AXN23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 556
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AXN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 556
File number: SYG 638 of 2023 Judgment of: JUDGE LAING Date of judgment: 30 June 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant a Return (Residence) (Class BB) visa – whether the Tribunal misconstrued or misapplied cl 155.212(3) - whether the Tribunal’s reasoning process was deficient, unsupported by evidence, illogical and/or irrational – application succeeds Legislation: Migration Regulations 1994 (Cth) Cases cited: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Division: Division 2 General Federal Law Date of last submissions: 22 May 2023 Date of hearing: 11 April 2023 Place: Sydney Number of paragraphs: 37 Counsel for the Applicant: Mr A Schonell Solicitor for the Applicant: Rasan T Selliah & Associates Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 638 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AXN23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 7 September 2020.
2.A writ of mandamus issue directing the second respondent to determine the application for review according to law.
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 LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant a Return (Residence) (Class BB) visa (return visa).
BACKGROUND
The Applicant in these proceedings (to whom I will refer as the “Applicant”, or the “mother”) is the visa applicant’s mother. I will refer to the visa applicant as the “visa applicant” or simply the “applicant” in these Reasons for Judgment.
The visa applicant is a Sri Lankan national. She applied for the return visa on 4 December 2017. At the time of application, the return visa contained two subclasses: Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). The visa applicant sought to meet the criteria for Subclass 155.
On 7 December 2018, the Delegate refused the application. The Applicant applied to the Tribunal for review of the Delegate’s decision on 14 February 2019.
On 7 December 2020, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was the visa applicant’s ability to meet cl 155.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which was relevantly set out in the Tribunal’s decision as follows:
155.212…
(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).
…
(3) The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:
(a) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:
(i) holds a permanent visa; or
(ii) last departed Australia as an Australian permanent resident; or
(iii) last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or
(b) was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence.
The Tribunal observed that the visa applicant was unable to meet cl 155.212(2), as she had spent no time in Australia over the period of 5 years immediately before the visa application (at [32]-[34]).
The Tribunal considered whether the visa applicant met the substantial ties criterion at [35]-[74] of its decision. The Tribunal observed that the visa applicant had not claimed to have substantial business ties with Australia of benefit to Australia (at [38]). The Tribunal was not satisfied that the visa applicant had substantial cultural ties to Australia. In this regard, the Tribunal did not accept that the visa applicant’s involvement in cultural events nine years previously and undertaking of two brief courses could be described as a substantial cultural tie with Australia. Having regard to limitations in the evidence before it, the Tribunal was not persuaded to place significant weight upon the visa applicant’s claims to have an ongoing connection with the local Sinhalese community in Australia. Whilst the Tribunal acknowledged that the visa applicant may have a commitment to nature and environmental causes, it was not persuaded this established a substantial cultural tie with Australia (at [39]-[47]).
In assessing whether the visa applicant had substantial personal ties to Australia, the Tribunal had regard to examples in the PAM3 Guidelines (at [48]-[53]). The Tribunal considered that the visa applicant’s “most substantial familial ties are with her husband and children” and noted that “her family life with them has in its entirety been based in Sri Lanka” (at [54]).
The Tribunal noted the Delegate’s observation that the visa applicant’s relationship with her mother was not of a type for which family reunion might be available under the Family Stream of the Migration Program and that her mother could not be regarded as a member of the visa applicant’s family unit in the absence of dependency (at [55]). However, the Tribunal considered that it was nonetheless required to assess whether the bond was “a substantial tie and if so, if it [was] of benefit to Australia, rather than being bound by how Departmental procedures evaluate a personal tie” (at [56]).
As the Tribunal’s reasoning at [57]-[62] is a significant focus of these proceedings, it is appropriate to set it out fulsomely:
57.The Tribunal considered whether the applicant has personal ties with Australia. The applicant contends that in the particular context of her background, where her mother largely raised her as a single parent, she and her mother are very close and this claim is supported by her mother, who gave evidence at hearing that she and the applicant communicate on a near daily basis. The Tribunal acknowledges this claim and is satisfied there is a close emotional connection between the applicant and her mother. The Tribunal is not persuaded the applicant has a close and enduring connection to her stepfather, as this is not demonstrated by the evidence. Indeed the evidence, emphasising as it does the connection between the applicant and her mother developing in a largely single parent familial configuration belies any contention her mother’s current spouse was an influence during the applicant’s formative years. Whilst the written submission received by the Tribunal point out that the applicant came to Australia with her mother and stepfather, she returned to Sri Lanka relatively shorty thereafter and has not returned to Australia in over a decade. There is also the claim that the applicant’s stepfather has travelled to Sri Lanka frequently and has in fact spent more time there in recent years than he has in Australia. However the available evidence suggests this was so that he could spend time with and look after his mother, rather than because of his tie with the applicant. Whilst acknowledging the applicant’s wish to now reside in Australia with her immediate family, the Tribunal is not persuaded the evidence establishes she was in or around the time of application regarding Australia as home. Notwithstanding these findings about the applicant’s intention to reside in Australia and as to the connection between the applicant and her stepfather, the Tribunal is satisfied the connection between the applicant and her mother constitutes a substantial personal tie which the [a]pplicant has with Australia.
58. The Tribunal then considered whether the personal ties the applicant has with her mother are of benefit to Australia. PAM3 guidelines suggest that substantial personal ties may be of benefit to Australia in the sense that an applicant is, or has been, a participating member of the Australian community and economy, and that their ties enrich the lives of individual Australian residents and citizens.
59. The applicant and her mother contend that it would enrich her mother’s life for her to have increased access to the applicant and her children. The Tribunal acknowledges this claim. However the Tribunal is of the view that the applicant’s lack of participation in the Australian community or economy over the past decade is a factor to be considered and the frequency of her mother’s trips to Sri Lanka to spend time with the applicant and her stepfather mitigates the weight I have given to this factor. This is because the applicant and her mother have maintained their close connection over the past decade without the applicant’s presence in, or participation in the Australian community. This has been achieved through the regular communication they have with each other by telephone or other electronic means and the frequency of her mother’s trips to Sri Lanka to visit both her and her stepfather, who is reported to have spent more time in Sri Lanka than Australia over recent years.
60. The applicant contends her wish to support her mother due to her age and relative isolation in Australia and that her capacity to look after her mother as she gets older is of potential benefit to Australia. The legislation anticipates benefit that may occur at a future point in time and the Tribunal has given some weight to this factor. However, the extent of this weight is mitigated by the lack of evidence as to her mother suffering poor health or other vulnerabilities. The applicant’s mother is at present 59 years of age and is in steady employment as a community support worker. The Tribunal is not persuaded that as a person of that age she could be regarded as inherently frail or requiring care and support.
61. The Tribunal is aware that, enabling a family unit to remain together can be considered of benefit to Australia if there is evidence of an imminent intention for the family unit to domicile themselves in Australia. The Tribunal acknowledges the applicant’s intention to domicile her family unit in Australia. However the Tribunal finds that the applicant’s family unit consists of her immediate family, being her husband and children and not her extended family, which would encompass a family structure including her mother, stepfather and in-laws. To this extent the Tribunal finds the applicant’s family unit is at the present time ‘together’ in Sri Lanka and that benefit to Australia through enabling a family unit to ‘remain’ together through facilitation of their migrating to Australia is not established. This is because it is not necessary, they come to Australia for the family unit to ‘remain’ together and it is not evident to the Tribunal that a family unit ‘remaining together’ in an offshore location is inherently of benefit to Australia.
62. A person’s connection to a close family member may provide a substantial tie with Australia that is of benefit to Australia. In the particular circumstances of this case, where it is not a matter of enabling a family unit to remain together, or a connection based on the applicant having a significant history of active participation in the Australian community or economy, the Tribunal is not persuaded the applicant’s tie to her mother is a substantial personal tie with Australia that is of benefit to Australia.
The Tribunal was not satisfied that the visa applicant’s hypothetical capacity to seek employment in the future constituted a substantial employment tie with Australia (at [63]).
At [65]-[66], the Tribunal reasoned:
65. The applicant and her mother presented as sincere and credible witnesses. There was consistent evidence that they have a close personal relationship and that her mother is also close to the applicant’s children. As discussed elsewhere in this decision, the Tribunal is satisfied this connection constitutes a substantial personal tie with Australia. The applicant has been able to maintain her relationship with her mother despite living in different countries over the past decade. In the circumstances of this case, the Tribunal is not persuaded the physical, emotional or mental health of the applicant’s mother would be adversely affected if the applicant continues to live in Sri Lanka. It is open, as indeed is demonstrated by the evidence before the Tribunal that her mother can visit the applicant and her family in Sri Lanka when the global health crisis improves and that they can maintain a meaningful connection through regular telephone contact. For these and other reasons identified in this decision, the Tribunal is not sufficiently satisfied the substantial personal ties the applicant has with Australia are of benefit to Australia. The Tribunal is also not persuaded the applicant’s past involvement with [previous studies and cultural activities] in Australia constitute a substantial cultural tie with Australia that were of benefit to Australia at the time of application in 2017.
66. The Tribunal has considered the evidence regarding the applicant’s ties with Australia, both independently and cumulatively, but is not satisfied that such ties are substantial ties that are of benefit to Australia. The Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. The Tribunal therefore finds that the applicant does not meet cl.155.212(3). As the applicant was outside Australia at the time of application, she cannot meet cl.155.212(3A). No claims have been made that the applicant meets cl.155.212(2) or cl.155.212(4). The Tribunal finds that the applicant does not meet cl.155.212 of Schedule 2.
The Tribunal therefore found that the visa applicant was unable to meet the criteria for the grant of the visa, observing that the evidence did not indicate that the visa applicant met the criteria for the alternative subclass (at [67]-[74]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [75]).
PROCEEDINGS BEFORE THIS COURT
The Applicant commenced proceedings before this Court on 14 October 2020. She ultimately relied upon the following grounds contained within a further amended application filed on 17 April 2023:
2.The second respondent's reasoning process is deficient, unsupported by evidence, illogical and/or irrational, thereby resulting in a legally unreasonable outcome.
Particulars…
2.4The second respondent stated at paragraph 59 that the close connection between the visa applicant and her mother "has been achieved through the regular communication they have with each other by telephone or other electronic means and the frequency of her mother's trips to Sri Lanka to visit both her and her stepfather, who is reported to have spent more time in Sri Lanka than Australia over recent years." There is also no rationally probative basis for this finding. Furthermore, in circumstances where the second respondent satisfied itself that the relationship between the visa applicant and her mother constituted a "substantial personal tie" to Australia it was legally irrational, illogical and unreasonable for the second respondent not to find that this substantial personal tie was of benefit to Australia, in the sense that no other rational, logical or reasonable decision maker could have come to the same conclusion as the second respondent…
2.6 The second respondent's conclusion at paragraph 62 is legally unreasonable and arbitrary. The reasoning process is irrational and illogical.
2.7The second respondent's determination at paragraph 45 that there was no "probative evidence" to support the visa applicant's claim that she had a substantial cultural tie to Australia in her ongoing connection with the ex-patriate community through her work in the Sri Lankan media was legally irrational, illogical and unreasonable, in the sense that no other rational, logical or reasonable decision maker could have come to the same conclusion as the decision maker, in circumstances where the visa applicant gave oral evidence of such a connection, the second respondent accepted the visa applicant to be a "sincere and credible witness" (at paragraph 65) and the second respondent gave no notice to the visa applicant that it intended to find there was no probative evidence of such an connection during the visa applicant's appearance before the second respondent…
4.The second respondent fell into jurisdictional error by misunderstanding and misconstruing subclause 155.212(3):
a.Subclause 155.212(3) contains a threshold. The threshold is conditioned on the existence of at least one of a number of substantial ties that are of benefit to Australia. Each tie is expressed in the alternative; the satisfaction of one being sufficient. Instead of undertaking a standalone assessment into whether the applicant has substantial personal ties which are of benefit to Australia, the second respondent weighed the applicant's personal ties against her "lack of participation in the Australian community or economy." In doing so. the second respondent undertook an assessment that departed from subclause 155.212(3), identified incorrect issues, asked wrong questions and failed to properly determine the applicant's claim according to law;
b.The second respondent considered and determined matters irrelevant to subclause 155.212(3). These matters included that the applicant's "most substantial ties are with her husband and children", that the applicant did not regard Australia as her home at the time of the application, that the applicant's mother is not part of her immediate family unit and that the applicant's mother was capable of travelling to Sri Lanka to see the applicant and/or speaking to her via carriage service. In doing so, the second respondent undertook an assessment that departed from subclause 155.212(3), identified incorrect issues, asked wrong questions and failed to properly determine the applicant's claim according to law;
c.The second respondent assessed the applicant's claim against a policy that was inconsistent with subclause 155.212(3) or, alternatively, inflexibly applied a policy without regard to the merits of the application. In doing so, the second respondent undertook an assessment that departed from subclause 155.212(3), identified incorrect issues, asked wrong questions and failed to properly determine the applicant's claim according to law;
d.The second respondent erroneously introduced the concept of membership of a family unit as contained in subclause 155.212(4) into its assessment of the applicant's claim under subclause 155.212(3). In doing so, the second respondent undertook an assessment that departed from subclause 155.212(3), identified incorrect issues, asked wrong questions and failed to properly determine the applicant's claim according to law; and also the second respondent focussed and applied on an arbitrary standard.
e.In determining the applicant's claim under subclause 155.212(3), the second respondent focussed and applied an arbitrary standard in its assessment of the benefit of the applicant's ties to Australia.
f.The second respondent misapplied the law in its findings at paragraph 62 and focused and applied the arbitrary standard in its assessment, reasoning process and the decision.
Ground 4
As I have ultimately accepted that ground 4 should succeed, it is convenient to deal with that ground first.
Ground 4 contended that the Tribunal misconstrued or misapplied cl 155.212(3). The Applicant submitted that each category of ties in that provision is expressed in the alternative; the satisfaction of one being sufficient. In, inter alia, weighing the visa applicant’s personal ties against her "lack of participation in the Australian community or economy”, the Tribunal was submitted to have departed from the assessment required under cl 155.212(3) and thus fallen into jurisdictional error.
I have had some difficulty in determining exactly how the Tribunal reasoned in this case. It is apparent that the Tribunal accepted that the visa applicant had substantial personal ties with Australia, through her relationship with her mother. The Tribunal did not expressly reject that the ties benefitted the mother, who was an Australian citizen, in various ways that were contended by the visa applicant. The Tribunal appears to have accepted that benefit to an Australian citizen was capable of amounting to a benefit to Australia. However, the Tribunal did not accept that “the applicant’s tie to her mother [was] a substantial personal tie with Australia that [was] of benefit to Australia”.
The question then is why the Tribunal did not accept this, and whether the Tribunal’s reasoning in this regard reveals a misconstruction of the criteria in cl 155.212(3).
The Tribunal’s reasoning in this regard is not entirely clear. It is possible that the Tribunal considered that, although the relationship with the mother was of benefit to the mother, the benefit was not of such a nature that it benefitted Australia. Such reasoning would not necessarily have been closed to the Tribunal. In this regard, I am not inclined to accept the Applicant’s submission that a benefit to an Australian citizen would necessarily be of benefit to Australia. Had parliament intended that a benefit to an Australian citizen necessarily suffice to meet cl 155.212(3), it would have been a simple matter to have included language to this effect in the provision.
However, the Tribunal in this case did not clearly explain why it found that the particular benefits it appears to have potentially accepted as flowing to the mother from her relationship with her daughter were incapable of amounting to any benefit to Australia. Instead, as was submitted by the Applicant, the Tribunal appears to have proceeded on the basis that the benefits to the mother and Australia were potentially coextensive, but then found that the benefits in question (to the mother and, through this, to Australia) if the visa were granted were insufficiently substantial to meet cl 155.212(3), given the visa applicant’s inability to establish other substantial ties. This is indicated by the following aspects of the Tribunal’s reasoning:
(a)The Tribunal “acknowledge[d]” the claim that it would enrich the mother’s life for her to have increased access to the visa applicant and her children (at [59]). The Tribunal did not directly reject that the mother, as an Australian citizen, benefitted from her ties to the visa applicant (including through her relationship with her grandchildren).
(b)However, the Tribunal considered (as apparently weighing against this) “that the applicant’s lack of participation in the Australian community or economy over the past decade is a factor to be considered”. The Tribunal also found that “the frequency of her mother’s trips to Sri Lanka to spend time with the applicant and her stepfather mitigates the weight… given to this factor” (at [59]). The Tribunal therefore appears to have undertaken some form of weighing process regarding the extent of the benefit to the mother (through which the benefit to Australia was being measured), including as against the visa applicant’s other categories of ties which it had found not to be substantial.
(c)At [62], the Tribunal concluded that it was “not persuaded the applicant’s tie to her mother is a substantial personal tie with Australia that is of benefit to Australia” in circumstances “where it is not a matter of enabling a family unit to remain together, or a connection based on the applicant having a significant history of active participation in the Australian community or economy”.
(d)The Tribunal “gave some weight” to the visa applicant’s contention that (i) she wished to support her mother due to her mother’s age and relative isolation in Australia, and (ii) that her capacity to care for her mother as she aged was of potential benefit to Australia. In this regard, the Tribunal appears to have considered that the benefit to Australia may be referable to a future point in time. However, the Tribunal considered that “the extent of this weight is mitigated by the lack of evidence as to her mother suffering poor health or other vulnerabilities” (at [60]). The Tribunal therefore did not directly find at [60] that the support the visa applicant may provide to her mother, including prospectively as she aged, was not “of benefit to Australia”. Instead, the Tribunal appears to have regarded the extent of this benefit as having insufficiently substantial “weight” or quality when considered against the age, ability and health of the visa applicant’s mother.
(e)The Tribunal did not directly state that the matters relied upon by the visa applicant regarding her mother were of no benefit to Australia, or that it was not satisfied that the particular benefits alleged were of any benefit to Australia (or why) when considering each of those contended benefits. Instead, the Tribunal used the composite language in its general conclusion at [62] that it was not persuaded that the visa applicant’s tie to her mother was “a substantial personal tie with Australia that is of benefit to Australia”. This seems to indicate some level of attachment by the Tribunal to the term “substantial” in assessing whether or not the tie was “of benefit”.
(f)Whilst at [65] the Tribunal used somewhat more direct language in finding that it was not “sufficiently satisfied the substantial personal ties the applicant [had] with Australia [were] of benefit to Australia”, this relied upon its earlier conclusions as well as its finding that the mother’s “health” would not be adversely impacted if the visa applicant remained in Sri Lanka. This did not explain why the benefits contended (such as the enrichment of the mother’s life as an Australian citizen through her relationship with her daughter and grandchildren, or the mother’s access to her daughter’s support as she aged) were not of any benefit to Australia. With regard to the former contended benefit, the Tribunal appears to have considered at [59] that this needed to be weighed in terms of extent (rather than existence) and that it was negated by its earlier findings that other (alternative) substantial ties had not been demonstrated. With regards to the latter contended benefit, the Tribunal did not specifically reject that it was “of benefit” to Australia at [60], but instead considered that the weight it had acknowledged ought to be given to this identified benefit was otherwise lessened by the age and condition of the mother.
The difficulty with the above reasoning is that cl 155.212(3) did not require the benefit to Australia to be of a particular quantity or quality. Whilst the criteria required the visa applicant to demonstrate “substantial business, cultural, employment or personal ties with Australia” (emphasis added), it only required her to demonstrate that any one of those categories of substantial ties were “of benefit to Australia”. This was a relatively undemanding threshold, compared with the requirement that one such category of ties be “substantial”. In contemplating the benefit as something that needed to be weighed in terms of “extent” (as opposed to something that was simply required to exist), and as being mitigated or negated by the absence of other substantial ties (where a relationship to only one such category of ties was required), the Tribunal appears to have imposed a higher threshold than that which was required under cl 155.212(3).
In finding this, I have not accepted the Applicant’s submission that it was necessarily closed to the Tribunal to have considered such matters as the visa applicant’s ties to her husband and children, whether she regarded Australia as her home, whether her mother was part of her family unit and/or whether her relationship with her mother was otherwise able to be maintained overseas in assessing whether the tie was of benefit to Australia. As was submitted on behalf of the Minister, determination of whether a substantial tie was “of benefit to Australia” was not limited by any express statutory criteria but involved an evaluative determination. That determination was potentially capable of being informed by various aspects of the visa applicant’s relationship with Australia and with her mother.
However, such concepts needed to inform rather than distract from the central question of whether (any of the) contended benefits to Australia were present and, if not, why. It is not readily apparent from the Tribunal’s reasoning, for example, why the applicant’s ties with her mother were not “of benefit” to her mother and/or Australia due to her ability to maintain contact with her mother overseas. The benefit was not required to be weighed in a comparative sense if the visa were or were not granted. The “substantial ties” were simply required to be “of benefit to Australia”.
Whilst the Tribunal appears to have doubted the claimed extent of the benefit to the mother, it did not expressly reject that the visa applicant’s substantial ties with Australia through her mother (and her mother’s relationship with her grandchildren) were of benefit to her mother as an Australian citizen. The Tribunal did not expressly reject that benefit to the mother as an Australian citizen was capable of amounting to a benefit to Australia. Its reasons for finding that the requisite benefit was not established appear to have been predicated upon its consideration that: (a) the contended benefits to Australia were insufficiently substantial to warrant a finding that cl 155.212(3) was met, including when (b) weighed (inter alia) against the absence of other substantial ties that the visa applicant had not otherwise been required to establish for the purposes of cl 155.212(3). This seems to me to involve some misconstruction of cl 155.212(3).
In coming to this conclusion, I have not accepted the Applicant’s argument that the PAM3 policy guidelines referred to by the Tribunal was necessarily inconsistent with cl 155.212(3), or that such policy was inflexibly applied by the Tribunal. The Tribunal expressly recognised at [37] of its decision that although the Department’s policies and procedures may provide guidance, they were “in no sense binding on the Tribunal and cannot deprive it of exercising its own judgment, especially in relation to discretionary powers”: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 and Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [54]. The language used in the PAM3 guidelines was permissive in nature, providing examples of ties that “may be of benefit” to Australia. Whilst they did indicate, as an example, ties that may benefit Australia in the sense of enriching the lives of Australian residents within a context of participation in the community and economy, this was only provided as one general example. The guidelines did not state that substantial economic or community participation or ties were necessary to find that substantial personal ties were of benefit to Australia.
Whilst the guidelines did indicate, as was considered at [37] of the Tribunal’s decision, that decision makers should “consider the whole of an applicant’s relevant ties with Australia and determine whether cumulatively an applicant’s substantial ties are of benefit to Australia”, I do not understand this reference in the guidelines to go beyond acknowledging that the benefit that may flow to Australia from an applicant’s ties in one category may be supported by circumstances relevant to another.
However, it is one thing to find that a tie may be of benefit to Australia when considered together with an applicant’s other ties or circumstances. It is another to approach a matter on the basis that a lack of other categories of ties negated the ability of one category of substantial ties being of benefit to Australia. Clause 155.212(3) did not require that more than one category of substantial ties be found in order for one of the recognised categories of ties to be “of benefit to Australia”. It simply required that one such category of ties be “of benefit to Australia”. The issue, then, does not appear necessarily to be with the PAM3 guidelines but rather with the approach that was taken by the Tribunal in this particular case. Although I accept that the Tribunal suggested generally in conclusion at [66] that it had undertaken its assessment “independently and cumulatively”, this general reference is belied by the analysis that was undertaken in earlier paragraphs.
For the above reasons, I accept the Applicant’s contention that the Tribunal misunderstood and/or misconstrued cl 155.212(3) of Schedule 2 of the Regulations. Had the Tribunal not done so, then it is possible that the Tribunal may have found that cl 155.212(3) was met. I therefore accept that jurisdictional error has been demonstrated under this ground.
Ground 2
Given my findings above, it is not strictly necessary to determine ground 2. However, for completeness, I note that I would not have been inclined to accept a number of the arguments raised in relation to this ground.
Ground 2 contended that various aspects of the Tribunal’s reasoning process were deficient, unsupported by evidence, illogical and/or irrational. Such grounds have high thresholds: see for example Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124], [130]-[135] per Crennan J and Bell J; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] per Robertson J and AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [23]-[26] per Mortimer J (as her Honour was). Such thresholds are not met where a decision maker comes to one conclusion simply because others may have alternatively been open on the evidence.
The Applicant submitted that it was irrational, illogical or unreasonable for the Tribunal not to have found that the substantial personal ties between the visa applicant and her mother were of benefit to Australia. This was contended in the sense that no other rational, logical or reasonable decision maker could have come to the same conclusion on the evidence.
I would not have been inclined to accept this argument. As the Minister submitted, the Applicant’s submissions in this regard suggested that the words “of benefit to Australia” had no further work to do once substantial ties had been found. This would not have been accepted as a matter of construction. I do not rule out the possibility that there may have been some reasoning pathway that the Tribunal may have undertaken by which a substantial tie through the mother may not have been found to have been of benefit to Australia. This is noting that the evaluative nature of this task is one that has been entrusted to the Tribunal (and not the Court). However, it is unnecessary to determine this ground, given my findings in relation to ground 4 above.
I would also not have been inclined to accept the Applicant’s contention that there was no logical basis for the finding at [59] that the close connection between the visa applicant and her mother had been achieved through regular communication remotely and through her mother’s trips to Sri Lanka. The particulars to the ground suggested that there was “no rationally probative basis for this finding”. I am unable to accept this. Both the visa applicant and her mother had given evidence that they maintained regular communication by telephone and that contact had also been maintained through the mother’s trips to Sri Lanka. It was not necessarily closed to the Tribunal to have had regard to this evidence in assessing whether the visa applicant’s ties to Australia through her mother were of benefit to Australia. However, for the reasons given above, I have accepted that the Tribunal’s reasoning in this regard was nonetheless affected by error.
Finally, I accept the Minister’s submission that it was open to the Tribunal to consider at [45] that “probative evidence” had not been provided supporting the visa applicant’s ongoing connection to, or promotion of cultural activities regarding, the broader Sinhalese community in Australia. This was notwithstanding the Tribunal’s acceptance of the visa applicant as a credible witness. The evidence that the visa applicant had given in this regard appears to have been fairly vague and general in nature. It was open to the Tribunal to consider that it had not been supported by probative evidence, in circumstances where additional evidence demonstrating to the Tribunal exactly what this had involved and its effect had not been provided. Such a finding did not require the Tribunal to reject the visa applicant’s credibility. It was therefore not inconsistent with the Tribunal’s acceptance of the visa applicant as a credible witness. The Applicant has also not demonstrated how it could be said to have been unreasonable for the Tribunal not to have put this to the visa applicant before coming to its decision, in circumstances where she was on notice from the Delegate’s decision of deficiencies in her evidence. The visa applicant could not have had any reasonable expectation that the additional evidence that she provided after this would necessarily be accepted as adequate by the Tribunal.
CONCLUSION
As jurisdictional error has been demonstrated under ground 4 of the application before this Court, the application succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 30 June 2023
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