Aqm24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 124
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQM24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 124
File number(s): BRG 633 of 2020 Judgment of: JUDGE EGAN Date of judgment: 16 February 2024 Catchwords: MIGRATION LAW - application for partner visa – whether Tribunal erred in the way in which it considered the applicant’s documentation – whether the Tribunal failed to intellectually engage with the arguments put before it – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s 378
Migration Regulations (1994) (Cth), Schedule 3
Cases cited: Babicci v MIMJA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZYPZ v MIAC [2012) FCA 478
Nazir v MIBP [2018] FCCA 861
Singh v Minister for Home Affairs [2020] FCAFC 7
Waensila v MIBP [2016] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submission/s: 9 February 2024 Date of hearing: 9 February 2024 Place: Brisbane Applicant: The applicant appearing on their own behalf Solicitor for the First Respondent: Mr J Kyranis, Sparke Helmore Second Respondent: AAT ORDERS
BRG 633 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQM24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 FEBRUARY 2024
IT IS ORDERED THAT:
1.The name of the Applicant be supressed pursuant to the provisions of Section 230 of the Federal Circuit and Family Court of Australia Act 2021.
2.The Originating Application filed on 3 December 2020 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application fixed in the amount of $6,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The Applicant is a citizen of India who first arrived in Australia as the holder of a Student Visa on 12 July 2013. That Student Visa expired on 30 August 2015. Subsequently, the Applicant was an illegal immigrant having no visa until obtaining various bridging visas prior to the refusal of an application for a Protection (Subclass 866) Visa.
On 24 July 2017, the Applicant applied for a partner visa due to his alleged relationship with a woman whom he met on 15 August 2016, and to whom he was married on 28 March 2017.
On 17 October 2018, a delegate of the Minister wrote to the Applicant and advised him that he did not meet criterion 3001 of Schedule 3 to the Migration Regulations (1994) (Cth) (the Regulations) in that he had not lodged his application for the partner visa within 28 days after the cessation of the student visa. The Applicant was invited to comment and provide further information as to whether he was able to point to any compelling reasons why the relevant Schedule 3 criteria should be waived. The Applicant was also invited to comment on information received by the Department to the effect that the Applicant had entered into a contrived relationship with the sponsor to remain in Australia. The Applicant provided a detailed response to those invitations. [1]
[1] See Court Book (CB) pp 92-120
On 18 January 2019, a delegate of the Minister refused to grant to the Applicant the partner visa on the ground that the Applicant did not meet the requirements under cl. 820.211(2)(d) of the Regulations, namely by reason of the failure to meet criterion 3001 of Schedule 3 to the Regulations.
On 5 February 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
On 4 November 2020, the Applicant, his sponsor, and his migration agent appeared before the Tribunal to give evidence and present arguments.
On 4 November 2020, the Tribunal affirmed the decision of the delegate. The Tribunal found that there were no compelling circumstances warranting waiver of the relevant criterion.
On 6 November 2020, the Tribunal gave a direction pursuant to the provisions of s. 378(1) of the Migration Act 1958 (Cth) (the Act) that there would be a restriction on the publication by the Tribunal of any information that would identify the Applicant.
For reasons advanced by the lawyers for the First Respondent, the Court has assigned to the applicant a pseudonym such that his identity is protected.
Grounds of Review
On 3 December 2020, the Applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds of review were as follows:
Grounds of application
1.I applied for a visa application under Partner (Temporary) ( class UK) (subclass 820) / Partner (Residence) (class BS) SUBCLASS 820/801. However, the delegate refused my application for visa as it did not satisfy the requirements of clause 820.211 and clause 801.221 in Schedule 2 of the Migration Regulations.
2.I then made an appeal to the Administrative Appeals Tribunal (AA T) to consider my application and substitute the decision in my favor. However, the decision was affirmed by the Tribunal member on 04 November, 2020 to refuse the visa application and substitute the decision in my favour.
3.On 04 November 2020, I attended the hearing along with my sponsor to present my case and provide evidence and present argument. I was accompanied by my registered migration agent in this matter.
4.However, on 10 November, 2020, the Tribunal member sent the email with the affirmed decision to not to approve my partner visa application.
5.The Tribunal member wrote to me on 31st August, 2020 inviting me to comment on or respond to the information. And therefore, I submitted all the relevant documents in support of my claims along with the submission before the hearing.
6.However, the Tribunal member made a decision without considering my current circumstances and only focused on the facts if I will depart Australia what could be the possible consequences. Tribunal did not focus on the covid19 pandemic situation in India and how it may impact my family here in Australia. However, the Tribunal member supported the claim by stating that ifl was affected by Covid19 pandemic and requires hospitalization then only these circumstances would matter which is completely unfair.
1)The AA T affirmed the decision on 10 November, 2020. The Member failed to take into account my compelling circumstances which were beyond my control and still are. I am under extreme stress mentally because my partner she was already worried what would happen if I had to leave Australia in this situation.
2)The Tribunals refusal to consider my application for review decision in favour of me has put me under immense stress and pressure both financially and mentally.
3)The delegate did not make decision considering my circumstances, and have not provide for chance to listen to my side of the story.
4)The tribunal member did not focus on the submission provided explaining my circumstances in order to waive the Schedule 3 criteria and facts presented for my previous immigration history.
5)For these reasons set out in my application, I believe that a jurisdictional error has been made while making a decisia.n on my application and I seek judicial review of the application. As the tribunal member did not focus on the fact that clause 820.211 states that the waiver is for 'compelling' reasons only, not 'compassionate and compelling' - that is a reference to 3004 time of application which was not applicable to my case. I request honourable court to review my case to provide me justice.
6)The Tribunal member should have given me an opportunity to accept my request to provide more documents after the hearing as questioned by the member as it would have help me get a favourable outcome on my application.
There was no dispute that the Applicant had not met the Schedule 3 criteria. The question before the Tribunal was whether there were compelling reasons for the waiver of the criteria.
The Tribunal had concerns about the Applicant’s credibility, finding at [13] of it’s reasons as follows:
13.The Tribunal has concerns about the applicant's credibility. Firstly, the Tribunal is concerned about the timing of the various events. After the applicant's Student visa expired and the applicant had no visa to remain in Australia, the applicant made the application for a protection visa. This was done considerable time after the applicant's entry to Australia. In the Tribunal's view, a person who is genuinely fearful of harm in their home country would take the earliest possible opportunity to seek protection, not wait until his other visa options expired. The applicant then met the sponsor and their relationship formed very quickly to enable the applicant to make an application for a Partner visa once his other visa options were exhausted. The applicant explained to the Tribunal that he met the sponsor before his protection visa was refused and the relationship formed quickly because they were right to each other, but the Tribunal finds that explanation unconvincing. The timing of the applicant's relationship with the sponsor is of concern.
The second reservation on the part of the Tribunal was the fact that whilst indicating to the Department that the applicant intended to depart Australia, and being granted bridging visas on that basis, he in fact remained in Australia and made visa applications on shore instead. [2]
[2] [14] of the reasons of the Tribunal.
Medical evidence put before the Tribunal concerning the health of the applicant’s sponsor indicated that the sponsor had clearly suffered from mental health conditions before the applicant and the sponsor commenced a relationship. It was of concern to the Tribunal that the sponsor presented to therapy on 1 July 2017 which was less than three (3) weeks before the partner visa application was made.
The Tribunal carefully considered the factors mitigating against a finding that there were no compelling reasons at [16] – [19] of its reasons as follows:
16.The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) lo provide compelling reasons for nol applying those criteria is in addition to the criteria in cl.820.211(2)(a). Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria as it is already a criteria which must be satisfied in order to meet the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 crrteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship.
17.Since the existence of a genuine spousal relationship is the basic requirement for a partner visa application, the Tribunal is not satisfied that the genuineness, mutual commitment, emotional support, continuing nature and longevity of the parties' relationship or the parties' temporary separation are on their own and without more, circumstances that should compel the Tribunal to not apply the Schedule 3 criteria. The Tribunal is not satisfied on the evidence that the parties' relationship is a compelling reason for not to apply the Schedule 3. In reaching this conclusion, the Tribunal has had regard to the reasoning in Chan v MIBP [2017] FCCA 2883 at [14] and Nazir v MIBP [2018] FCCA 861 at [29]-[30].
18.The Tribunal has considered the medical evidence relating to the sponsor. There was before the delegate a report from a psychologist Chaminga Dhanapala dated 10 July 2017. It refers to the sponsor self-reporting symptoms and, with the help of DASS (a self-reporting questionnaire) the sponsor has been identified as suffering from severe level of stress, an extremely severe level of anxiety-related symptoms and moderate level of depressive symptoms. It is also stated that the sponsor experience moderate impairment in many areas of general functioning. It slates that the removal of the sponsor's spouse from Australia will have significantly detrimental consequences on the applicant's and sponsor's psychological health and well-being.
19.The report states that the sponsor presented to therapy on 1 July 2017. It is of concern to the Tribunal that she did so less than three weeks before the application was made, even though on the application form the couple claims to have committed to a shared life in September 2016. (In her submission to the Tribunal of 16 September 2020 the sponsor refers to a 'misunderstanding' which resulted in the incorrect dates being stated in the medical report,) The applicant told the Tribunal that his wife has been seeing a number or psychologists from 2016 (the sponsor said she started seeing a psychologist in 2017) but there is little documentary evidence of ongoing treatment from that time. The fact that the sponsor saw Chaminga Dhanapala shortly before the applicant made his visa application suggests that the purpose of that visit was to obtain the report to assist the applicant with his visa. In such circumstances, the Tribunal considers the self-reported symptoms set out in the report to be self-serving. The Tribunal also does not accept the health provider’s recommendation that the applicant’s departure from Australia would have a detrimental effect on the sponsor’s health, as the Tribunal has formed the view that the information was given to the health professional for the benefit of the visa process.
At [20] of its reasons, the Tribunal noted that the second psychological report presented to the Tribunal dated August 2020 was prepared at the request of the applicant’s migration agent after the applicant had received an invitation to attend the Tribunal hearing. The Tribunal was of the view that the mental health consultations and reports were more related to supporting the applicant’s visa appeal rather than genuinely for treatment.
The Tribunal considered the effect that a refusal of a visa application would have upon the support of the sponsor and the sponsor’s son. At [22] – [24] of its reasons, the Tribunal found as follows:
22.The applicant claims that the sponsor would be unable to overcome her mental health issues without his help and that separation would be detrimental to the sponsor's health. Both the applicant and the sponsor spoke about the help and support the applicant provides to his wife and the sponsor's need to rely on such support. The Tribunal is prepared to accept that evidence. However, the Tribunal does not accept the parties' evidence that applicant would be unable to provide support to the sponsor even if the partners were separated for a period of time, it may take the applicant to make another visa application offshore and be granted the visa (if their relationship is assessed as being genuine). The applicant and the sponsor described in oral evidence the nature of support the applicant provides to the sponsor. It seems to comprise, primarily, emotional support, encouragement and counselling. The Tribunal is of the view that such support can also be provided if the parties were to communicate by electronic means, for example.
23.The Tribunal accepts the evidence that the applicant also provides physical support to the sponsor and her son, including attending medical appointments with the sponsor, attending the son's school, taking the child to various functions and performing other domestic chores. Such support would not be available if the applicant was to leave Australia but the Tribunal does not consider that the withdrawal of such support, in all the circumstances of this case, constitutes a compelling reason for the waiver.
24.In particular, having regard to the nature of the treatment being received by the sponsor (which is limited to counselling), her ability to maintain full-time employment and a responsible role in childcare, the Tribunal has formed the view that the sponsor's condition is not of such severity that the withdrawal of the applicant's in-person support would amount to a compelling circumstance justifying the waiver. The Tribunal is of the view that the applicant will still be able to provide some degree of support even if he is not in Australia, and while the Tribunal acknowledges that it would be of different nature and may be diminished, as noted above, the Tribunal does not consider that in the particular circumstances of this case, such diminution of care and support by the applicant would amount to a compelling reason for the waiver.
The Tribunal at [26] – [27] of its reasons found that there was little evidence to show that the applicant had assumed parental responsibilities in respect of the sponsor’s son, or that he was perceived as occupying a parental role by third parties. At [28] of its reasons, the Tribunal found that the applicant would still be able to maintain a close relationship with the sponsor and the child if he was overseas, and that such relationship could be continued whilst the applicant was applying for another visa.
The applicant claimed that he was fearful of returning to his home country, but such claim was made in circumstances where his protection visa application had been refused both by a delegate of the Minister and by a differently constituted Tribunal. No probative evidence had been presented to the Tribunal so as to warrant it questioning the correctness of the earlier protection visa decision.
The applicant raised the issue of Covid being an issue in India but there was no evidence before the Tribunal to suggest that adequate treatment for such condition could not be obtained in India.
At [34] of its reasons, the Tribunal stated its reasons for not finding that there were compelling reasons to waive the criteria as follows:
12.The expression 'compelling reasons' is not defined for these purposes. However, the
reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012) FCA 478 at (10}; Babicci v MIMJA (2005) 141 FCR 285 at [24).
Circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
As to the first grounds of review numbered 1-6, such grounds do not particularise any error on the part of the Tribunal, save for the vague reference to the Tribunal not having focused on “the Covid-19 pandemic situation in India”. In the light of the finding by the Tribunal that there was no evidence before it on point, there was no merit to such claim.
As to the other grounds numbered 1-6, Ground 1 related not to a compelling reason other than what the applicant claimed was “extreme stress” suffered by him and not his sponsor. There was no relevant evidence before the Tribunal about any stress condition suffered by the applicant, and hence, there is no merit to such claim.
Ground 2 again referred to immense stress and alleged pressure (both financial and mental) suffered by the applicant, but again there was no evidence before the Tribunal which constituted a compelling reason for the waiver of the criteria. In that regard, the Court respectfully adopts what was held by His Honour Justice Derrington in Singh v Minister for Home Affairs [2020] FCAFC 7 where at [27] it was said:
27.“It identified that the expression “compelling reasons” is not defined but, following the decisions in MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510 at [10] and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24], considered that the reasons advanced “should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”. It was not disputed that this test was correctly stated by the Tribunal.”
It cannot be said that the Tribunal did not consider the applicants claims of hardship (both in respect of himself, his sponsor, and his sponsor’s son) as well as the applicant’s claim relating to Covid. Nor could it be said that it did not intellectually engage appropriately in relation to such claims. There is no merit to such Ground.
Ground 3 was a claim that the delegate had not considered the applicant’s circumstances and had not provided him a fair chance to listen to his side of the story. Such a claim was irrelevant. The decision under review was that of the Tribunal, and not the Delegate. The Ground is without merit.
Ground 4 was a general claim that the Tribunal had not focused upon the applicant’s submission which was said to justify the waiver of the criteria. The Court finds that the Tribunal carefully considered all the applicant’s claims and made appropriate findings based upon the evidence before it. There is no merit to such Ground.
Ground 5 was another general claim based upon the proposition that the Tribunal had not appropriately considered the applicant’s claims. There is no merit to such Ground. The Court has already found that the Tribunal did not err in the way in which it approached the claims made by the applicant, or the way in which it made its decision. Further, the Tribunal was well aware of its task insofar as the question of the existence of compelling reasons was concerned. At [12] of its reasons it found as follows:
12.The expression 'compelling reasons' is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
Ground 6 was a claim that the applicant should have been given an opportunity to provide further documents after the hearing so as to advance his application for review. There is no merit to such claim. There was no evidence before the Tribunal that the applicant had either orally or in writing asked for a further opportunity to provide documents to the Tribunal for its consideration. In the absence of a request to do so, the Tribunal cannot be criticised for handing down its decision in a timely manner.
The decision of the Tribunal was one which could have been made by another reasonable decision-maker. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
130.“In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Was the Tribunal's fact finding "illogical" or "irrational"?
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
The Grounds of review are without merit and the Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 February 2024
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