ATT20 v Minister for Immigration and Border Protection
[2020] FCCA 499
•9 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATT20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 499 |
| Catchwords: MIGRATION – Partner visa – whether Tribunal failed to consider the combination of circumstances said to constitute compelling reasons not to apply Schedule 3 criteria. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.820.211 |
| Cases cited: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 |
| Applicant: | ATT20 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2753 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 March 2019 |
| Date of Last Submission: | 14 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 21 September 2016.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 13 October 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2753 of 2016
| ATT20 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 September 2016 affirming a decision of a delegate of the First Respondent not grant the Applicant a Partner (Temporary) (Class UK) visa. As the Applicant has previously applied for a Protection visa he has been allocated a pseudonym (see s.91X of the Migration Act 1958 (Cth) (the Act)).
The Applicant, a citizen of Egypt, first travelled to Australia in January 2008 on a Student visa which ceased on 15 March 2010. He applied for a Protection visa on that date. It was refused on 31 March 2011. The refusal was affirmed on review in July 2011. Subsequently the Applicant lodged requests for Ministerial Intervention in August and November 2011. According to the Tribunal, these requests were both finalised as ‘not considered’. The Applicant did not hold any visa from 12 January 2012 until 24 December 2013 when he was issued a Bridging visa in connection with his Partner visa application of December 2013.
In support of his Partner visa application the Applicant provided the delegate with information relevant to the issues of whether he and his sponsor were in a genuine, continuing de facto relationship and whether there were compelling reasons for not applying criteria in Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations) (under cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations).
Relevantly, having regard to the grounds raised in these proceedings, in a statutory declaration of 24 December 2014 the Applicant stated that when he sought Ministerial Intervention in 2011 he did so on the basis that his country was experiencing significant civil unrest and his life was at risk due to his affiliation to the “Ahl Alquarun group”. He also claimed that after his Bridging visa expired in January 2012 he had not wanted to return to Egypt because his life would be in danger from his family because of his religious faith. He claimed that he had nowhere to live in Egypt and no work and that no-one would help him because his family hated him due to his religious faith as they did not agree with that faith. In that statutory declaration the Applicant claimed: “Always I do not feel safe in Egypt because of my religious faith as a Koranist”.
The delegate refused the application, finding that the evidence provided to support the existence of a genuine de facto relationship was weak and limited. The delegate placed significant weight on that fact when determining whether compelling reasons existed to not apply the Schedule 3 criteria and concluded that there were no such compelling reasons.
The Applicant sought review by the Tribunal. He provided supporting documents and a written submission. His agent submitted that compelling circumstances existed “due to the following”:
· that the couple have been in a long term relationship,
· a pregnancy and miscarriage took place;
· The applicant submits that he has not completed his military recruitment in Egypt therefore he is unable to obtain a passport and unable to return to Egypt.
The agent also claimed that the Applicant and his sponsor had been in a strong relationship since January 2012 and that the sponsor was very worried about the Applicant’s well-being. It was submitted that any separation would prejudice both the Applicant and his sponsor who could not be separated from him.
Among the documents provided to the Tribunal was a letter from the Consulate General of the Arab Republic of Egypt in Sydney dated 29 April 2016 certifying that the Applicant had applied for Egyptian passport renewal on 29 April 2016 but that “his military recruitment statues (sic) document is needed for an Egyptian passport to be renewed”. At the Tribunal hearing, the Applicant clarified that this meant that he would not be issued with an Egyptian passport until he had completed three years of compulsory military service which he would be required to do on return to Egypt. However he had been told that the Egyptian authorities would provide him with a certificate valid for 48 hours to enable him to return to Egypt.
At the Tribunal hearing, the Applicant, his sponsor and each of the sponsor’s parents gave oral evidence. The transcript of the hearing is in evidence as an annexure to the affidavit of Toufic Laba Sarkis of 13 October 2016. At the conclusion of the hearing the Tribunal member informed the Applicant that she did not have any concerns about the genuineness of the relationship and that she would only be considering the Schedule 3 criteria and whether she was satisfied that there were any compelling reasons for the Applicant not to have to lodge his visa application off-shore.
The Tribunal Decision
The Tribunal referred to the visa criterion in cl.820.211(2) in Schedule 2 to the Regulations which required an applicant for a Partner visa to be the spouse or de facto partner of and sponsored by an Australian citizen, permanent resident or eligible New Zealand citizen at the time of the visa application and to sub-paragraph 820.211(2)(d), which is as follows:
(d) in the case of an applicant who is not the holder of a substantive visa – either:
(i) the applicant:
(A) entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The Tribunal described the evidence of the sponsor’s parents that the couple were in a genuine and continuing relationship, that they had formed a close bond with the Applicant and that they held him in high regard. This evidence impressed the Tribunal as sincere. The Tribunal decision proceeded on the basis that the relationship was genuine and continuing and the Applicant was the de facto partner of his sponsor.
In considering cl.820.211(2)(d) the Tribunal found that it was not in dispute that the Applicant did not hold a substantive visa at the time of his Partner visa application. It found that as he did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue was whether he satisfied the Schedule 3 criteria unless there were compelling reasons for not applying those criteria as required under cl.820.211(2)(d)(ii).
The Tribunal found that as the visa application was not made within 28 days of “the relevant day” as defined in criterion 3001 in Schedule 3 to the Regulations (being 15 March 2010, the last day on which the Applicant held a substantive visa) he did not meet a relevant Schedule 3 criterion. Accordingly it went on to consider whether there were compelling reasons for not applying the Schedule 3 criteria.
The Tribunal observed:
22. 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 the 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 anytime, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
The Tribunal stated that it “also” had regard to policy guidance in the Department’s Procedures Advice Manual (PAM 3) which stated that the intent of the waiver provisions was to allow persons whose circumstances were genuinely compelling to regularise their status, but observed that these provisions were not intended to give, or to be perceived to give, an “unfair advantage” to persons who failed to comply with their visa conditions or “deliberately manipulate their circumstances to give rise to compelling reasons”.
The Tribunal recognised that it was not bound by departmental policy and that what amounted to compelling reasons in each case was “a question of fact, having regard to all the circumstance of the case”. It stated that to determine whether compelling circumstances existed, it was “required to look at all of the circumstances of the case”.
Under several headings, the Tribunal then considered various issues. First, it addressed the: “Reasons for not holding a substantive visa”. It referred to the Applicant’s confirmation of his immigration history (which it had previously summarised) and noted (without discussing) the circumstances which resulted in him not having a substantive visa when he lodged the Partner visa application, including his unsuccessful application for a Protection visa. The Tribunal stated that it was not satisfied that the reasons advanced by the Applicant for not holding a substantive visa (which were not set out in its findings) “justify waiver of the Schedule 3 criteria”.
Under the heading: “Length of the parties’ relationship” the Tribunal referred to the couple’s “consistent” oral evidence that they met in April 2012 and that the Applicant moved into the sponsor’s home in June 2012. The Tribunal accepted that they had been living together for around 18 months at the time of the Partner visa application and that at the time of the decision had been living together for more than 4 years.
The Tribunal referred to the Explanatory Statement accompanying the “introduction of the provisions”. It appears that this was a reference to the Explanatory Statement to the Migration Regulations (Amendment) 1996 No.75 (Cth) which introduced the “waiver” provision in cl.820.211(2)(d)(ii) in relation to the Schedule 3 restrictions on non-citizens applying onshore for residence on spouse grounds. The Tribunal observed that the Explanatory Statement stated that the inclusion of a waiver provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen sought to apply for a Partner visa, but would otherwise would be forced to leave Australia and apply off-shore. The waiver was said to have been introduced to provide “flexibility” for the Minister where compelling circumstances arose, but, according to the Tribunal, only where there were reasons of a “strongly compassionate” nature such as circumstances in which there were Australian born children from the relationship or the Applicant and sponsor were already in a long standing relationship which had been in existence for two years or longer.
The Tribunal stated that it had taken into account the length of the parties’ relationship and the relevant Explanatory Statement. It recognised that a long standing relationship was “one” factor to be taken into account, but found that it “did not inevitably result in waiver”. It stated that: “After considering all of the circumstances of this case, the Tribunal does not consider that the length of the parties’ relationship is a compelling reason not to apply the Schedule 3 criteria”.
Under the heading “[the sponsor’s] miscarriage” the Tribunal referred to the sponsor’s miscarriage in October 2012 when she was about 9 weeks pregnant. It recorded her evidence that the pregnancy was planned, but that they had not attempted to have a child since that time because she was highly distressed by the miscarriage and could not face going through the same thing again. It also recorded the sponsor’s evidence that she had difficulty coming to terms with her loss, so she had decided to visit a cousin in the United Kingdom in October 2015 to assist with her psychological recovery.
The Tribunal accepted, on the basis of the oral evidence and hospital records provided, that the sponsor had a miscarriage in October 2012 which caused great distress to both parties. It referred to the evidence of the sponsor’s father that he had always had a very close relationship with his daughter and was very upset when he learnt about the miscarriage. However the Tribunal also had regard to the fact that there was no independent evidence before it to indicate that the sponsor had been diagnosed with a mental health condition or that she had required any ongoing medical or psychological treatment as a result of the miscarriage. While it acknowledged the emotional distress caused to the couple, the Tribunal did not consider “that this is a compelling reason to waive the Schedule 3 criteria”.
The Tribunal then considered: “The requirement for [the Applicant] to undertake compulsory military service”. It referred to the document from the Egyptian Consulate General and the Applicant’s confirmation that his Egyptian passport had expired and that he was unable to obtain a replacement until he completed three years military service in Egypt, although he could obtain a certificate that would enable him to return to Egypt. The Tribunal acknowledged that the Applicant was concerned that he and the sponsor may not be able to have a child after he returned to Australia, because of the sponsor’s age. It recorded that he claimed that he did not speak to his father and could not live in the family home due to his religious views and that he would find it difficult to support himself while he was in the military, as the only payment he would receive would be a travel allowance and he would have nowhere to live and no money.
The Tribunal found:
35. The Tribunal acknowledges that [the Applicant] would be required to undertake compulsory military service in Egypt. Although he has not spoken with his father for some years, [the Applicant] gave oral evidence at the hearing that he has regular telephone contact with his mother. [The Applicant]’s mother is retired and does not have an independent source of income, so may not be able to provide [him] with any financial assistance while he undertakes military service. However, [the Applicant] has a number of siblings, two of whom live in the Netherlands, and they may have some capacity to provide [him] with financial support while he completes his military service in Egypt. [The Applicant] said his brother sent money to him in Australia before he was granted work rights. [The sponsor] is currently employed on a full-time basis and may be able to provide some financial assistance to [the Applicant] during his period of military service.
36. The Tribunal accepts that unless [the sponsor] decides to travel to Egypt with [the Applicant], the parties will inevitably have to delay their plans to have a child. Given [the sponsor] is 32 years old, the Tribunal does not accept that there are age-related maternity issues in this case.
The Tribunal stated that it “does not consider that the requirement for [the Applicant] to undertake compulsory military service or delaying the parties’ plans to conceive a child while [the Applicant] is offshore are compelling reasons not to apply the Schedule 3 criteria”.
Under the heading: “[The Applicant’s] fears of returning to Egypt” the Tribunal referred to the Applicant’s submission to the Department that he feared returning to Egypt due to his religious beliefs. It recorded that he had submitted that his family did not wish to see him. However it also referred to the Applicant’s oral evidence that he had regular contact with his mother and siblings and that he did not wish to pursue this claim. The Tribunal recorded that the Applicant had told it that he could not return to live in his family home in a village but that he could go to a city and that he had no fears for his safety if he returned to Egypt to lodge the Partner visa application. The Tribunal found that: “This is not a compelling reason for the waiver”.
Under the heading: “Financial hardship” the Tribunal referred to the Applicant’s oral evidence that he had established a painting and decorating business in Australia and earnt between $50,000 and $60,000 per annum. He sometimes employed casual staff to assist him. It referred to the sponsor’s evidence that there were overheads associated with the business which they could not meet if the Applicant was required to lodge a Partner visa application offshore and, also, that they paid rent on their apartment of $370 per week which would be difficult for the sponsor to pay without the Applicant’s income.
The Tribunal accepted that the Applicant had established a business in Australia and sometimes employed casual staff. However it was not prepared to accept that there would be recurrent expenditure, such as GST and marketing costs, during any period that the Applicant was offshore, as such costs would be only generated while he operated the business and earnt an income. It found that while it may be “inconvenient” for the Applicant to have to cease trading while he was offshore it was “open to him to resume the business when he returns”.
The Tribunal found that the sponsor “works full-time and has an independent source of income”. It found that the parties were on a week-to-week lease so that they could give notice if the sponsor did not feel able to pay the rent without the Applicant’s income or, alternatively, that she could let out the second bedroom in the apartment to assist her to meet the rent.
The Tribunal accepted that the Applicant would receive “minimal income” while undertaking military service in Egypt. However it found that “it is open to him to undertake some paid work around his military commitments”. The Tribunal also referred to the fact that “he may be able to obtain some financial assistance from his siblings or [his sponsor] while he undertakes military service”.
The Tribunal did not accept that lodging the application offshore would cause financial hardship to either party. It found that: “This is not a compelling reason for not applying the Schedule 3 criterion”.
Under the heading: “The impact on [the sponsor’s] career”, the Tribunal recorded that sponsor claimed that she would not be able to work in Egypt and that this would impact on her career. The Tribunal acknowledged that it “may be difficult” for her to find work in Egypt given that she did not speak Arabic. In this context it stated that the sponsor was currently “working on a short-term contract basis” for a government department, “so would not need to resign from her employment” if she elected to travel to Egypt with the Applicant. The Tribunal accepted that the sponsor was unlikely to be able to progress her career in Egypt, but found that it was “open to her” to live in Australia “if she prefers” and that there was “no obligation” on her to travel to Egypt with the Applicant. It found that: “This is not a compelling reason for the waiver”.
Under the heading: “The impact of separation” the Tribunal considered the parties’ claims that they had a close relationship and did not wish to be apart. The sponsor claimed she was reliant on the Applicant for physical and emotional support and that she would not be able to cope without him.
The Tribunal accepted that the parties had formed a close bond and provided one another with support and companionship. However it was not persuaded that providing emotional care and support was dependent upon living in the same household. It found that it was open to them to continue to provide psychological support to one another by the “various electronic communication methods available while the Partner visa application is processed”.
The Tribunal acknowledged that the couple did not wish to be apart, but found that any couple in a genuine relationship where an applicant was required to lodge a Partner visa application offshore was likely to face some emotional and financial hardship. It found: “These are the circumstances that face all parties in a genuine relationship who are required to lodge a Partner visa application offshore.”
The Tribunal found that there was no medical evidence that the sponsor had any physical or psychological health problems or that she required the Applicant’s assistance to maintain her emotional well-being. It referred to her oral evidence that she had very close relationships with her parents and saw them regularly and to the confirmation of this by her parents. The Tribunal was of the view that the sponsor’s parents were “an alternative source of support while [the Applicant] is absent from Australia”.
The Tribunal stated that it “does not consider that the emotional difficulties that may arise during a separation while waiting for a visa application to be processed is a compelling reason not apply the Schedule 3 criteria”.
Under the heading: “Overall assessment” the Tribunal stated:
Having considered all the above issues, the Tribunal is not satisfied that these matters separately and cumulatively are compelling reasons to not apply the Schedule 3 criterion.
The Tribunal concluded that as it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria, the Applicant did not meet cl.820.211(2)(d)(ii) and that there was no evidence that he met the visa requirements in the alternative subclauses in cl.820.211. Hence it found that he did not satisfy the criteria for the grant of the visa. It affirmed the decision not to grant him a Partner (Temporary) (Class UK) visa.
The Grounds of Judicial Review and Evidence
The Applicant sought review by application filed on 7 October 2016. He relies not only on the grounds in the application, but also on other issues which he raised in various ways.
The Applicant is self-represented. In support of his application he sought to rely on four affidavits. The affidavit which accompanied the application attached a copy of the Tribunal’s decision. There was no objection to this affidavit.
The second affidavit was the affidavit of Toufic Laba Sarkis filed on 13 October 2016 which annexed a transcript of the Tribunal hearing. The First Respondent submitted that the Applicant had not explained the relevance of the transcript in his grounds of review and that it did not assist to advance his case.
It is the case that the Applicant (who did not file pre-hearing written submissions as such) had not explained the relevance of the transcript in a conventional manner prior to the hearing. However, an affidavit sworn by him on 3 September 2018 and filed on 4 September 2018 is in the form of assertions amounting to submissions which do take issue with the Tribunal hearing. Further, in his affidavit of 3 January 2019, at the hearing and in post-hearing submissions, the Applicant elaborated on his concerns about the Tribunal hearing. In these circumstances, the Applicant has explained the relevance of the transcript. It is relevant and admissible.
The third affidavit relied on by the Applicant was his affidavit of 3 September 2018. The First Respondent acknowledged that the assertions in that affidavit were largely in the form of submissions and addressed it on that basis. I consider that it should be treated as a submission.
However, the Applicant attached to the third affidavit originals and translations of undated text messages which he confirmed post-dated the Tribunal decision. These are apparently intended to support the proposition that his life is at risk in his home country because he became a Christian in 2018. There is no evidence or suggestion that the Applicant claimed he was a Christian (or was becoming a Christian) in support of his Partner visa application or before the Tribunal. This material was not before the Tribunal considering his Partner visa application. Its relevance to the issue of possible jurisdictional error is not apparent. The annexures are not admissible.
The Applicant also swore a fourth affidavit of 3 January 2019. As the First Respondent submitted, this affidavit should also be treated as a submission. It was addressed as such by the First Respondent.
The fourth affidavit identifies, by reference to an email from a firm of solicitors, three additional grounds of review. The Applicant explained in this affidavit that he had not been able to engage the services of that firm because, as was stated in the annexed email to him, their professional costs of representing him in the proceedings before this court (which would include senior counsel) would be $22,000.
The Applicant indicated that he could not afford that amount. He nonetheless wished to rely on the grounds foreshadowed in this email, which I have considered. The Applicant also referred in his fourth affidavit to particular parts of the transcript of the Tribunal hearing, in which matters were raised which he submitted had not been considered by the Tribunal in determining whether there were compelling reasons. I have had regard to this contention.
However, also annexed to this affidavit were ten photographs, apparently of the Applicant in a social context. There is no evidence that these photographs were before the Tribunal or that they were dated before the Tribunal decision. Their relevance is not apparent. The Applicant may have mistakenly thought that merits review is available in this court. These photographs are not relevant or admissible.
Copies of a number of online press articles which post-dated the Tribunal decision and related to persecution of Christians in Egypt (the Applicant’s home country) were also attached to the fourth affidavit. These articles were not before the Tribunal. They are not evidence that the Tribunal failed to take into account. The same may be said in relation to a 2018 letter from a Minister of the Arabic Evangelical Presbyterian Church certifying that the Applicant was baptised in January 2018. This material is neither relevant nor admissible. However the Applicant’s concern that the Tribunal failed to ask him about or to consider his religion as part of all the circumstances amounting to compelling reasons is discussed below.
Also attached to the fourth affidavit are two Arabic language documents, with English translations. They appear to be 2012 and 2014 documents from an Egyptian court. They record findings that the Applicant committed crimes in 2012 and in 2014 through borrowing and not repaying money (in circumstances involving use of a power of attorney) and that he was sentenced “in absentia” to imprisonment for one year on each occasion. The relevance of this material is not apparent. While these documents do not post-date the Tribunal decision, there is no evidence that the Applicant raised any issue with the Department or the Tribunal about or arising out of these documents or that he claimed to have any convictions. This material has not been shown to be of any relevance to the issue of whether the Tribunal fell into jurisdictional error. Similarly, it is not clear why a copy of the Applicant’s Egyptian personal identity card and translation is attached to the fourth affidavit. No issue was raised by the Tribunal in relation to the Applicant’s identity. This material is neither relevant nor admissible.
At the hearing, the Applicant tendered handwritten submissions, apparently prepared with the assistance of his sponsor’s father (which I accepted). After the hearing, he filed further written submissions and, in response to the Minister’s post-hearing submissions, filed submissions in reply. Each of these documents raised various overlapping concerns about the Tribunal decision and procedures, which I have considered.
Grounds in the application
The first ground in the application is:
The Tribunal misinterpreted compelling circumstances and failed to see that what the applicant and his partner went through such as miscarriage, long term relationship, inability of applicant to be reunited with his Australian partner for at least three years as he would have to complete his military service in Egypt the decision to waive Schedule 3 is not only harsh but an error which the Court can clearly see, contrary to the views of the Member of the Tribunal, there are indeed compelling reasons which were not considered properly by the Tribunal.
In his submissions and affidavits the Applicant repeated and elaborated on what in essence amounted to a contention that the Tribunal failed to consider “properly” the combination of circumstances that he relied on as constituting compelling reasons, including the matters referred to in ground 1 and also the fact that his relationship with his father was not good, the implications for him on return to Egypt of having to undertake three years military service and the emotional, financial and psychological impact of separation on his sponsor as raised at the Tribunal hearing and in submissions to the Tribunal.
In post-hearing submissions the Applicant referred to Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272; [2018] FCA 93 in support of the proposition that the Tribunal failed to appreciate the nature of his case or to address the case he sought to make.
The First Respondent submitted that ground 1 failed to identify any arguable jurisdictional error in the Tribunal’s decision and instead sought impermissible merits review. It was submitted that it was apparent that the Tribunal had considered the matters advanced by the Applicant in assessing whether there were compelling reasons for not applying the Schedule 3 criteria and that the findings the Tribunal made in relation to the individual listed factors were all findings that were open to the Tribunal and were not such as to reveal illogicality or irrationality (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131]) or that the Tribunal had not understood the Applicant’s claims. The First Respondent also contended that the Tribunal’s conclusion was not one at which no rational or logical decision-maker could have arrived on the same evidence and that it did not lack an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]). It was pointed out that the Tribunal had set out its consideration of the circumstances raised by the evidence, that in respect of each of those circumstances it had individually concluded that none of these amounted to a compelling reason and that it had also considered that the circumstances were not sufficient cumulatively.
The First Respondent observed that Farhat was decided in a different statutory context. It concerned a delegate’s decision to refuse the appellant’s request to waive condition 8503 under subsection 41(2A) of the Act. Kenny J found that the decision-maker had failed to appreciate the nature of the appellant’s case or to address the case the appellant sought to make. In upholding an appeal from this court, Kenny J stated at [44] that the appellant’s case was not simply as had been described by the delegate, but “was a different one” and that the delegate had not understood and addressed the case that the appellant sought to make.
The First Respondent accepted, as a matter of principle, that a decision-maker could fall into error if he or she failed to appreciate the nature of an applicant’s case. It was submitted, however, that in this case the Tribunal had understood and considered the Applicant’s claims and evidence relating to whether there were compelling reasons for waiving the Schedule 3 criteria, so that in so far as Farhat could be considered relevant, it was distinguishable on its facts.
Consideration
The issue for the Tribunal under cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations was whether there was “a sufficient basis to move [it] to waive” the otherwise applicable criteria in Schedule 3 to the Regulations (see MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478 at [10]). As Bromberg J stated in MZYPZ at [10]: “In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria” (see Paduano vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] per Crennan J). His Honour also observed (at [10]) that the circumstances must be “sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the criteria” (see Babicciv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24]). As Whitlam J suggested in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10] (cited in MZYPZ at [11]):
… Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment…
Further, as Bromberg J pointed out in MZYPZ at [12], in the evaluative judgment to be made, the decision-maker “may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.”
The criterion in issue requires a state of satisfaction on the part of the decision-maker. Care is to be exercised in finding jurisdictional error in a situation where the decision-maker’s satisfaction that a certain state of affairs exists is in question and that state of affairs includes factual matters (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [36] per McHugh and Gummow JJ and the discussion in MZYPZ at [14] – [19]). However jurisdictional error may be identified in the process by which the decision-maker reaches the state of satisfaction in question. For example, there may be circumstances in which it can be inferred that the Tribunal is applying the wrong test or is not in reality satisfied of the necessary matters or there is a misconception as to the nature of the fact finding process required.
In MZYPZ at [19] Bromberg J suggested that cl.820.211(2)(d)(ii) obliged the Tribunal to “consider” whether compelling reasons existed. His Honour stated that:
… A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the Tribunal was bound to take into account. To comply with the duty conferred, the Tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives [the Tribunal’s] genuine consideration” …
His Honour went onto refer to authorities which cited Tickner v Chapman (1995) 57 FCR 451 at 462; [1995] FCA 987 in relation to the need for an active intellectual process in such “consideration” and to the obligation of a decision-maker to evaluate the relevant facts.
In so far as error is suggested on this basis, I have borne in mind the need for caution in determining whether there has been a proper, genuine or realistic consideration (see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at [33]-[38]) and that as stated in BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 at [61]:
… the question to be asked is “whether, on the available materials and a proper consideration of the reasons (that is, with an eye that is not attuned to the discovery of error) there has been a performance of the statutory task of undertaking a review, by reference to the available evidence, of the merits of the claims made by the [applicant] before the Tribunal.
In this case the Applicant raised a combination of circumstances in support of the contention that there were compelling reasons justifying waiver of the Schedule 3 criteria. The Tribunal observed that the reasons should be sufficiently convincing to move it to exercise its discretion to waive the requisite criteria, that the circumstances must be sufficiently powerful to lead to a positive finding in favour of a waiver and that circumstances which constitute compelling reasons may arise at any time. It understood that it was not bound by departmental policy and correctly stated that what amounted to compelling reasons in each case was a question of fact having regard to “all” the circumstances of the case. Indeed, the Tribunal repeated that to find whether compelling circumstances existed it was required to look at all of the circumstances of the case.
However, in its fact-finding the Tribunal simply found that particular issues raised by the Applicant and his sponsor did not separately constitute a compelling reason not to apply the Schedule 3 criteria (or, in one case, that two factors were not compelling reasons). It then concluded generally (without further consideration or explanation) that having considered all the “above” issues (that is, the matters that did not individually amount to a compelling reason not to apply the Schedule 3 criteria) it was not satisfied that these matters “separately and cumulatively” were compelling reasons not to apply the Schedule 3 criteria.
In reaching its conclusion about the four year relationship between the Applicant and the sponsor the Tribunal stated that a long-standing relationship did not “inevitably” result in waiver and did state in that context that: “After considering all of the circumstances of this case, the Tribunal does not consider that the length of the parties’ relationship is a compelling reason not to apply the Schedule 3 criteria”. However the Tribunal otherwise gave no reasons for this conclusion. None is apparent from its consideration of the other individual circumstances of the case, apart from the fact that each such circumstances was not seen by the Tribunal as in itself constituting a compelling reason. Thus, in relation to the sponsor’s miscarriage, the Tribunal considered only whether, in itself, the emotional distress caused by the miscarriage was “a compelling reason” to waive the Schedule 3 criteria.
In addition, in part of its consideration of individual factors the Tribunal failed to take into account aspects of the evidence before it. For example, the Tribunal’s speculation that relatives of the Applicant “may have some capacity” to provide him with financial support “while he completes his military service” (apparently, because one of his brothers had sent money to him in Australia before he was granted work rights and because his sponsor was “currently” employed full-time) revealed no consideration of the extent of the financial assistance necessary for the Applicant, as a person who claimed he would not be in receipt of any income from the army beyond a travel allowance, could not live at his family home in Egypt and would not be provided with accommodation by the military.
The only reason given for not accepting that there were any “age related maternity issues” if the 32 year old sponsor had to delay plans to have a child (while the Applicant served three years of military service) was her age of 32.
There was no recognition by the Tribunal (in this part of its reasons or more generally) of the fact that the length and compulsory nature of the Applicant’s military service obligation distinguished this case from the usual Partner visa application in which an issue of waiver of Schedule 3 criteria arose. In considering the impact of separation, in paragraph 49 of its reasons the Tribunal referred to this as a case where there would be a separation “while waiting for a visa application to be processed”. There was no consideration of the fact that, no matter how quickly any visa application might be processed (in circumstances where the evidence before the Tribunal indicated that the parties were in a genuine de facto relationship), the Applicant would not be able to leave Egypt for some three years, as he would not be able to get another passport until he completed three years of compulsory military service.
As to the Tribunal’s consideration of financial hardship, while reasonable minds may differ, it cannot be said that no reasonable decision-maker would have been of the view that it would be open to an applicant who had to apply for a visa offshore to “resume” a business which he had built up in Australia. However there was no consideration of this Applicant’s claim that he would have to be absent for at least three years if he had to return to Egypt, not simply to get a visa, but also to complete compulsory military service.
In this particular context, the Tribunal also overlooked the fact that the sponsor’s work situation was that she had a short-term (six week) contract. It is not clear how, on the evidence, the Tribunal found that she “has an independent source of income”. While the Tribunal subsequently had regard to the fact that the sponsor was then currently working on a short-term contract (in considering that she would not need to resign from employment to travel to Egypt), this does not support the finding that she had an independent source of income or a capacity to provide financial assistance to the Applicant in any meaningful sense during his period of military service.
A more significant issue in relation to the Tribunal’s finding about financial hardship relates to its statement that it would be “open” to the Applicant to undertake some paid work “around” his military commitments. There was no logical connection between the evidence before the Tribunal and this finding. The Applicant’s evidence to the Tribunal was that he was not going to have time to work, as the army would give him around two to three days off every month or possibly four days every two or three months to see the family and that was all. The Tribunal asked the Applicant (at p.29 of the transcript): “So how would you be if you’re not going to live with your family? How would you be supported? How would you will have accommodation and an income in Egypt?”. He replied: “I don’t know” and confirmed to the Tribunal that he would not get any money apart from travel expenses. He explained that other people doing military service supported themselves by living with their families (which he had said he could not do).
Having regard to the Applicant’s evidence in relation to his living arrangements (that he could not live in military accommodation and would have to find somewhere to live away from his family) and his limited capacity to take time off from his military commitments, contrary to the First Respondent’s submission, I do not accept that it was reasonably open to the Tribunal to find that the Applicant could undertake some paid work around his military commitments. It is the case that this finding was but one of a number of findings about potential avenues the Applicant might pursue for financial support (see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55]). Even if on its own it was not such as to establish extreme irrationality or illogicality such as to amount to jurisdictional error, it was a finding along the way (see SZMDS at [132]), which formed part of the reason that the Tribunal did not accept that “lodging the application offshore” would cause financial hardship to either party and to find that financial hardship was not in itself a compelling reason to not apply the Schedule 3 criteria. Relevantly, the reasoning in this respect infected the generally expressed and unexplained conclusion that the Tribunal was not satisfied that the individual matters outlined “cumulatively” amounted to compelling reasons for not applying the Schedule 3 criteria.
While I am not persuaded that the Tribunal’s approach to these individual factors in itself demonstrates the extreme illogicality necessary to constitute jurisdictional error in the sense considered in SZMDS at [130]-[135], what is absent from the Tribunal decision is any consideration of why these factors did not cumulatively amount to compelling reasons.
In the absence of such explanation, it appears on the face of the Tribunal decision that it proceeded on the basis that each matter raised in support of the contention that there were compelling reasons must in itself be a compelling reason. There was no proper, genuine and realistic consideration, in the sense of active engagement beyond a cursory consideration, with the Applicant’s contention (as presented in his agent’s submission) that a combination of circumstances amounted to compelling reasons in his case.
The Tribunal appears to have been of the view that it would only be if a factor, such as the length of the parties’ relationship, was in itself a compelling reason, that it could be evaluated as a positive factor in considering whether, considered cumulatively, there were compelling reasons to not apply the Schedule 3 criteria. It has not been suggested by the First Respondent that compelling reasons could only be established by a combination of individual compelling reasons. That would be contrary to the acknowledgment by Bromberg J in MZYPZ at [12] that: “In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances”.
The Tribunal’s approach reveals that it proceeded on the basis that compelling reasons would only be established if there was more than one compelling reason, rather than considering whether a combination of matters which, while not individually amounting to a “compelling reason”, seen as a whole in all the circumstances constituted compelling reasons not to apply the Schedule 3 criteria. As Bromberg J pointed out in MZYPZ at [12]: “Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred” (emphasis added).
The Tribunal’s reasons reveal no process of assessment of the weight to be given to any of the various matters relied on by the Applicant, beyond the findings that each such matter individually was not a compelling reason. As explained in MZYPZ, it was necessary for the decision-maker to consider the circumstances as a whole in the context of cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations. The Applicant and his agent raised several matters, not as each necessarily amounting to a compelling reason, but as amounting cumulatively to compelling reasons. This was not considered by the Tribunal.
While Farhat concerned a different context, the similarity between Farhat and this case is that the Tribunal misunderstood or failed to genuinely consider the basis on which the Applicant’s claim was put or arose on the material before it. The case the Applicant sought to make was not limited to a contention that each individual issue which he raised was necessarily in itself such as to amount to a compelling reason, but rather also asserted that the combination of all of the circumstances which he raised were such as to constitute compelling reasons for waiving the Schedule 3 criteria.
The Tribunal failed to consider properly or have regard to “all” of the circumstances in determining whether the matters raised by the Applicant, considered cumulatively, amounted to compelling reasons to not apply the Schedule 3 criteria. The manner in which the Tribunal proceeded was such that it erred in carrying out its statutory obligation to review the decision of the delegate.
Accordingly the matter should be remitted for reconsideration by the Tribunal. However, for the sake of completeness, I have also considered the other grounds relied on by the Applicant.
Ground 2
I am not satisfied that jurisdictional error is made out on the basis suggested in ground 2 in the application. It is:
The reasons advanced by the applicant, his wife, and her parents, are sufficiently powerful to lead a decision maker to make a positive finding in favour of waiving the required criteria. The Tribunal acted contrary to the law and misapplied the law and misunderstood that consequences of the miscarriage and underestimated the emotional and financial as well as psychological factors which would affect both the Australian citizen and her family as well as the visa applicant who will be deprived of his wife for over three years because of his military service. While the Tribunal accepted that the couple have been living together for more than 4 years, the Member failed to see and accept the prejudice and harm which will result if the applicant is forced to leave Australia and apply offshore. The Tribunal failed to understand the strong compassionate nature and the psychological trauma which the sponsor is still enduring as a result of a miscarriage in October 2012.
As the First Respondent submitted that, as drafted, this ground seeks impermissible merits review. It is for the Tribunal to make the evaluative determination of whether there are compelling circumstances, not the court. However, insofar as this ground refers to the combination of circumstances advanced by the Applicant, as indicated, the Tribunal fell into error in the manner discussed above.
Ground 3
The third ground is:
The Member said that there is no obligation on the sponsor to travel to Egypt with her partner. Such comment is against the strong relationship and against the evidence given by all parties under oath.
This ground also seeks merits review. The Tribunal acknowledged elsewhere in its reasons that the Applicant and the sponsor did not wish to be apart. No jurisdictional error is established on this basis.
Religion issue
In his submissions the Applicant appeared to contend that the Tribunal had erred in failing to consider his religion. He claimed that he was a Christian (who had been baptised in 2018), but that the Tribunal had not afforded him the opportunity to present further arguments on the issue of compelling circumstances and failed to ask questions about his change of religion.
Whether this is seen as an allegation of apprehended bias on the part of the Tribunal or a failure to afford the meaningful opportunity required under s.360 of the Act, it is not made out.
In the statutory declaration in support of his Partner visa application the Applicant made no mention of religion. Nor did his sponsor. After being given an opportunity to put forward claims and information in relation to compelling reasons, the Applicant provided a further statutory declaration of December 2014 in which he claimed he had not wanted to return to Egypt after his Bridging visa ceased in January 2012 because his life would be in danger from his family, due to his religious faith, which he claimed was “Koranist”.
It is apparent from the transcript of the Tribunal hearing that the Applicant referred to religion as an issue between himself and his father. However, he was given every opportunity to elaborate on any problems, apart from military service and his partner’s age in relation to whether he had any concerns about returning to Egypt. He stated: “No I don’t have any problems” (transcript p.27). He did state that his sponsor could not stay with his family because his relationship with his father was not good, but when asked if he had any “fears” about returning to Egypt or other concerns (apart from military service), he stated (transcript p.28):
No I have nothing just was something about my religion but you know that’s my like my own decision for my religion. And I’m not actually if I go to Egypt I’m not going to go stay with my family there but I will try to see my mother and my sister.
Importantly, the following exchange then occurred (transcript p.28):
Tribunal: Cause that was one of the things that was submitted to the Department that you wouldn’t be able to go back so what you’re saying to me now is that you don’t want to pursue that.
Applicant: I don’t want to be in touch with my family with anyone you know me because everyone now in Egypt know I’m not following my family’s religion so there in Egypt people will think that’s wrong. I don’t know maybe someone he can just no problem for me there.
Tribunal: Do you have any concerns going back for your safety that’s what I’m trying to?
Applicant: If I go there in the future just going to be in the city.
Tribunal: So you won’t be with your family, that’s what you are saying?
Applicant: No I will go with my partner and I will ask my family to come see me in the city. I can’t go there in my home town anymore because like I say it’s just something about my religion and all my family they know there’s problems.
Tribunal: So if your application today wasn’t successful and you were required to go back to Egypt you’ve talked about having to do the 3 years military service do you have any other concerns other than that military service? I’m going to get you to interpret this because I need to make sure he’s understanding that.
Applicant: But I don’t want to leave my partner here.
Tribunal: Just putting that aside for a moment I know you don’t want to leave your partner obviously separated but what I’m trying to ascertain is if you if the visa application wasn’t successful and you did have to lodge the application offshore other than being required to do the military service are there any other reasons that you have any other concerns about returning to Egypt?
Applicant: No.
(transcript pp.28 - 29)
The Tribunal recognised that the Applicant had indicated that he had no fears for his safety in Egypt. No jurisdictional error is apparent in this respect. The Applicant was afforded every opportunity to raise such issues, including any concerns based on his religion. The Tribunal was not obliged to actively assist him in putting his case. Rather, its obligation was to respond to the case he raised.
Issues about the Tribunal hearing
The Applicant submitted that the Tribunal had failed to take into account matters that were raised at the hearing. He referred to his evidence about his relationship with his father, the pregnancy and miscarriage, his military service, his religion, the fact that he did not want to leave his partner, that he had emotionally been supporting his partner since they lost their child, that she would be completely heartbroken if she had to go to Egypt because she was so close to her family and friends and that she would not have anything in Egypt except him, that she could not live with his family and would not be able to work.
I bear in mind that a Tribunal decision is not to be read with an eye attuned for error in the sense considered in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259; [1986] HCA 6. It is not necessary for the Tribunal to address every single claimed circumstance individually in order to meet its obligation to give genuine and proper consideration to all of the Applicant’s circumstances. I am not satisfied that the Tribunal erred by failing to have any regard at all to any of these matters. They were considered or subsumed in the Tribunal’s discussion of individual issues. The Tribunal in some instances grouped matters together and assessed them in that way. That was open to the Tribunal, provided that it then considered the ultimate question of whether the circumstances as a whole compelled it to exercise the discretion conferred and in that sense gave a genuine consideration to that ultimate question as identified by Bromberg J in MZYPZ at [12]. It was in this last respect that it erred.
Matters raised in Applicant’s affidavit of 3 September 2018
The first concern raised in this affidavit was that the Applicant’s life was at risk due to becoming a Christian. There is no evidence that the Applicant raised his Christianity as an issue with the Tribunal. As indicated above, at the Tribunal hearing he did raise religion in a general sense, but did not elaborate on that claim. The material before the Tribunal included the Applicant’s statutory declaration of 24 December 2014 in which he claimed that his religion was Koranist. The Tribunal understood that in submissions to the Department the Applicant had stated that if he returned to Egypt, his family did not wish to see him due to his religious beliefs. However his evidence at the hearing was that he had contact with his family (other than his father) and did not wish to pursue this claim, except that he did not speak to his father and could not live in his family home due to his religious views.
Otherwise, the relevance of this contention, and also the contentions in the same affidavit about persecution of Christians in Egypt and deaths of Christian soldiers in the Egyptian army, is not clear. The decision in question related to a Partner visa. It may be that the Applicant is now seeking to raise these matters in support of his argument that there are compelling reasons to waive the Schedule 3 criteria, but these are not arguments he raised before the Tribunal, notwithstanding that he was given ample opportunity to elaborate on his claims or to raise other concerns about returning to Egypt. There is no evidence that he made any claim to the Tribunal to be a Christian. If his claim is that he has now become a Christian and that this changes things, that is not a matter that establishes jurisdictional error on the part of the Tribunal.
The other matters raised in this affidavit were assertions that the “immigration interview was not properly translated” and that the “defence lawyer in original court hearing was inadequate”.
The Applicant provided a transcript of the Tribunal hearing to the court. It does not identify any translation errors. Nor is it such as to demonstrate that the standard of interpretation at the hearing was so inadequate that the Applicant was prevented from giving evidence or that any errors in interpretation were material to the conclusion of the Tribunal and adverse to the Applicant (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16]-[17]; SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29]-[32]; SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71]-[81].
The reference to a lawyer was not clarified. No inadequacy in the Applicant’s representation while the matter was before the delegate or the Tribunal has been identified. There is no assertion of fraud on the Tribunal in the sense considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35. No jurisdictional error is established on any of the bases contended for in the affidavit of 3 September 2018.
Issues raised in email of advice
Further, no jurisdictional error is established on any of the bases suggested in the email from a firm of solicitors from whom the Applicant sought advice and legal representation in these proceedings.
The email attached to the Applicant’s affidavit of 3 January 2019 suggested that the Tribunal had fallen into jurisdictional error because it had referred to Babicci when it was said to be Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32 that “sets the scope” of the expression “compelling reasons”.
However, as the First Respondent pointed out, it is clear that the Tribunal did not limit itself to circumstances that existed at the time of the visa application in considering whether there were compelling reasons for waiver. It did not err in the manner identified in Waensila.
If this ground was intended to refer to the fact that Babicci considered the existence of “compelling circumstances” in a different statutory context (reg.1.20), it was nonetheless open to the Tribunal to refer to Babicci in considering what constituted compelling reasons (see MZYPZ at [10]). MZYPZ adopted the approach of the Full Court of the Federal in Babicci in considering the concept “compelling reasons” in cl.820.211(2)(d)(ii). No jurisdictional error is established on this basis.
The Applicant also relied on the suggestion in the email that the Tribunal “misdirects itself and ignores the explanatory memorandum and the facilitative nature of the relevant “concession” incorporated into reg.820.211 and schedule 3”. However the Tribunal referred expressly to the Explanatory Statement to the Migration Regulations (Amendment) 1996 No.75 (Cth) (which was also quoted in Waensila per Robertson J at [13]).
The Applicant’s reference to the facilitative nature of the concession incorporated in cl.820.211 and Schedule 3 appears to be a reference to the fact that, prior to the introduction of the applicable form of cl.820.211(2)(d)(ii), there was less flexibility for the decision-maker to respond to compelling circumstances. However the Tribunal did not err in failing to understand the intention of the waiver provision. It referred to the introduction of greater flexibility for the decision-maker if and when compelling circumstances arose. It indicated that in some circumstances a waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived. Its error was in misunderstanding the Applicant’s case or failing to complete the task required in determining whether there were in fact compelling reasons in the circumstances before it.
The third contention in the email was that “the policy” (which is presumably a reference to the departmental policy referred to by the Tribunal) was “ultra vires”. It was stated that the Tribunal had clearly referred at paragraph 25 (presumably intended to be a reference to paragraph 23 and/or 24) to the “discredited policy”.
The Applicant did not refer to the ultra vires argument in his affidavit of 3 January 2019 or elsewhere in submissions. In any event, the basis on which it was intended to be contended that the policy was ultra vires does not arise for consideration in this case. The Tribunal understood, as a matter of principle, that it was not bound by departmental policy and that what amounted to compelling reasons in each case was a question of fact having regard to all the circumstances of the case. This is not a case in which it has been established the Tribunal limited its inquiry or the exercise of its discretion by importing impermissible matters referred to in policy into its reasoning.
Other Submissions
At the hearing the Applicant tendered a handwritten submission in which it was contended that the Tribunal had misunderstood or failed to consider properly the compelling evidence before it or that it had fallen into error in the manner suggested by the lawyer the Applicant had consulted. These matters are considered above. The submission also disagreed with the Tribunal’s conclusions and asserted that there were “indeed” compelling reasons. In this respect it seeks merits review.
This strongly expressed submission does reflect the concern that the Tribunal failed to have regard to the combination of matters raised by the Applicant and his sponsor considered above. It does not otherwise establish jurisdictional error.
In post-hearing submissions the Applicant contended that the Tribunal’s decision was affected by legal unreasonableness, in that it was said to have acted contrary to the evidence before it. As discussed above, notwithstanding some concern about aspects of the Tribunal reasoning, I am not persuaded that the extreme illogicality necessary to establish illogicality or irrationality affecting the decision or legal unreasonableness in the decision-making process or the outcome has been established (see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 and Singh v Minister for Home Affairs [2019] FCAFC 3). I bear in mind that the standard of legal unreasonableness is a demanding standard. The courts do not lightly interfere with the exercise of a statutory power involving an area of discretion (in this case the decision-maker’s satisfaction) and there is a need to avoid descending into merits review. Rather than being legally unreasonable, in my view the Tribunal decision is one which is more correctly characterised as revealing a failure by the Tribunal to properly consider the Applicant’s claim and the legal issue before it and in that sense a failure to complete its statutory task.
It has not been established that the Tribunal failed to comply with s.425 of the Act (as the Applicant submitted post-hearing). Clearly this was intended to be a reference to s.360 of the Act. There is nothing to indicate that the Tribunal failed to comply with the procedural requirements in relation to the invitation to the Tribunal hearing. It is abundantly clear from the transcript of the Tribunal hearing that it raised with the Applicant dispositive issues and he was plainly afforded sufficient opportunity to give evidence and present arguments about determinative issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
The Applicant complained about the “surprise presence” of two people at the Tribunal hearing without prior notice to him. Section 365 of the Act provides that a review of this nature is normally to be in public. This was not a hearing of an application for a Protection visa, which must be in private. At the start of the hearing the Tribunal raised with the Applicant the fact that there were two Tribunal employees (who were not Tribunal members) who were observing the hearing. It checked with him that he did not have any concerns about this. The Applicant told the Tribunal that he did not mind. The Tribunal explained that it was for their training and he replied “no worries, no worries”. He did not raise any public interest or practicability concerns (see s.365(2) and (3) of the Act). No jurisdictional error is established on this basis.
However, as jurisdictional error has been established, the application should be remitted for reconsideration according to law.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 9 March 2020
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