian Gas Light Co. v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 137, of Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 and of Mason P in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at 504/505. In the final analysis a court must determine the intention of the legislature and the applicability of ordinary words to specific facts by reference to the meaning of the language and purpose of a particular instrument.
[32] A perusal of commonly used dictionaries indicates that the words ‘compel’ and ‘compelling’ are ordinary English words which have not one, but several connotations. What they have in common is a semantic debt to the Latin pello/pellere – ‘to force’, ‘to drive’, ‘to stimulate’, ‘to rouse’, but it is clear beyond dispute that the idea of ‘force’ common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the ‘force’ of mental stimuli such as from a ‘compelling argument’. The Oxford English Dictionary (2nd ed.) Vol III gives four definitions for the verb ‘compel’ ranked from ‘the usual construction’ to ‘rare’:
‘1. To urge irresistibly, to constrain, oblige, force:
a. a person to do a thing;
b. a person to or (into) a course of action, etc.
2.a. To take or get by force, to extort;
b. To constrain (an action); to bring about by force, constraint or moral necessity; to exalt by rightful claim; to command.
3. To force to come, go, or proceed; to drive forcibly, to force
4. To overpower, constrain.’
The same dictionary’s entry for ‘compelling’ contains two definitions:
‘a That compels: see verb
b Of a person, his words, writings etc, irresistible; demanding attention, respect, etc.’
(emphasis added)
[33] The entry in the Macquarie Dictionary (3rd ed.) for ‘compelling’ states:
‘(of a person, writer, actor, etc) demanding attention or interest.’
(emphasis added)
[34] Webster’s Legal Dictionary gives examples of the meanings of ‘compelling’:
‘that compels: tending to demand action or convince’ (emphasis added)
Webster’s Third New International Dictionary (unabridged) 1993 contains the following expanded meanings for ‘compelling’:
‘1. forcing, impelling, driving.
2. demanding respect, honour, or admiration
3. calling for examination, scrutiny, consideration or thought
4. demanding or holding one’s attention
5. tending to convince or convert by or as if by forcefulness of evidence’ (emphasis added)
The emphasised entries show the sources for the Tribunal’s construction of, or gloss upon, ‘compelling reasons for the absence’. The balance, the unemphasised, shows what aspects of the ordinary meaning of ‘compelling’ the Tribunal has omitted from its construction of, or gloss upon, the legislative expression.
[35] The legislative intention to be discerned in the legislature’s use of the word ‘compelling’ in the expression ‘compelling reasons for the absence’ is not an amalgam of every shade of meaning of ‘compelling’ to be found as examples of common usage in dictionaries. A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.
Then at [37], her Honour said (emphasis added):
The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for the absence’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.
At [44] and [53], Crennan J said (emphasis added):
[44] Whether the Tribunal treated itself as the person to be ‘compelled’ or the applicant as the person to be ‘compelled’ by such reasons, a conclusion by the Tribunal that it could not be satisfied the reasons which it had accepted ‘demand or rouse strong attention, interest or admiration or . . . tend to demand action’ does not seem reasonable in an administrative law sense.
…
[53] As a result of an error in construing the legislative expression, the Tribunal asked itself a wrong question: ‘Were the reasons for the absence compelling in that they "demand or rouse strong attention, interest or admiration or . . . tend to demand action"?’ If the Tribunal wished to ask the question posed by the case by reference to the ordinary meaning of ‘compelling’, the correct question was: ‘Were the reasons for the absence compelling in that they were forceful?’ In answering that question, the Tribunal would commit a mistake of law if it put a gloss on ‘forceful’ so as to exclude reasons for the absence which are forceful in that they involve moral necessity, or are convincing by reason of some forcefulness.
Returning to the Tribunal’s reasons, at par.10, it noted the Applicant’s argument/submission that r.1.20J should be construed to give effect to its intended purpose, namely “to protect women from abusive sponsors.” It observed that this was not the case here, and that, on its face, the terms of the Regulation do not support such an interpretation.
At par.11, there was a lengthy discussion about the Applicant’s current 5 year relationship with his fiancée. The Tribunal noted that the couple had lived together for 2 of these 5 years (the fiancée lives in Albania, which is where the couple resided for 2 years some years ago). It also noted that the couple speak to each other daily and that the Applicant provides financial support to his betrothed.
The Tribunal further recorded the negative impact on the Applicant’s well-being due to the uncertainty of the visa process.
To these matters, the Tribunal said (still in par.11) that
… even if a genuine and long-standing relationship … exists, the Tribunal does not consider that to be sufficient, in the circumstances of this case, to establish the existence of compelling circumstances affecting the sponsor.”
In a somewhat circular if not curious way of reasoning – given that the fiancée lives in Albania and the Applicant lives in Australia, and therefore there must reasonably be taken to be some appreciation and acknowledgement of the basic, logistical and geographical impediment between the Applicant and his fiancée that inhibits regular, closer physical proximity between them – the Tribunal said:
… Despite the longevity of their relationship, the parties had spent relatively little time together and not in the past two years. In such circumstances, the Tribunal is not satisfied that a long term genuine relationship, even if one was established, would give rise to compelling circumstances affecting the sponsor.
Par.12 of the reasons confirmed the Tribunal, on the one hand, accepted the evidence of lay witnesses that the Applicant is happier when he is with his fiancée, and that in their view, such matters constitute compelling circumstances. On the other hand, the Tribunal said that it was for the Minister, or the Tribunal, to determine what constituted compelling circumstances.
At par.13, the Tribunal said that, while it accepted that the Applicant and his fiancée provide emotional support to each other, it did not consider that the provision of emotional support was “limited to the circumstances where the parties live under the one roof, or in the same country.” However unrealistic such a view may be, quite divorced from day-to-day human experience, the Tribunal went on to state that, because the parties had been able to support each other from afar (my words), they will likely be able to do so in the future. And in any event, the Tribunal said that emotional support in and of itself did not constitute compelling circumstances. As already noted, the Tribunal did not refer to any relevant authority, including Paduano and Crennan J’s reference to “moral necessity” as a relevant consideration.
Par.14 of the AAT’s reasons dealt with (a) the Applicant’s claim(s) in relation to his poor mental health (depression and inability to sleep), and (b) the Tribunal’s comments in which it said that (i) such matters had not previously been raised, (ii) no medical evidence had been provided prior to and during the hearing (some medical evidence was provided post the hearing), and (iii) these “health issues” had arisen only during the hearing for the first time.[5]
[5] There is a clear discrepancy regarding “dates.” The date of the Transcript is 9th July 2018. The dates of the letters from Dr Thornton and the Applicant’s employer, Genuine Steel, are dated 3rd and 4th July 2018 respectively. If the date of the transcript is correct, clearly the independent evidence on behalf of the Applicant pre-dated the hearing. However, later in the hearing, the transcript records a discussion about the Applicant providing, among other things, medical evidence to support his claims. The Tribunal allowed such evidence to be provided by 9th July 2018. It would seem therefore that the date of the transcript is incorrect but there is no way for the Court to confirm this.
Pars.15 - 17 outlined the written evidence from the Applicant’s General Practitioner, Dr Thornton.[6] The Tribunal noted Dr Thornton’s opinion that the Applicant had suffered from the ailments stated for 20 years and that his professional life had been adversely affected by them. It noted that the Applicant had been referred to a psychiatrist but had not attended, for whatever reason. Further, his designated health issues were being treated by medication. Dr Thornton said that, in his view, the Applicant’s depression would improve if the Applicant’s fiancée was able to travel to and reside in Australia.
[6] Dr Thornton’s letter, dated 3rd July 2018, is at CB 549.
The Tribunal said that it viewed Dr Thornton’s report as “problematic.” It expressed concern as to the basis for the assessment that the Applicant’s well-being (my term) would necessarily improve if his fiancée were to travel to and reside in Australia with her Husband-to-be.
The Tribunal further said that it was not clear whether Dr Thornton had ever observed the couple’s interactions. For my part, such an observation or comment must surely be at least curious, if not almost surreal. The Tribunal obviously knows that the fiancée lives in Albania and the Applicant lives in Australia. The opportunities for Dr Thornton to observe the couple, as suggested by the Tribunal, must surely be realistically regarded as next to impossible. As some form of criticism of Dr Thornton, and particularly of his Report and professional opinion, in my view it was unfair and unreasonable.
At par.17, the Tribunal observed that, according to Dr Thornton, the Applicant had been suffering from the conditions named (depression and inability to sleep) for 20 years. Accordingly, it could not be said that such conditions were related to the current visa application. In its view, the Tribunal said that (a) the Applicant’s conditions were managed through medication, and (b) his health conditions did not constitute compelling circumstances. However, the Tribunal did not consider or address what alleviating or ameliorating effect the parties being married and living in the same country (Australia) would likely have on the Applicant’s health. Such evidence was plainly before the Tribunal, not only by the parties, Dr Thornton, and the Applicant’s employer, but also from the Applicant’s family.[7]
[7] See T 9 – 11; the evidence from Mr Vesi and Mr Narmani.
At pars.18 and 19, the Tribunal said that, in its view, the couple’s feelings for each other, the Applicant’s community work, and that he cannot live overseas, do not constitute compelling circumstances.
Pars.20 and 21 outlined the Applicant’s employment and the comments contained in evidence provided by way of letter from his long-time employer.[8] That letter outlined the Applicant’s significant experience and length of service to the company. At an earlier point in time, the Applicant was one of the principals of the company in a previous iteration of its existence. The letter noted that the Applicant has struggled with his mental health, and at times has managed to work only 2-3 days per week. It was the view of the Managing Director of the Company that the Applicant’s mental health would improve if his fiancée was able to come to Australia. In her view, the Applicant’s levels of stress would improve which would help his depression. In turn, this would assist him to return to full-time work, “at full capacity.”
[8] That evidence, a letter from the Managing Director of Genuine Steel, dated 4th July 2018, is at CB 551.
The Tribunal rejected this evidence, notwithstanding that this Company had had very long experience with the Applicant’s work, which presumably includes regular observations of his various capacities and demeanours. The rejection of this evidence was based on the Managing Director not having the requisite qualifications for assessing the Applicant’s mental health. However, as just noted, this relevantly ignored the long history of, and the usual, daily interaction and observations between work colleagues, such as the Applicant and the Managing Director of the Company. True it was that she did not have (and did not profess to have) any medical or health-care qualifications. However, dismissing her evidence on that basis alone would, again, ignore the quotidian reality of regular work engagement between such work colleagues.
Finally, by way of overview, at par.22, the Tribunal summarised its position, thus, including its acceptance that the Applicant and his fiancée wish to be together:
… the Tribunal has formed the view that the totality of such circumstances are not of compelling nature [sic] … The Tribunal places weight on the fact that the parties have spent little time together in the past two years.
For my part, I confess to finding the summation somewhat opaque but much else too. There was no reference to the fact that the separation of the parties was a reflection of their legal position; it was not a separation by choice. It was, presumably, a situation to be endured rather than something to which the Tribunal could properly point, saying in effect: “you have survived this long, what’s the problem?”. If some other meaning was intended by the Tribunal in this regard it should have said so.
Moreover, it is precisely their enforced separation that has compelled the Applicant to seek relief from the Court in circumstances where the Tribunal actually relied upon the separation – about which the betrothed parties can legally do nothing at the moment – as a basis for refusing relief. Respectfully, the circularity and disconnect at the same time in the Tribunal’s reasoning is, at least, remarkable if not astonishing.
Grounds of Review
As set out in the Applicant’s Amended Application, filed on 28th February 2019, the [amended] Grounds of Review were as follows:
1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the phrase “compelling circumstances” in 1.20J of the Migration Regulations 1994 (Cth).
Particulars
1.1. The Tribunal adopted an inappropriately narrow understanding of the scope of the term “compelling circumstances” in 1.20J.
1.2. The purpose of the discretion in 1.20J is to give a decision maker greater flexibility if and when compelling circumstances arise and to avoid hardship to applicants (please see Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 at [18]).
1.3. The correct construction of 1.20J is that it requires a "facilitating" approach to be taken rather than a "barring" approach.
1.4. The Tribunal erred in its construction of 1.20J as it took a "barring" approach, while 1.20J in fact facilitates an exception to be made in compelling circumstances.
2. The Tribunal committed a jurisdictional error in that the standard of interpretation was such that the applicant could not adequately put his case before the Tribunal
Particulars
2.1. The first interpreter for the hearing on 27 June 2018 was offsite and provided his interpreting service over the phone.
2.2. Having an offsite interpreter led to a great deal of confusion, as the interpreter often didn't know who was speaking.
2.3. The transcript from this portion of the hearing clearly reveals how inadequate the interpretation was.
2.4. The interpreter’s services were terminated, requiring the matter to be adjourned and an onsite interpreter to be retained.
2.6. The applicant stated that “there’s no real word in Albanian for depression” and “as far as I know, compelling, there’s no real word in Albanian that means compelling.”
2.7. The applicant invited the Tribunal member to “ask the interpreter that, if you like”, but the Tribunal did not take up this suggestion.
2.8. The confusion caused by the offsite telephone interpretation was a consequential error in translation;
2.9. The inability to translate the word "compelling" into Albanian was extremely consequential in circumstances where the applicant's prospects of success hinged on him being able to establish "compelling circumstances". Likewise, the applicant’s depression was extremely important to him being able to make his case, and it was important for this word to be translated appropriately.
4. The Tribunal committed a jurisdictional error by making an adverse finding in regards to the applicant's health issues on the basis that it was raised for the first time at the hearing.
Particulars
4.1. At [14] of the decision record, the Tribunal stated: ". . . The claim of depression and poor health was raised for the first time during the Tribunal hearing, despite multiple written submissions that the review applicant has made to the delegate and the Tribunal and despite the review applicant being represented by a migration agent throughout this review."
4.2. The transcript also seems to indicate that the Tribunal made nine references to this evidence regarding the applicant's depression and health only been raised at the hearing.
4.3. However section 55(1) of the Migration Act 1958 (Cth) provides as follows:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
5. The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it and misstating the applicant's submissions.
Particulars
5.1. At [10] of the decision record, the Tribunal claimed that "[t]he review applicant's representative submits that the purpose of the sponsorship limitations is to protect women from abusive sponsors and this is not the case here."
5.2. The Tribunal went on to state that "There is nothing in the wording of that provision to indicate that the sponsorship limitation does not apply if there was no abusive relationship or if it was the visa applicant, rather than the sponsor, who caused the relationship breakdown."
5.3. However the Tribunal misstated the applicant's representative's submissions. Mrs Le in fact submitted that the purpose of the sponsorship limitations was to both protect women from abusive sponsors and protect the system for being abused, neither of which applied to the applicant's situation.
5.4. The Tribunal's decision record does not demonstrate that it engaged in an active intellectual process directed at this claim, nor does it demonstrate any engagement with this submission.
6. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
6.1. The Tribunal's treatment of the medical report from the Langton Medical Centre, dated 2 July 2018, prepared by Dr Thornton (referred to at para [15-17] of the decision record), was unreasonable.
6.2. The Tribunal's treatment of the statement from the “Managing Director / HR of the review applicant’s employer” (referred to at para [21] of the decision record) was unreasonable.
6.3. It was also unreasonable and unfair in the ordinary sense that the Tribunal did not ensure that Ms Qose understood the phrase “compelling” or “depression” after the applicant stated that “there’s no real word in Albanian for depression” and “as far as I know, compelling, there’s no real word in Albanian that means compelling.”.
6.4. The applicant invited the Tribunal member to “ask the interpreter that, if you like”, and it was unreasonable for the Tribunal not to
6.5. It was also unreasonable for the Tribunal to dismiss the applicant’s evidence of poor mental health because it was first raised at the hearing, particularly considering that each of the witnesses provided evidence of the applicant’s mental health.
The Applicant’s Submissions
The Applicant’s Submissions, filed 28th February 2019, were as follows:
1. The applicant is seeking review of the decision of the Second Respondent (Administrative Appeals Tribunal or AAT), dated 9 July 2018, affirming a decision of a delegate of the First Respondent (Minister) not to grant the applicants Prospective Marriage (Temporary) (Class TO) visas.
Grounds of judicial review
2. The applicant previously filed an application for judicial review on 10 August 2018. The applicant subsequently filed an amended application on 28 February 2019, and the applicant seeks this Honourable Court's leave to rely upon this amended application. The amended application relies on the same grounds as the initial application, except that the applicant no longer wishes to pursue the previous third ground. However, the particulars of the amended application have been amended in light of the transcript of the AAT hearing. The applicant also seeks this Honourable Court’s leave to rely on an affidavit sworn by the applicant’s legal representative and filed on 28 February 2019 annexing the transcript for the AAT hearing for this matter. The grounds of review relied upon by the applicant are as follows:
1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the phrase “compelling circumstances” in 1.20J of the Migration Regulations 1994 (Cth).
2. The Tribunal committed a jurisdictional error in that the standard of translation was such that the applicant could not adequately put his case before the Tribunal.
3. This ground is no longer pursued.
4. The Tribunal committed a jurisdictional error by making an adverse finding in regards to the applicant's health issues on the basis that it was raised for the first time at the hearing
5. The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it and misstating the applicant's submissions.
6. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Submissions
Ground 1
3. It is submitted that Tribunal fell into jurisdictional error by misconstruing or misapplying the phrase “compelling circumstances” in 1.20J of the Migration Regulations 1994 (Cth).
4. Regulation 1.20J(2) of the Migration Regulations provides as follows:
“(2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.”
5. Robertson J’s comments in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 are helpful in determining how regulation 1.20J should be constructed. Robert J stated at [18] as follows:
Further, if, as I accept, the purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant, then to my mind it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. . .
6. It is submitted that it should be remembered that the purpose of the discretion in 1.20J, like cl 820.211(2)(d)(ii), is to give a decision maker greater flexibility if and when compelling circumstances arise and to avoid hardship to applicants. As such the correct construction of 1.20J is that it requires a "facilitating" approach to be taken rather than a "barring" approach to this discretionary power.
7. However the Tribunal adopted an inappropriately narrow understanding of the scope of the term “compelling circumstances” in 1.20J. It is submitted that the Tribunal took a "barring" approach, while 1.20J in fact facilitates an exception to be made in compelling circumstances.
8. The Tribunal’s reasoning clearly suggests that it took a barring approach and the Tribunal seems to dismiss material that should really have been taken into account in deciding whether there were “compelling circumstances”. For example, at paragraph [10] of the decisions record, the Tribunal stated: “There is nothing in the wording of that provision to indicate that the sponsorship’s limitation does not apply if there was no abusive relationship or if it was the visa applicant, rather than the sponsor, who cause the relationship breakdown.”
9. However, the Tribunal made a jurisdictional error by simply dismissing there factors instead of considering whether they reached the bar of being “compelling circumstances”. It is clear from the transcript that this was what Mrs Marion Le AM was asking the Tribunal to do.
MEMBER: But if you look at the working of 120J, there is nothing in there about abusive relationships or protection of visa applicants, it simply says two previous sponsorships will lead to a sponsorship limitation. That may have been the purpose of it, but it’s not clear from the wording of regulation 120.
MS LE: No, it’s not, Member, but that is the answer to that legislation. And what I’m saying is, here, that we’re looking at, what is the compelling situation? What is compelling, is that the person here doing the sponsorship is going to be affected, negatively, and by what happened as a result of this hearing. . . (page 14, line 9-21).
10. The applicant submits that circumstances such as how the last relationship broke down and whether or not there was abuse should have been considered in determining whether there were exceptional circumstances rather than being dismissed outright because they are not specifically mentioned in the “wording of that provision.”
Ground 2
11. The applicant’s second ground is that the Tribunal committed a jurisdictional error in that the standard of interpretation was such that the applicant could not adequately put his case before the Tribunal.
12. The first interpreter for the hearing on 27 June 2018 was offsite and provided his interpretation service over the phone. Having an offsite interpreter led to a great deal of confusion, as the interpreter often didn't know who was speaking. The transcript from this portion of the hearing clearly reveals how inadequate the interpretation was.
13. Page 3, lines 21 to page 6, line 29 of the transcript shows that the hearing was infested with interpretation problems and misunderstandings. The following quotes from the interpreter showed that he was clearly confused: “I’m sorry, I didn’t quite get this one” (page 3 line 21), “Excuse me?”(page 3 line 28, “Hello?” (page 3 line 32), “Hello?” (page 3 line 41), “Hello? Hello, I can hear you now, yes” (page 3 line 46), “Hello? I’m sorry what is the question? Hello?” (page 4, line 14), “Member, I think that – sorry, I think the problem is that it’s just too complex (indistinct) about the situation.” (page 4 line 28-29), “We met on 26 August 2013. Hello?” (p 4, line 47), “The day was a rainy day and I got scared. Hello?” (page 5, line 22), “Hello?” (page 5, line 45).
14. The following comments from the member also portray a confusing scene: “Mr Abazi, I’m not sure whether this is going anywhere or whether this is very helpful.” (page 4 line 17-17), “Sorry, Interpreter, you need to interpret.” (page 5, line 37), “Interpreter? Interpreter, are you there?” (page 5, line 43), “Sorry, Interpreter, are you there? Mr Abazi, I’m not going to go ahead with that. If you think I need to speak to your fiancé, then we will come back and we will probably try to get an interpreter in person, because I don’t think it’s going anywhere.” (page 6, line 1-4)
15. The applicant also expressed his concern during the hearing when he told the member “The interpreter hasn’t actually explained to her what you’re telling her to say” (page 4, line 25-26).
16. Finally, the following exchange places the interpretation in a very poor light:
MEMBER:. . . But I don’t think this is going anywhere. So, are you okay for me to hang up then?
MR ABAZI: Yes. I really don’t think she understood the question.
MEMBER: I don’t think so either, but I don’t think we can help that, because this is obviously not working very well. (page 6, line 23-29)
17. Later on in the hearing the applicant stated that “there’s no real word in Albanian for depression” (page 21, line 28-29) and “as far as I know, compelling, there’s no real word in Albanian that means compelling. So, you have to find another way to explain it and I think the interpreter did a pretty good job on that.” (page 21, line 29-33). The applicant invited the Tribunal member to “ask the interpreter that, if you like” (page 21, line 37-38), but the Member did not take up this suggestion.
18. This inability to translate the word "compelling" into Albanian was extremely consequential in circumstances where the applicant's prospects of success hinged on him being able to establish "compelling circumstances". Likewise, the applicant’s depression was extremely important to him being able to make his case, and as such, it was really important that these words were appropriate interpreted, even if it took more time. It is submitted that the Member should have taken steps to ensure that nothing was lost in translation in regards to Ms Qose’s evidence.
19. The test of whether interpretation errors amount to a jurisdictional error is whether the interpretation before the Tribunal is so inaccurate that it could be said that the applicant could not really put his case to the Tribunal. Case law shows that there is no jurisdictional error if the errors in translation are minor. For example. in Applicant NOAR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1074, the applicant was appealing a refusal for a protection visa. The Refugee Review Tribunal refused the application as they were not satisfied that the applicant faced persecution in Cyprus. The applicant claimed that the standard of the interpretation was substandard, and that the standard of interpretation amounted to jurisdictional error. The Court held that the errors in interpretation were minor and not relevant to the exercise of the Tribunal’s jurisdiction and the appeal was dismissed.
20. However Hill J referenced Craig v State of South Australia (1995) 184 CLR 163 (a case that discussed certiorari as a remedy to correct issues to do with court record), and noted that he was ‘prepared to accept that a jurisdictional error like the kind contemplated in Craig could arise where the translation before the Tribunal was so inaccurate that it could be said that the appellant was not really able to put his case to the Tribunal.’ Hill J also remarked that it was not necessary to determine whether the proper basis of jurisdictional error would be a denial of natural justice or some other ground.
21. In this case, Hill J thought it evident that many of the interpretation errors are totally inconsequential. Two errors in particular were pointed out as particularly significant, but Hill J said that it was the cumulative effect of all the errors that should be taken into account. The two errors were as follows:
22. ‘Orgut’ in Turkish means literally ‘organisation,’ but had gained the connotation of ‘illegal organisation.’ The Tribunal member asked whether the appellant was a member of an ‘organisation,’ and the interpreter used ‘orgut,’ thereby possibly leading the appellant to answer in the negative that he did not belong to an illegal organisation. The appellant may have otherwise answered yes, that he was a member of a legal organisation. Hill J notes here that this fault in translation was not so significant that it would cause the Tribunal proceedings to miscarry.
23. Mistranslation of a Turkish word translated as ‘fanatic,’ but when properly translated meant ‘nationalist.’ Here, the appellant claimed to fear persecution from a group supported by the Turkish police and state, and so the claim was clearly understood by the Tribunal, even if the particular characteristic of the group had been mistranslated.
24. This current matter can be distinguished from Applicant NOAR of 2002 in that 1) when the cumulative effect of all the errors are taken into account, they are substantial; and 2) the ability to translate the word “compelling” into Albanian was so central to the applicant being able to present his case, and the ability to translate “depression” was important, so that without an accurate interpretation of these words, the applicant was not really able to put his case to the Tribunal.
Ground 3
25. The third ground is no longer pursued by the applicant.
Ground 4
26. The fourth ground is that the Tribunal committed a jurisdictional error by making an adverse finding in regards to the applicant's health issues on the basis that it was raised for the first time at the hearing. It is also submitted that this reasoning was legally unreasonable. As such the reasoning here is also relevant to ground 6.
27. Section 55(1) of the Migration Act 1958 (Cth) provides as follows:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
28. At [14] of the decision record, the Tribunal stated: ". . . The claim of depression and poor health was raised for the first time during the Tribunal hearing, despite multiple written submissions that the review applicant has made to the delegate and the Tribunal and despite the review applicant being represented by a migration agent throughout this review."
29. The transcript also seems to indicate that the Tribunal made nine references to this evidence regarding the applicants depression and health only been raised at the hearing namely:
“Is there any medical evidence of that [the applicant suffers from depression], because I don’t believe you have provided any to the tribunal?” (page 7, line 43-44);
“Well, it’s helpful, Mr Abazi, when you make submissions, to actually support them with information. . . “ (page 8, line 1-2),
“. . . should have provided it to the tribunal before today.” (page 11, line 46-47, restated page 12, line 3-6);
“. . . It’s probably not as helpful for me to hear evidence for the first time in a hearing. . . it may have been a little bit more helpful for the tribunal if I did have all of that information and certainly, the medical evidence, before the hearing, that probably would have helped a fair bit.” (page 15, line 24 – 31);
“That may not be sufficient and when you do have other evidence, which came up during the hearing, I would have liked to have seen that before the hearing, obviously, rather than hear it for the first time at hearing.” (page 16, line 6-9);
“Mr Abazi, I must say, I find it quite extraordinary that the first time that I’m hearing about your health issues is halfway through this hearing when this case has been with the tribunal for two years and you’ve sent me lots of different submissions, none of which refer to your health issues” (page 20, line 13-16);
“My concern is that you’re raising it now rather than in the past two years.” (page 20, line 25)
Ground 5
30. The fifth ground is that the Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it and misstating the applicant's submissions.
31. At [10] of the decision record, the Tribunal claimed that "[t]he review applicant's representative submits that the purpose of the sponsorship limitations is to protect women from abusive sponsors and this is not the case here."
32. The Tribunal went on to state that "There is nothing in the wording of that provision to indicate that the sponsorship limitation does not apply if there was no abusive relationship or if it was the visa applicant, rather than the sponsor, who caused the relationship breakdown."
33. However the Tribunal misstated the applicant's representative's submissions. Mrs Le in fact submitted that the purpose of the sponsorship limitations was to both protect women from abusive sponsors and protect the system for being abused, neither of which applied to the applicant's situation.
34. Furthermore, the Authority fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to whether there were compelling circumstances. In this regard, this ground overlaps with ground 2, and the applicant’s submissions in regards to that ground are also relevant here.
35. The Authority’s finding in this regard was not based on evidence, nor did it demonstrate any engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process. In making this finding with no evidence outlined to support it, the Authority failed to give “proper genuine and / or realistic consideration” to the matter before it. The requirement for a decision-maker to give “proper genuine and / or realistic consideration” to the matter before it was summarised in para [45] of Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Griffiths, White and Bromwich JJ) as requiring the decision-maker to “engage in an active intellectual process directed at” the relevant claim or criteria.
36. The Tribunal's decision record does not demonstrate that it engaged in an active intellectual process directed at this claim, nor does it demonstrate any engagement with this submission.
Ground 6
37. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
38. It is submitted that the Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such, exhibited Li unreasonableness (please see Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18). Li unreasonableness is based on the principle that unreasonableness is related to rationality and logicality.
39. The test for legal unreasonableness is whether the Tribunal’s state of satisfaction is one “which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] and [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) or that the decision was “arbitrary, capricious or clearly unjust” and lacks “evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ).
40. In Li, that Honourable Court also stated, in the joint judgment of Hayne, Kiefel and Bell JJ that “… the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognize that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified” (at [68]). The Court should be “slow, although not unwilling, to interfere in an appropriate case”.
41. In addition to SZMDS and Li, there is also detailed discussion of legal unreasonableness in the more recent Full Court decisions of Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. At [67] of CRY16, the Full Court stated:
“. . . in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.”
42. The Tribunal's treatment of the medical report from the Langton Medical Centre, dated 2 July 2018, prepared by Dr Thornton (referred to at para [15-17] of the decision record), was unreasonable and was unfair “in an ordinary sense”.
43. The Tribunal's treatment of the statement from the “Managing Director / HR of the review applicant’s employer” (referred to at para [21] of the decision record) was also unreasonable.
44. It was also unreasonable and unfair in the ordinary sense that the Tribunal did not ensure that Ms Qose understood the phrase “compelling” or “depression” after the applicant stated that “there’s no real word in Albanian for depression” (page 21, line 28-29) and “as far as I know, compelling, there’s no real word in Albanian that means compelling.” (page 21, line 29-30). The applicant invited the Tribunal member to “ask the interpreter that, if you like” (page 21, line 37-38), and it was unreasonable for the Tribunal not to
45. It was also unreasonable for the Tribunal to dismiss the applicant’s evidence of poor mental health because it was first raised at the hearing. In regards to this ground, the applicant’s submissions in regards to ground 4 are also relevant. In addition to the points already made, it is further noted that each of the witnesses provided evidence of the applicant’s mental health, which it is submitted should have been taken into account, and weighed appropriately, rather than just dismissed because it came to light at the hearing.
46. For example, Mr Veizi stated that if the Ms Qose was here with the applicant, then “he would be a lot healthier and a lot better. He wouldn’t have the insomnia or depression. . . “ (page 9, line 35-36).
47. Likewise Mr Lumani stated that the applicant was not having “very wellbeing at the moment” [sic] (page 10, line 36), “he doesn’t seem himself to me” (page 10, line 46-67), and that when the applicant and Ms Qose are not together he is “not very happy and he’s more isolated” (page 11, line 14).
48. Ms Qose also gave significant evidence of the applicant’s poor mental health, including that the applicant “is on medication because we are not together and this is harming us.” (page 18, line 44-45), that he is “upset” (page 18, line 18) “not well” (page 18, line 18) “on medication” (page 18, line 20), “We want to be reunited so that he can improve his health” (page 18, line 20-21) and he “doesn’t even go regularly to work because of the situation. (page 18, line 20)
49. Ms Gose continues; “he goes to doctor, he has issues sleeping” (page 18, line 26), “doctor has prescribed him medication” (page 18, line 26-27).
50. Surprisingly, despite this list of health issues, the Member then asks “Apart from issues with sleeping, does he have any other health issues?” (page 18, line 29-30), and then again “Is that the only issue that your partner has?” (page 18, line 41).
51. The Tribunal’s treatment of this issue was unreasonable.
Conclusion
52. The application should be allowed with costs.
The First Respondent’s Submissions
The First Respondent’s Submissions, filed 12th March 2019, were as follows (emphasis in original):
1. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 9 July 2018 (CB 573 to 578), by which it affirmed a decision by a delegate of the First Respondent (Delegate) to refuse to grant the Visa Applicant a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa (Prospective Marriage visa) under s 65 of the Migration Act 1958 (Cth) (Act) (CB 467 to 472).
2. These submissions are filed in accordance with the Orders made by this Court on 17 September 2018. The Orders also required that the Applicant file and serve any affidavit containing additional evidence relied upon and any amended application by 12 November 2018. On 28 February 2019, the Applicant filed an amended application (amended application) and sought leave to file the Affidavit of Sean Kikkert filed on 28 February 2019.
3. These submissions respond to the amended application.
4. The Minister submits that the Application does not establish jurisdictional error and for the reasons that follow, the Application ought to be dismissed with costs.
Background
5. The Visa Applicant, a citizen of Albania, applied for a Prospective Marriage visa on the basis of her relationship with the Applicant, the sponsor. Prior to this application, the Applicant had previously sponsored two other people for Partner visa applications to Australia (CB 469 to 470).
6. On 27 May 2016, a delegate of the Minister refused the application on the basis that the Applicant had previously sponsored two other people and the delegate was not satisfied that there were compelling circumstances so as to waive the sponsorship limitation set out in regulation 1.20J of the Migration Regulations 1994 (the Regulations). The delegate found that subclause 300.222 of Schedule 2 to the Regulations could not be met as the sponsorship of the visa applicant had not been approved.
7. The Applicant applied for review of the decision to the Tribunal and attached a copy of the delegate's decision (CB 473 to 490). The Applicant appointed a migration agent, Marion Le, as his Authorised Representative.
8. The Applicant appeared before the Tribunal, assisted by his Authorised Representative on 27 June 2018. The Tribunal also received oral evidence from the Visa Applicant, and the Applicant's family.
9. On 6 July 2018, the Applicant's Authorised Representative provided the Tribunal with a National Police Certificate, medical records and character reference statements in respect of the Applicant (CB 545 to 562).
10. On 8 July 2018, the Applicant's Authorised Representative provided the Tribunal with post hearing submissions in relation to the compelling circumstances (CB 563 to 570).
11. On 9 July 2018 the Tribunal affirmed the decision on review (CB 573 to 578), on the basis that the Tribunal did not approve the sponsorship under r 1.20J of the Regulations because the Tribunal was not satisfied that there were compelling circumstances affecting the Applicant under r 1.20J for the purpose of clause 300.222 (at [23]).
Grounds of review
12. The Applicant's grounds of review in the amended application are as follows:
1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the phrase "compelling circumstances" in 1.20J of the Migration Regulations 1994 (Cth).
2. The Tribunal committed a jurisdictional error in that the standard of
translationinterpretation was such that the applicant could not adequately put his case before the Tribunal.3. The Tribunal fell into jurisdictional error by failing to consider the reading speeches and explanatory memorandum (EM) relating to 1.20J of the Migration Regulations 1994 (Cth) after the applicant's migration agent requested the Tribunal to have regard to it.4. The Tribunal committed a jurisdictional error by making an adverse finding in regards to the applicant's health issues on the basis that it was raised for the first time at the hearing.
5. The Tribunal fell into jurisdictional error by failing to give "proper genuine and / or realistic consideration" to matters before it and misstating the applicant's submissions.
6. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Consideration
Ground 1
13. The Applicant asserts that the Tribunal fell into jurisdictional error by misconstruing or misapplying the phrase "compelling circumstances" in 1.20J of the Regulations.
14. Regulation 1.20J(1) places a limitation on the number of spouse, partner, prospective marriage or interdependency visas a person can sponsor. However, sub-regulation 1.20J(2) confers a discretion on the Minister to allow further sponsorship applications if "the Minister is satisfied that there are compelling circumstances affecting the sponsor".
15. The phrase "compelling circumstances" is not defined by the Act or Regulations. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [31] (per French, CJ, Bell, Keane ad Gordon JJ), which concerned the phrase "compelling reasons", their Honours observed:
. . .the state of mind required of the Minister (or a delegate) must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision maker"[13 - Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at 289 [21]], "irresistibly"[14 - Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 at 211 [32], 213 [37]] to be satisfied that "special consideration" should be given to granting the particular application.
16. In the present case, the Tribunal was required to determine whether, at the time of its decision, there were "compelling circumstances affecting the sponsor" such that it was persuaded that the limitation in regulation 1.20J should not apply.
17. The First Respondent submits that the Tribunal correctly had regard to the following circumstances that the Applicant claimed constituted compelling circumstances and made the following findings in support of its ultimate conclusion that there were not compelling circumstances affecting the sponsor (at [22] to [23]):
i.The nature of the Applicant's prior relationships and the circumstances in which they ended but found that there was nothing compelling about the circumstances about the breakdown of those relationships (noting that his record and shortest relationship had broken down as a result of a lack of trust) ([9]-[10]);
ii.The nature of the relationship between the Applicant and Visa Applicant (at [11]-[12] and [19]) - the Applicant claimed that they had been in a relationship for 5 years and lived together for 2 years and that they "love each other very much". He claimed that they spoke daily and that he provides financial support. Evidence of communication between the Applicant and Visa Applicant was provided as well as evidence of financial contributions of the Applicant. Both parties gave evidence as to the nature of their relationship. The Applicant stated that he had not visited the Visa Applicant for 2 years and that the uncertainty of the application process was having an effect upon him.
iii.The Tribunal noted that despite the longevity of the relationship, the parties had spent little time together. Notwithstanding this observation, the Tribunal was prepared to proceed on the basis that a relationship was in existence and accepted that the parties loved each other, however was not satisfied that the existence of this relationship gave rise to compelling circumstances affecting the Applicant (at [11]-[12]).
iv.The Applicant's happiness, the emotional support offered by the Visa Applicant and the Applicant's health (at [12]-[14]). The Applicant's cousin and nephew claimed that the Applicant is happier when he is with the Visa Applicant.
v.The Tribunal was not satisfied that these factors constituted compelling circumstances because:
1.the Visa Applicant provided the Applicant with emotional support despite the fact that the Applicant and Visa Applicant resided in different countries and had not seen one another for two years. The Tribunal observed that the parties ability to support one another in the past indicated that this support would continue in the future (at [11]);
2.the Applicant's mental health condition was not, in the Tribunal's opinion, of "such nature or severity as to give rise to compelling circumstances" (at [17]). The Tribunal had regard to medical evidence provided after the hearing and accorded it limited probative value as it was not clear that the doctor was familiar with the circumstances of the relationship and it appeared that the Applicant's condition was well-managed and that his condition would not deteriorate if the Visa Applicant could not join him in Australia (at [22]). The First Respondent submits that it was a matter for the Tribunal to assess the Applicant's material and accord the weight it considered appropriate in determining the existence of compelling circumstances. The Tribunal was not bound to accept that the Applicant's health in this case constituted a compelling circumstance.
vi.The Tribunal also referred to evidence provided by the human resources manager at the Applicant's employer which stated that his stress and depression would improve if the Visa Applicant relocated to Australia. The Tribunal observed that the HR manager was not appropriately qualified to make this assessment and for this reason, this evidence did not assist the Applicant (at [21]).
vii.Further, the Tribunal took into account the Applicant's claim to be happier with the Visa Applicant in Australia and the circumstances of his prior relationship breakdowns (at [22]).
viii.The ability of the Applicant to relocate to Albania - the Applicant claimed his community and employment commitments precluded him from moving overseas.
ix.The Tribunal accepted that the Applicant may find it difficult to relocate (at [19]) but that his company would be in a position to find a replacement such that he was not obliged to continue working if he wished to move overseas (at [20] and [22]).
18. The First Respondent submits that it was reasonably open to the Tribunal to conclude that it was not satisfied that compelling circumstances existed for the reasons it gave based on the evidence before it. The Tribunal clearly had regard all to the Applicant's claims and was not persuaded that those claims were sufficient to rise to compelling circumstances to not apply regulation 1.20J(1). The assessment of the cogency and weight of evidence is a matter for the Tribunal: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15].
19. For completeness, the First Respondent notes:
a.the Applicant asserts, unsupported by authority, that the Tribunal took a "barring" approach rather than a "facilitating approach". The First Respondent asserts, as outlined above, that the Tribunal performed its statutory task. The weight it afforded to the Applicant's various claims and the approach it took in weighing claims and evidence was a matter for it. There is no authority cited to support the proposition that the Tribunal's approach was unlawful in any way (and it is apparent it considered the Applicant's claims "singularly and cumulatively" (at [22]);
b.the Applicant cites Waensila v MIBP [2016] FCAFC 32 (Waensila) in support of this ground. Waensila was concerned with the construction of the phrase "compelling reasons". At paragraph [18] of Waensila, the Full Federal Court found that circumstances arising after the date of the visa application can constitute "compelling reasons" for not applying the Schedule 3 criteria (see also Babicci v MIMIA (2005) 141 FCR 285 at [24]). In light of the above summary of the evidence and claims considered by the Tribunal as evidenced by its decision record, it is apparent that the Tribunal in this matter did not err in the manner identified in Waensila at [18] as the Tribunal did not confine its consideration of relevant circumstances to those that existed at the time of the application. Rather, it had regard to all matters that could be said to comprise such circumstances; and
c.the Applicant asserts that the Tribunal should have considered circumstances such as how the Applicant's previous relationships broke down rather than dismissing the claims "outright". However, the First Respondent submits that the Tribunal did acknowledge the circumstances of the previous relationship breakdowns (at [9]) but ultimately found that the totality of the Applicant's circumstances were not compelling in nature (at [22]). That was a conclusion that was open to it on the evidence.
20. The First Respondent submits that ground one cannot be made out.
Ground 2
21. In summary, the particulars to ground two state that the standard of interpretation for the hearing on 27 June 2018 was such that the Applicant could not adequately put his case before the Tribunal because:
a.the first interpreter was offsite and appeared over the phone, which caused confusion and often the interpreter didn’t know who was speaking;
b.the interpreter's services were terminated and the matter had to be adjourned for the onsite interpreter to be retained;
c.the confusion caused by the offsite interpreter was a "consequential" error in translation;
d.the interpreters were unable to translate the word "compelling" as there is no equivalent Albanian word;
e.the Applicant stated that "there's no real word in Albanian for depression" and "as far as I know, compelling, there's no real word in Albanian that means compelling"; and
f.the Applicant invited the Tribunal member to "ask the interpreter that, if you like", but the Tribunal did not take up this suggestion.
22. Whether an inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with section 425 (or relevantly section 360) involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).
23. The Applicant has provided an extract of the transcript of the Tribunal hearing. The First Respondent submits that the transcript reveals that the Tribunal recognised that there were difficulties with the interpretation that was being undertaken via the telephone (see extract of transcript p 5 line 37 to line 45) that it then took the following steps to ensure the Visa Applicant had access to adequate interpretation during her evidence:
a.asked the first interpreter to stop providing interpretation services (see extract of transcript p 6 line 1 to line 5);
b.asked the Applicant whether he would like the Visa Applicant to give evidence relevant to the point of compelling circumstances and when the Applicant responded "yes", the Senior Member said that the Tribunal would get an interpreter to appear in person (see extract of transcript p 6 line 18 to line 41);
c.offered to adjourn the hearing to another day if an interpreter could not be arranged to assist the Visa Applicant on the day of the hearing (see extract of transcript p 6 line 33 to line 34);
d.adjourned the hearing on that day for half an hour to attempt to locate an interpreter (see extract of transcript p 16 line 16 to p 17 line 10); and
e.organised an interpreter to appear at the Tribunal in person to assist the Visa Applicant to give oral evidence (see extract of transcript p 17 line 19 to line 32);
24. In particular, the First Respondent submits that during the Visa Applicant's evidence, the Senior Member:
a.asked on four occasions whether there were any compelling circumstances, to which the Visa Applicant provided a response (see extract of transcript p 18 line 9 to line 45); and
b.asked specifically about the Applicant's health issue (see extract of transcript p 19 line 5 to line 46).
25. The First Respondent submits that the transcript reveals that entirely adequate interpretation was provided to facilitate the Visa Applicant's participation in the hearing as the Visa Applicant was given every opportunity to provide relevant evidence on the issue of the existence of "compelling circumstances".
26. The First Respondent submits that notwithstanding initial interpretation issues, when the conduct of the hearing as a whole is considered it is not sustainable to argue that the Tribunal conducted the hearing in a way which could be construed by the Court as depriving the Applicant of an opportunity to be heard.
27. The First Respondent submits that not every departure from the standard of interpretation preferred denies an applicant the opportunity to a hearing so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 (Perera) at [38], [45]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (Waco) at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 109 a [72] to [73] (Buchanan J).
28. The standard of interpretation is not required to be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26] to [29]; WACO at [66].
29. In circumstances where the Applicant was;
a.represented by a Migration Agent at the hearing (see hearing record and [3] of the Tribunal's reasons);
b.where the Migration Agent does not appear to have raised any issue regarding the interpretation at the hearing;
c.the Applicant acknowledged the translator did a "good job";
d.the Visa Applicant gave evidence on matters that may have gone to the existence of "compelling circumstances";
the First Respondent submits that the Tribunal cannot be said to have erred in the way described. Certainly, there is no evidence to suggest that the interpreters did not translate the word 'compelling' as accurately as the language permits.
30. The First Respondent submits that ground two cannot be made out.
Ground 3
31. The First Respondent notes that the Applicant no longer wishes to press ground 3 (see: amended application).
Ground 4
32. By ground 4, the Applicant asserts that the Tribunal erred by making an adverse finding, in relation to the Applicant's health issues, on the basis that this issue was raised for the first time at the hearing. The particulars to ground 4 refer to the Tribunal's reasons at paragraph [14], where the Tribunal stated that 'the claim of depression and poor health was raised for the first time during the hearing, despite multiple written submissions… and despite the review application being represented by a migration agent throughout this review'. The particulars go on to refer to section 55(1) of the Act and state that until the decision the Minister must have regard to any relevant information provided by the Applicant.
33. The Tribunal noted that the Applicant's health claims were not made throughout the primary processing of the application and that prior to the hearing no medical evidence had been presented (at [14]). These observations were correct. However, the Tribunal afforded the Applicant an opportunity to submit medical evidence following the conclusion of the hearing in order to ensure that all available evidence was considered (see transcript pp 22- 23). The Authorised Representative then provided two post hearing submissions accompanied by medical evidence relating to the Applicant's health claims (CB 543 to 570).
34. The Tribunal went on to consider the medical evidence that was provided by the Applicant's representative. The Tribunal identified concerns about the medical evidence that was provided and found Doctor Thornton's report to be problematic (at [16]). The First Respondent submits that the Tribunal's findings about the Applicant's medical condition were open to it in the circumstances and that the Tribunal was not obliged to give the Applicant a running commentary as to its assessment of his own evidence: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [48].
35. To the extent that the Applicant claims that the Tribunal placed inappropriate weight on the Applicant's evidence when assessing his claims, the assessment of the cogency and weight of evidence is a matter for the Tribunal: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15].
36. The First Respondent submits that ground 4 cannot be made out.
Ground 5
37. Ground 5 of the amended application states that the Tribunal fell into jurisdictional error by failing to give proper genuine consideration to the Applicant's submissions, specifically in relation to the Tribunal's findings at [10]. The Applicant claims that the Tribunal misstated the Applicant's representative's submissions and this demonstrates that the Tribunal did not engage with the submission.
38. The First Respondent considers this ground appears to be an assertion that the Tribunal should have accepted the Applicant’s claims about the Applicant's blamelessness in his prior relationship breakdown and, because the Tribunal did not conclude that this circumstance was "compelling", the decision was incorrect or unjust. However, the Court is not concerned with the merits of the decision rather whether it was lawfully made. As Brennan J held in in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39]:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
39. The First Respondent submits that it was for the Applicant to shape the Tribunal's consideration of relevant matters; it was not for the Tribunal to articulate a case on behalf of the applicant that he did not advance: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [83].
40. Insofar as the Tribunal did misstate the Applicant's assertion about the purpose of regulation 1.20J, we do not consider this would amount to a jurisdictional error in circumstances where the Tribunal identified and applied the correct wording in regulation 1.20J.
41. The Applicant cites Carrascalao v MIBP [2017] FCAFC 107 (Carrascalo) in support of this ground. Carrascalao was concerned with whether the respondent gave proper, genuine and realistic consideration to the merits of the case in determining whether or not to cancel a visa under s 501(3) of the Migration Act 1954. At paragraph [45] of Carrascalo, the Full Federal Court found that engaging in an active intellectual process directed at each individual claim or criteria does not require the decision maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria and that the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 14, per Stone, Foster and Nicholas JJ at [63] and Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316 per Foster J at [62]).
42. The First Respondent submits that the Tribunal in this case did in fact engage with the Applicant's submissions regarding the purpose of the sponsorship limitations and actively considered the circumstances of the breakdown of the Applicant's previous relationships but ultimately, and in the First Respondent's view, correctly, concluded that the reasons for the relationship breakdowns in this case did not constitute compelling circumstances (at [10] and [22]).
43. The First Respondent submits that ground five cannot be made out.
Ground 6
44. Ground 6 to the amended application states that the Tribunal's decision lacked an evident and intelligible justification and was legally unreasonable.
45. In MIBP v Singh (2014) 308 ALR 280 (Singh), the Court acknowledged that any assessment of "reasonableness" would inevitably depend on the facts of the case: Singh at [48]. The Court further noted the approach of French CJ and Gageler J in MIBP v Li (2013) 249 CLR 332 (Li) when assessing the "reasonableness" of an exercise of discretion. Specifically, the Court held that a Tribunal will exercise a discretionary power unreasonably where it makes a choice "that is arbitrary, capricious or without 'common sense'": Singh at [44]; see also Li at [28] (French CJ), [105] - [113] (Gageler J).
46. The particulars to this ground refer to the Tribunal's treatment of the:
a.Langton Medical Centre report, dated 2 July 2018 (considered by the Tribunal at [15] to [17]);
b.Statement from the "Managing Director / HR of the review applicant's employer" (considered by the Tribunal at [21]);
c.the Visa Applicant's oral evidence regarding the compelling circumstances and the Applicant's health concerns (see extract of transcript at page 18 line 20 to page 20 line 9);
d.the Applicant's request to ask the interpreter to explain the word compelling to the Visa Applicant (although the First Respondent submits that the hearing transcript does not indicate that the Visa Applicant had any difficulty understanding what was being interpreted (see e.g. extract of transcript p 18 line 9 to page 20 line 9); and
e.Applicants claims of poor mental health (considered by the Tribunal at [14] to [17] and [22]).
47. The First Respondent submits that there are two difficulties with this ground. Firstly, legal reasonableness in the sense described Li is concerned with the exercise of discretionary powers, not the making of factual findings. Secondly, in this matter, it was reasonably open, on the evidence available to the Tribunal, in relation to the above claims, to make the impugned findings and to conclude that in the circumstances of this case compelling circumstances did not materialise. In reflecting on that conclusion it should be remembered that the Courts have found that such circumstances would need to force the decision-maker irresistibly to the conclusion that special consideration should apply. The decision-maker was no so satisfied in this case.
48. The First Respondent submits that ground 6cannot be made out.
Conclusion
49. The application does not identify any jurisdictional error, and should therefore be dismissed with an order that the Applicant pay the First Respondent's costs in the amount of $7,467 pursuant to rule 44.15(1) and Item 3 of Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth), or such amount as may be fixed by the Court.
Relevant Statutory Provisions
For ease of reference, it is convenient to set out those sections of the Act and Regulations that are relevant to the current proceeding: s.65 of the Act; r.1.20J, cl.300.213 & 300.222. They are set out below:
SECT 65
Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroyingidentity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.
Note 2: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.
Note 3Decisions to refuse to grant protection visas to fast track review applicants must generally be referred to the Immigration Assessment Authority: see Part 7AA.
2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
REG 1.20J
Limitation on approval of sponsorships--spouse, partner, prospective marriage and interdependency visas
(1AA) This regulation applies in relation to an application for:
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Prospective Marriage (Temporary) (Class TO) visa; or
(e) an Extended Eligibility (Temporary) (Class TK) visa; or
(f) a Partner (Temporary) (Class UK) visa.
(1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a) not more than 1 other person has been granted a relevant permission as:
(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
(ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)--not less than 5 years has passed since the date of making the application for that relevant permission; and
(c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination--not less than 5 years has passed since the date of making the application for that relevant permission.
(1A) In subregulation (1):
"relevant permission
" means:
(a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)--a visa; and
(b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997--permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.
(2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
300.213
(1) The applicant is sponsored by the prospective spouse.
(2) The prospective spouse has turned 18.
300.222
(1) The sponsorship of the applicant under clause 300.213 has been approved by the Minister and is still in force.
Note: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
(2) The prospective spouse has consented to the disclosure by the Department, to each applicant sponsored by the prospective spouse, of any conviction of the prospective spouse for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note: The prospective spouse may be asked to consent to such disclosure on the approved form required to be completed by the prospective spouse in relation to the visa application.
(3) For the purposes of subclause (2), the conviction of the prospective spouse for a relevant offence is to be disregarded
if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the prospective spouse has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the prospective spouse is taken never to have been convicted of the offence.
Consideration and Disposition
Although couched in discrete terms, the five Grounds of Review may conveniently be treated under two general headings: (a) issues relating to the Tribunal’s consideration of the Applicant’s evidence and whether, individually or cumulatively, it constituted “compelling circumstances” (Grounds 1, 4, 5 & 6), and (b) the quality of the interpreter service during the hearing before the Tribunal (Ground 2). I will first outline some basal principles and then consider the Grounds of Review in the light of the evidence and the Tribunal’s findings.
Compelling Circumstances
As noted earlier in these reasons, in Paduano, Crennan J referred to the following matters when considering what constituted “compelling circumstances”. For example, at [37], her Honour said (emphasis added):
‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for the absence’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity…
Then at [53], Crennan J said (emphasis added):
… If the Tribunal wished to ask the question posed by the case by reference to the ordinary meaning of ‘compelling’, the correct question was: ‘Were the reasons for the absence compelling in that they were forceful?’ In answering that question, the Tribunal would commit a mistake of law if it put a gloss on ‘forceful’ so as to exclude reasons for the absence which are forceful in that they involve moral necessity, or are convincing by reason of some forcefulness.
In CYG16 v Minister for Immigration and Border Protection, Mortimer J noted the following matters, which in my view, have some resonance (but not obviously complete correspondence) with the factual circumstances of the present matter.[9]
First, at [24] and [28], her Honour said (emphasis added):
[24] … 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.
…
[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.
In the conclusion of her judgment, Mortimer J said, at [32]:
… It can be accepted that the appellant feels the Tribunal’s decision is incorrect, and that he and his partner have been wronged by it. I also accept that there is likely to be some real hardship imposed on the appellant if he is required to leave Australia and apply for a partner visa offshore. However, this Court’s function is to ensure that the Federal Circuit Court has correctly assessed whether a Tribunal decision was made in accordance with Australian law and by a fair process, as required by the applicable legislative and regulatory scheme….
Subject to what is said below, in my view, there are “human” or “moral” arguments quite strongly in favour of the Applicant. Indeed, some of the findings by the Delegate, on their face, appear quite divorced from reality. So divorced from reality are the following matters that, in my view, when they are coupled with issues of “interpretation” dealt with later in these reasons, they move into something of a jurisprudential grey area. The Court is required to intervene because of relevant legal flaws in the process undertaken, and the findings reached, by the AAT.
Put another way, Crennan J in Paduano referred specifically to the utility, if not the importance, to consider matters that are characterised as arising from “moral necessity”. The “moral necessity” of the situation involving the Applicant and his fiancée of 5 years (and counting), as outlined by Crennan J in Paduano, was not relevantly addressed by the AAT.
Likewise, Mortimer J in CYG16 referred (at [28]) to “the nature and length, and level of commitment” in the relationship she was considering. Although referred to by the AAT in general terms in the current matter, in my view the AAT did not properly or relevantly consider, other than in passing or in a quite cursory way, “the nature and length, and level of commitment” of the Applicant and his fiancée. While there is reference by the AAT to the length of the relationship (5 years), and the commitment (daily telephone calls), the ultimate assessment by the AAT (at par.11) was that:
… Despite the longevity of their relationship, the parties had spent relatively little time together and not in the past two years. In such circumstances, the Tribunal is not satisfied that a long term genuine relationship, even if one was established, would give rise to compelling circumstances affecting the sponsor.
In my view, the AAT did not properly have regard to the nature, length and level of commitment of the Applicant and his fiancée as required by Mortimer J in CYG16. The Tribunal used the enforced separation of the couple as a basis or reason for disregarding the possibility of the couple’s circumstances as constituting “compelling circumstances.” Further, on its face, the Tribunal in its final assessment made no mention of the daily telephone calls between the couple, which also bespeaks either omission and or failure properly to have regard to the length and commitment of the relationship.
Further to these matters, I note the following.
As noted earlier in these reasons, the criticism of Dr Thornton for not having observed the Applicant and his fiancée, who live on opposite sides of the world, requires further examination and comment. In my view, such a criticism was unwarranted and showed a complete disregard of the realities of the situation of the Applicant and his fiancée. It was completely improbable that Dr Thornton would ever have been in a position to do what he is criticised for not doing: observing the Applicant and his betrothed.
True it is that the Applicant’s symptomology regarding his mental health issues outlined earlier has long pre-dated his relationship with his fiancée. However, Dr Thornton was entitled otherwise to comment on the mental health and well-being of the Applicant in the light of the limbo status and plight of his relationship. There was no other medical evidence before the Tribunal to contradict Dr Thornton’s evidence. In my view, the AAT erred in rejecting Dr Thornton’s comments regarding the import and effect on the Applicant of his enforced and lengthy separation from his fiancée.
Similarly, the IAA’s comments about the evidence from the Applicant’s employer also showed significant lack of practicality and reality. It is difficult to see (or to not accept) how long-term work colleagues would not be able to give basic information, based on their daily observations of a colleague, about that colleague’s general demeanour and disposition, the likely reasons for same and changes in same over time. Clearly, such observations are not “expert evidence”, but they are, nonetheless, information based on reasonably sound, almost daily, first-hand observations.
All of this said, I remind myself that the task of the Court is to review the process undertaken by the Tribunal and not to engage in merits review. However, the queries I have raised in relation to (a) the treatment of the evidence of Dr Thornton, and of (b) the Applicant’s employer, in my view, go directly to the proper process before the Tribunal. Here, relief is warranted because of the procedural errors arising from the AAT’s failure properly to consider the evidence of Dr Thornton, and the evidence provided by the Applicant’s long-time employer.
Further, the Tribunal’s consideration of what did and what did not constitute “compelling circumstances”, did not accord with the “moral necessity” description provided by Crennan J in Paduano. Likewise, the Tribunal’s approach did not comply with the prescriptions or instructions provided by Mortimer J in CYG16 regarding a proper consideration of “the nature and length … or level of commitment” of the relationship in question. In my view, the Tribunal’s treatment of such matters was entirely dismissive. This further failure to observe proper reference to these principles provides an additional ground for relief in the Applicant’s favour.
The same matters highlighted by Mortimer J in CYG16 to which I have just referred relate to one further aspect that requires discussion, namely the “reasonableness” of the Tribunal’s decision.
In Stretton, Allsop CJ provided a detailed consideration of principle regarding “legal unreasonableness” in the following terms, at [4] – [13] and [21] (emphasis added):[10]
[4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
[5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v PekoWallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated lawmaking power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
[6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome-focused” conclusion without any specific jurisdictional error being identified: Singh at [44].
[7] It is in relation to the second context, the “outcome focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
[9] The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
[10] This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63][76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64][65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68][71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
…
[21] … It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this…
The conclusion reached by the Tribunal was that nothing in the Applicant’s evidence, individually and collectively, brought the matter within the discretion of “compelling circumstances.” I have earlier found that the Tribunal failed in its statutory task properly to consider the evidence of Dr Thornton, and the evidence from the Applicant’s employer. Similarly, I have found that the Tribunal did not relevantly consider, by reference to authority (e.g. Paduano), the moral import of the Applicant’s circumstances for the purposes of whether “compelling circumstances” had been made out.
Finally, I have found that the Tribunal failed in its proper considering of “the nature and length … or level of commitment” of the relationship between the Applicant and his fiancée in accordance with the instructions of Mortimer J in CYG16.
This last finding, in my view, adds to the consideration of whether, in the light of the outline of principle by Allsop CJ in Stretton, especially in relation to “an “outcome-focused” conclusion [of unreasonableness] without any specific jurisdictional error being identified”, relevantly applies to the facts and circumstances of the current matter.
In my view, by reference to Allsop CJ’s comments in Stretton in particular regarding an “outcome-focussed” decision, the Tribunal’s conclusion that the Applicant and his fiancée could effectively keep their relationship going ad infinitum, with the Applicant in Australia and his fiancée on the other side of the world (Albania), was legally unreasonable. In my view, it was not a decision that the decision-maker, properly considering the evidence in the light of relevant principle, could reasonably reach. Among other things, not only did the Tribunal fail in its proper consideration of the evidence to which I have referred, it also failed to take into account that its conclusion would consign this couple, after a relationship of 5 committed years (which was acknowledged by the Tribunal), to remain in a relationship that had no relevant prospect of formal (or any other) resolution.
Failure to Provide an Adequate Interpreting Service
In Perera v Minister for Immigration and Multicultural Affairs, Kenny J outlined the requirements and standards properly to be expected in matters involving interpreters.[11] Her Honour’s comments have regularly been followed in subsequent decisions of the Federal Court.[12]
[11] Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.
[12] See, for example, SZOYU v Minister for Immigration and Citizenship [2012] FCA 936. In that case, at [29], Jacobson J referred to Kenny J’s decision in Perera as “seminal.”
Kenny J first outlined the role of an interpreter, beginning at [24] (internal citations omitted):
The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication… An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.
Next, her Honour set out the standard of interpretation required, at [29] (emphasis added):
… there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
Her Honour, quoting others, at [30], said that the focus or relevant measure, was that the level of interpretation “must be of a high enough quality to ensure that justice is done and seen to be done.”
Finally, her Honour considered the application of the relevant standard of interpretation, saying, at [41] - [42] and [45] (emphasis added):
[41] What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter
[42] … There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry.
[45] It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision…
More recently, in BZAID v Minister for Immigration and Border Protection, Edelman J (as his Honour then was), in addition to citing Kenny J’s decision in Perera at [50], summarised the relevant principles regarding “interpreters” and “interpretation” at [52] and [53] (emphasis added):[13]
[52] The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
[53] The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
Edelman J concluded his reasons, at [113], saying (emphasis in original):
There is a real possibility that the combination of all of the errors, omissions and mistranslations by both the interpreters contributed to the Tribunal’s rejection of key aspects of the appellant’s evidence. … When all of the errors and defects to which I have referred above are considered as a whole and in light of all of the circumstances of the hearing, I am satisfied that they might reasonably have led to an adverse finding. This is not a conclusion that the errors and defects in the interpretation process did lead to an adverse finding.
His Honour’s conclusion at [113] relevantly applies to the following interpretation issues in the current matter, with the result that “they might reasonably have led to an adverse finding.” In my view the totality of the defects and errors warrants the Court to grant the relief sought by the Applicant.
The following excerpts from the Transcript of the hearing before the Tribunal on 9th July 2018 highlight the various defects and errors (emphasis added):
MEMBER: Okay. Now, you applied for a fiancé visa. One of the requirements for you to be granted that visa relates to your partner and essentially, it states that if your partner has sponsored two people before for this kind of visa or a similar kind of visa, he can’t sponsor another person.
INTERPRETER: I’m sorry, I didn’t quite get this one.
MEMBER: If your partner has previously sponsored two people before, for the same kind or a similar kind of visa, then he can’t sponsor another person. There is a provision not to apply this requirement, but for that, I need to be satisfied that there are compelling circumstances affecting your fiancé.
INTERPRETER: Excuse me?
MEMBER: Yes?
INTERPRETER: Hello?
MEMBER: Yes, can you hear me?
INTERPRETER: Yes, I can hear you now.
MEMBER: All right. So, there is a provision not to apply this requirement if there are compelling circumstances affecting your fiancé.
INTERPRETER: Hello?
MEMBER: Interpreter, can you hear me? Sorry, Interpreter, can you hear me?
INTERPRETER: Hello? Hello, I can hear you now, yes.
MEMBER: Okay. So, I will say this again. There is a provision not to apply this requirement, if there are compelling circumstances affecting your fiancé. Do you understand that?
INTERPRETER: What are they?
MEMBER: I am sorry, you’re asking me what they are?
INTERPRETER: She is asking.
MEMBER: Ms Qose, I need to consider whether there are compelling circumstances affecting your fiancé.
INTERPRETER: Hello? I’m sorry what is the question? Hello?
MEMBER: Mr Abazi, I’m not sure whether this is going anywhere or whether this is very helpful.
MR ABAZI: Is there anything that you would like me to say?
MEMBER: Well, is your fiancé able to address me on the issue of compelling circumstances, because that’s really the only issue that I’m going to talk to her about and I’m just not sure whether - - -
MR ABAZI: The interpreter hasn’t actually explained to her what you’re telling her to say.
INTERPRETER: Member, I think that – sorry, I think the problem is that it’s just too complex (indistinct) about the situation.
…
MEMBER: Ms Qose, I’m going to stop you there for a moment.
INTERPRETER: Yes.
MEMBER: Sorry, Interpreter, you need to interpret.
WITNESS: Okay.
MEMBER: I’m not asking you questions about your relationship, I’m asking you questions whether you think there are any compelling circumstances affecting your fiancé. Interpreter? Interpreter, are you there?
INTERPRETER: Hello?
MEMBER: Sorry, Interpreter, are you there? Mr Abazi, I’m not going to go ahead with that. If you think I need to speak to your fiancé, then we will come back and we will probably try to get an interpreter in person, because I don’t think it’s going anywhere.
MR ABAZI: Okay. I would also like to – sorry.
MEMBER: Sorry, go on.
MR ABAZI: Member, I would also like to add a couple of things that – I run a business with my partner of - - -
MEMBER: Sorry, Mr Abazi, we will – just hold on, I will speak to you in a moment.
MR ABAZI: Sure.
MEMBER: Let’s figure out what we’re doing with your fiancé and then I’ll speak with you again. Are you okay for me to hang up, because I don’t think this is going anywhere? If you do want me to speak to her, then I think we need to do it with an interpreter present, because this is not working. If you don’t think she is going to provide helpful evidence, then I’m not going to speak to her. But I don’t think this is going anywhere. So, are you okay for me to hang up then?
MR ABAZI: Yes. I really don’t think she understood the question.
MEMBER: I don’t think so either, but I don’t think we can help that, because this is obviously not working very well.
After a short adjournment, a second interpreter was engaged and the hearing resumed. The following extracts, also on 8th July 2018, highlight the defects with the second interpreter (emphasis added):
MEMBER: We were trying to explain to you before, the issue I’m looking at relates to the sponsorship limitation that relate to your fiancé. Because he has sponsored two people before, there is some limitation as to how many people he can sponsor for a visa altogether. So, I need to be satisfied that there are compelling circumstances affecting your fiancé.
INTERPRETER: Yes, tell the Judge that we love each other very much and we’ve been together for five years. And I want to be reunited with him as soon as possible, I pledge you. The distance is harmful for both of us. We love, we do love each other very much.
MEMBER: Any other compelling circumstances that you want to bring to my attention?
INTERPRETER: Yes, I want to say that I love Irfan very much. I love him dearly and I can’t wait to be reunited with him. I am contemplating to have a strong family for the future, a happy and strong family with him, please.
MEMBER: Are there any other compelling circumstances that you would like to mention?
INTERPRETER: Yes, these are the circumstances. This is the truth, that we love each other very much and the distance is harming both of us and I can’t wait to be reunited with him.
MEMBER: Ma’am, is there anything else? Are there any other circumstances that you think might be compelling circumstances that you want to bring to my attention? I understand that you are telling me that you are in a genuine relationship, that you want to be together and you want to be reunited. Are there any other circumstances that you want to bring to my attention?
INTERPRETER: This is the reasons which I said and I will say again, that we love each other very much, but furthermore, there are also reasons of our health. This upsets me very much and it also upsets and disturbs him very much. He is on medication, simply because we are not together and this is harming us.
MEMBER: Why don’t you tell me about the circumstances of your health?
INTERPRETER: Yes, I can say I’m also very upset. I’m very upset and I want to be reunited with Irfan, but I’m not - yes, so please help us.
MEMBER: Ma’am, I’m asking you a specific question. You have mentioned your health or your partner’s health. I’m asking you to talk to me specifically about this issue if you can?
INTERPRETER: I do apologise, Member, I omitted something, Member, I do apologise. Can I repeat my question?
MEMBER: Yes.
INTERPRETER: I do not have any health issues, only Irfan has.
MEMBER: All right. Talk to me about your partner’s health issues?
INTERPRETER: Yes, I can see Irfan, he’s very upset. He’s not well. He is on medication. We want to be reunited so that he can improve his health. He doesn’t even go regularly to work because of the situation.
MEMBER: Can you be a little bit more specific, what health issues does your partner have?
INTERPRETER: Irfan, because of his disturbance, because he’s very upset, he goes to doctor, he has issues sleeping, he takes medication. The doctor has prescribed him medication.
MEMBER: Apart from issues with sleeping, does he have any other health issues?
INTERPRETER: No, all these things because of the situation, because of stress, because of waiting for so long. So, this duration of waiting, this has caused him this issues. It is because of time.
MEMBER: I’m not really asking you what’s causing the issues, I’m asking you to explain to me what those issues are. Are you able to do that?
INTERPRETER: Yes, this is the issue. He doesn’t sleep, sleeplessness.
MEMBER: Is that the only issue that your partner has?
INTERPRETER: Yes, this one, because of the depression, because of the situation.
MEMBER: Is there anything else that you want to tell me, Ma’am?
INTERPRETER: No, no, no, thank you. No.
MEMBER: Is there anything else before we hang up?
INTERPRETER: Yes, this one. I pledge you once more to help us to be reunited, because the distance has harmed both of us. So, please help us and thank you for the interpretation.
MEMBER: Thank you very much for speaking to me. I’ll hang up now.
INTERPRETER: Thank you very much. Please. Thank you.
MEMBER: Mr Abazi, I must say, I find it quite extraordinary that the first time that I’m hearing about your health issues is halfway through this hearing when this case has been with the tribunal for two years and you’ve sent me lots of different submissions, none of which refer to your health issues.
MR ABAZI: Can I just simply say this? That I didn’t think that my depression had anything - how can I put it - as compelling as what the evidence shows that I’ve been together with somebody for five years.
MEMBER: Well, you’re obviously raised it now, so you obviously do think that it’s something that’s worth considering, that’s something that I need to consider and that’s a perfectly legitimate way obviously for you to raise it. My concern is that you’re raising it now rather than in the past two years.
MR ABAZI: The reason being, is because I really didn’t understand the term, “compelling”. What do you actually mean by compelling? What is compelling?
MEMBER: Mr Abazi, you have a very experienced migration agent sitting next to you. I’m sure that advice would have been given, or should have been given in the last two years. It’s up to you how you present your case, but as I mentioned before, it would have been really helpful for me to have that evidence and certainly the medical evidence.
MR ABAZI: I can get that. I can get that.
MS LE: Excuse me, Member, can I say something?
MEMBER: Of course.
MS LE: I think it’s - the question of what is compelling from my understanding, is that this is something that is going to move the decision‑maker to make a decision that that situation, as the decision‑maker sees it, is compelling. From the point of view of the client, it’s his right to tell me, or anybody else, whether he is depressed or under medication. The fact that I did not know that until now, doesn’t seem to me to be taking away from his case, when I do think that he has considered that compelling, it has a different meaning for him than the fact that he is mentally affected from this.
Now, if that is something that - because this is your decision, so if you consider that his mental state is something that will assist you, that, you know, a medical certificate will assist you to make a finding in this case, then, of course, we will put it before you. But is over to the decision‑maker, in the ultimate, to decide what is the most compelling thing and that may be different for you than it is for him and so we do need to know what’s in your mind. You’ve made that clear today, so he will provide a medical certificate.
MEMBER: I appreciate all that, except that it’s difficult for me to know what’s in my mind when the evidence is not before me and that’s really the point that I’m making. Mr Abazi, (indistinct).
MS LE: On our side, we make the same notes. On our side, we make the same - that - I mean, I noted that you asked about whether there was a medical - sorry a marriage certificate. And that if there was something lacking, I don’t want (indistinct) here, it never occurred to me. But if he was (indistinct), is there a medical certificate. But now you’re asking for it, he can provide that, that’s coming up very clearly in this evidence.
MEMBER: Sorry, Mr Abazi, go on?
MR ABAZI: I’d just like to also make a statement in regards to the interpreting and our interpreter here did a much better job than the previous one. There’s no - that I know of - there’s no real word in Albanian for depression, other than what Entela was saying, “merzikia”. You know, this interpreter here also made it a lot more clearer to Entela as to what compelling is. To me, as far as I know, compelling, there’s no real word in Albanian that means compelling. So, you have to find another way to explain it and I think the interpreter did a pretty good job on that.
But I just want to stress again that there’s no real term in Albanian for depression, other than the word depression. But if you use the Albanian language, then things like merzikia means depression. You can ask the interpreter that, if you like.
MEMBER: I think she mentioned stress, so I assume she meant depression by that. The word stress came up, so I think she did refer to stress or depression if you like.
MR ABAZI: Yes.
MEMBER: Yes, so that’s fine.
In my view, the following matters are clear from the evidence before the Tribunal:
(a)During the hearing, there were two interpreters. The first of them was, after a relatively short period, generally recognised to be unsatisfactory, including by the Tribunal (T 4 & 6). Among other things, there were patently clear times when the interpreter could not hear, or understand, the parties. The first interpreter also stated that the matter was “just too complex” (T 3 & 4);
(b)The important term “compelling circumstances” was never translated (or explained) to the Applicant’s fiancée (T 5);
(c)At T 7, the Tribunal stated that it did not intend to speak with the Applicant’s fiancée about the relationship between the parties, and questioned whether she could (or would) provide any evidence in relation to “compelling circumstances”. At T8, the Tribunal stated to the Applicant that it did not think that his relationship was relevant to “compelling circumstances. Among other things, such a statement not only misunderstands the crucial import of the nature, length and commitment of the relationship, but also it comes very close, in my view, to apprehension of bias (which was never raised among the grounds of review) regarding what should properly be considered to be part of “compelling circumstances”;[14]
(d)At T 7 and following, the Applicant gave evidence of his state of depression. At T 7, T 11 – 12, T 15 and T 20, the Tribunal challenged him why evidence in relation to this was not before it. Curiously, according to the transcript, the hearing was held on 9th July 2018. The letter from Dr Thornton was dated 3rd July 2018, and the letter from the Applicant’s employer was dated 4th July 2018. Why this material was not before the Tribunal was not explained. The fact that this material was not before the Tribunal clearly founded the bases for the criticisms of the Tribunal directed to the Applicant during the hearing. Moreover, at CB 545 is a copy of an email from the Applicant’s migration agent, Ms Le, dated 6th July 2018, addressed to the National Mail Box of the AAT. That email enclosed the letters from Dr Thornton and from the Applicant’s employer, Genuine Steel.
(e)In my view, its important attachments should have been before the Tribunal for the hearing 3 days later. This did not occur. Of itself, it was tantamount to an element of procedural unfairness. Had this material been before the Tribunal, in my view, it would at least have obviated the complaints made by the Tribunal about the alleged lack of independent evidence. Just as likely is the possibility that it would have assisted the Applicant’s case;
(f)A second interpreter was finally arranged for some time later on the same day as the original hearing (9th July 2018);[15]
(g)At T 18 – 20, the Tribunal asked the Applicant’s fiancée to explain or to comment on “compelling circumstances.” During the time that the fiancée was on the telephone the Tribunal never explained what was comprehended or understood by “compelling circumstances”. In my view, this was a significant omission. The fiancée simply explained the love and commitment between the parties, that “the distance is harming both of us”, and that the Applicant’s health was suffering, such as needing to take medication to help him sleep. She said that he also suffered from “stress” and that he suffered from “depression.” The fiancée then hung up the telephone, which concluded her evidence and input to the hearing;
(h)At T 20, the Applicant himself questioned the Tribunal because, in his view, he never understood what was meant by “compelling”. To this, the Tribunal simply said that the Applicant had an experienced migration agent who would have, it was assumed, explained to him what was meant by “compelling circumstances”;
(i)At T 21, the Applicant raised with the Tribunal that while the second interpreter did a better job than did the first interpreter, there was a concern that there was no word in Albanian for “depression”, or for “compelling”. He accepted that the interpreter did a “pretty good job” in explaining it. However, in my view, it was not for the Applicant to absolve the interpreter (or the Tribunal) from being properly satisfied that all words and their basic meaning were properly understood by the fiancée in circumstances where the Tribunal never explained – other than by repetition – what was understood by “compelling circumstances.” Nor was it to the point, at T 21, for the Tribunal to elide the understanding between “stress” on the one hand” and “depression” on the other.
[14] See also T 15 in this regard where the Tribunal said: “ … I have no submissions about compelling circumstances. All the evidence that I have relates to their relationship and that’s, you know, partly helpful, but that’s obviously not the issue here.” In my view, this again bespeaks the Tribunal misunderstanding its statutory task regarding what does and what does not constitute “compelling circumstances.” Again, the Tribunal effectively ruled out consideration of the relationship as part of “compelling circumstances.” It was, in my view, in error to do so.
[15] See T 17.
Conclusion
Summarily stated, in my view, the Tribunal did not properly or relevantly have regard to any authority regarding what constituted “compelling circumstances”. By not doing so it deprived itself of having a proper and authoritative point of reference, such as Paduano, by which it could properly and reasonably consider the facts of the Applicant’s case.
The Tribunal did not properly or relevantly have regard to the evidence of Dr Thornton, or the Applicant’s employer, in relation to the Applicant’s mental health and well-being. In my view also, the Tribunal’s decision was legally unreasonable.
Finally, the matters I have noted necessarily lead the Court to find, applying the basal principles set out by Kenny J in Perrera, and more recently by Edelman J BZAID, that the interpreter service provided by the Tribunal was sufficiently deficient to give rise to a finding against the Applicant. Summarily, those deficiencies related to (a) the inaccuracy of the interpretation on both occasions, and (b) the failure of the Tribunal to explain to the Applicant, and especially to his fiancée, what was comprehended by “compelling circumstances” for the purposes of the Regulations.
The relief sought by the Applicant should be granted. There should also be an Order for costs in the Applicant’s favour according to the relevant Schedule to this Court’s Rules.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 September 2019
- AGLC
- Abazi v Minister for Home Affairs [2019] FCCA 2646
- Case
- [2019] FCCA 2646
- Decision Date
CaseChat Overview and Summary
The applicant sought judicial review on several grounds, including that the AAT misconstrued or misapplied the phrase "compelling circumstances," that the quality of interpretation during the hearing was inadequate, that the AAT failed to consider relevant materials, that it made an adverse finding on health issues based on them being raised late, that it failed to give genuine consideration to submissions, and that its decision lacked evident and intelligible justification and was legally unreasonable. The Minister argued that no jurisdictional error had been established and that the application should be dismissed.
The Court considered the meaning of "compelling circumstances" in the context of regulation 1.20J, noting that such circumstances must "force or drive the decision maker irresistibly" to grant special consideration. The AAT had considered various factors presented by the applicant, including the length and nature of his relationship with the visa applicant, his health, and the circumstances of previous relationship breakdowns. However, the AAT found these factors, individually and cumulatively, did not meet the threshold of compelling circumstances. Regarding the interpretation issues, the Court noted the AAT's efforts to rectify problems with remote interpretation by arranging for an in-person interpreter for the visa applicant's evidence, and concluded that the applicant had not been deprived of an adequate opportunity to present his case. The Court also addressed the grounds relating to the consideration of health issues and the alleged misstatement of submissions, finding that the AAT had considered the evidence and that the applicant's claims did not amount to jurisdictional error.
Ultimately, the Court found that the AAT's decision was reasonably open to it on the evidence before it and that the applicant had not established jurisdictional error. The application was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.