Babar v Minister for Immigration
[2019] FCCA 2311
•27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2311 |
| Catchwords: MIGRATION – Judicial review – Temporary Partner Visa – citizen of Bangladesh – whether failure to exercise jurisdiction reasonably – whether Tribunal asked the wrong question – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Guardianship and Administration Act 1990 (WA) Migration Amendment Regulations 2002 (No.2) (Cth) |
| Cases cited: Amodi v Minister for Immigration & Citizenship [2013] FMCA 70; (2013) 274 FLR 372 |
| Applicant: | MOHAMMAD AFTABUL ALAM BABAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 577 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 23 December 2016 & 8 February 2017 |
| Date of Last Submission: | 8 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MF Rynne |
| Counsel for the First Respondent: | Ms E Tattersall (23 December 2016) Mr PR Macliver (8 February 2017) |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
That the application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 577 of 2015
| MOHAMMAD AFTABUL ALAM BABAR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mohammad Aftabul Alam Babar (“Mr Barbar”) seeks judicial review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 19 November 2015. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, now the “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”) to not grant Mr Barbar a Partner (Temporary) (Class UK) (Subclass 820) visa (“Partner Visa”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the originating application filed 16 December 2015, an amended originating application filed 24 February 2016, and the further amended originating application relied on at hearing (“Further Amended Judicial Review Application”);
b)the applicant’s affidavits filed 16 December 2015, 24 February 2016 and 6 February 2017;
c)outlines of submissions filed by the applicant on 9 November and 5 December 2016 and by the Minister on 19 December 2016 and 30 January 2017;
d)the Court Book (“CB”), in which appears the Tribunal Decision: CB 385-392;
e)the Transcript of the hearings before the Court on 23 December 2016 and 8 February 2017.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
The background to the matter is as follows:
a)Mr Barbar, a citizen of Bangladesh, arrived in Australia on a student visa in August 2006, that visa expiring in March 2008 and thereafter remained an unlawful non-citizen: CB 74;
b)in May 2012 Mr Barbar was introduced to Kristine Nicholson (“Ms Nicholson”) and upon finding out Mr Barbar was homeless Ms Nicholson invited him to stay at her house: CB 75;
c)Mr Barbar was placed in immigration detention on 10 September 2013 and released approximately 21 days later, and during that time lodged a protection visa application: CB 81;
d)on 28 May 2014 Mr Barbar lodged an application for the Partner Visa: CB 1-21, and provided correspondence and documents to the Delegate in support thereof: CB 69-82 and CB 103-106;
e)on 4 September 2014, the Delegate refused the grant of the Partner Visa on the basis that it was not satisfied that Mr Barbar met the requirements of cl.820.211(2)(a) of sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), that is Mr Barbar had failed to demonstrate he was in a genuine and continuing de-facto relationship: CB 107-133;
f)Mr Barbar lodged an application for review of the Delegate’s Decision with the Tribunal on 23 September 2014: CB 134-144;
g)on 5 March 2015 the Tribunal invited Mr Barbar to attend a hearing before the Tribunal on 27 May 2015: CB 151-152;
h)in correspondence dated 18 May 2015, the Tribunal was advised that pursuant to the Guardianship and Administration Act 1990 (WA) (“Guardianship Act”), Ms Nicholson had been found to lack capacity, and the Public Advocate had been appointed as limited guardian and the Public Trustee was subsequently appointed to administer her affairs (“Guardianship Order”): CB 154-157;
i)a representative of Mr Barbar provided written submissions to the Tribunal on 20 May 2015, and advised it sought that the Tribunal take evidence from five witnesses, including Mr Barbar and Ms Nicholson: CB 165-172;
j)on 1 June 2015 the Tribunal sent Mr Barbar a letter rescheduling the hearing to 17 June 2015: CB 181-182;
k)on 12 June 2015, the Tribunal, pursuant to s.363(3) of the Migration Act, summonsed the Public Advocate to appear at the Tribunal hearing on 17 June 2015: CB 184-185;
l)on 17 June 2015 the Tribunal hearing took place, and was adjourned on the basis that a review of Ms Nicholson’s Guardianship Order was imminent, and at the conclusion of the Tribunal hearing a further opportunity to provide any comments or information in writing was granted: CB 186-188 and 338;
m)on 15 July 2014 the Tribunal received a significant number of documents pertaining to Ms Nicholson’s Guardianship Order from the Public Advocate: CB 191-302;
n)on 28 July 2015 the Tribunal sought transcripts of further hearings before the Western Australian State Administrative Tribunal (“SAT”) concerning Ms Nicholson’s Guardianship Order, though on 11 September 2015 this request was refused, and on 5 August 2015 the Tribunal received a report from Ms Nicholson’s treating psychiatrist (“Psychiatrist’s Report”): CB 313-326 and CB 351-359;
o)on 30 September 2015 the Tribunal invited Mr Barbar to comment on information regarding Ms Nicholson’s Guardianship Order, including the Psychiatrist’s Report, as such information would be the reason, or part of the reason, for affirming the Delegate’s Decision, subject to any comments made by Mr Barbar: CB 362-364;
p)having been granted an extension to comment on the information, on 28 October 2015 Mr Barbar’s representative forwarded a response to the Tribunal: CB 370-374; and
q)on 19 November 2015 the Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Barbar a Partner Visa: CB 385-392.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)confirmed it had taken evidence from Mr Barbar, Ms Nicholson, the Public Advocate and four other individuals: CB 386 at [4];
b)identified the issue in the case, which was whether Ms Nicholson meets the sponsorship criteria: CB 386 at [7];
c)referred to the requirements of cl.820.211 of sch.2 of the Migration Regulations, and noted that reg.1.20(2)(c) of the Migration Regulations sets out the sponsorship undertakings for the Partner Visa and requires the sponsor to undertake to assist the applicant, to the extent necessary, financially and in relation to accommodation for a period of two years after the grant the Partner Visa: CB 387 at [10];
d)stated it must be satisfied that the sponsor can meet the sponsorship obligations prescribed in reg.1.20(2) of the Migration Regulations, and, with reference to the Procedures and Advice Manual 3 (“PAM3 Policy”), found that this involves assessing Mr Barbar’s likely need for assistance and Ms Nicholson’s capacity to provide assistance: CB 387 at [11];
e)considered the evidence given at hearing that Ms Nicholson was affected by mental health conditions, was in receipt of a disability support pension, and that a Guardianship Order had been made as a result of concerns she had difficulty managing her money and paying bills and did not fully comprehend the documents she had been requested to sign by Mr Barbar: CB 387-388 at [12]-[17];
f)explained the procedural history of the matter, including reference to the Guardianship Order made and the correspondence received from Mr Barbar and other persons: CB 388-390 at [19]-[37]
g)accepted that the Guardianship Order in relation to Ms Nicholson remained in place until set aside by the SAT and that while Ms Nicholson claimed to be contesting the Guardianship Order, it was still in effect: CB 390 at [38];
h)transcribed verbatim, parts of the Psychiatrist’s Report which it had put to Mr Barbar for comment, and noted that in his response he asserted the Tribunal should not rely on the Psychiatrist’s Report without providing Mr Barbar an opportunity to examine it, and further sought to impugn the Psychiatrist’s Report: CB 391 at [42]-[43];
i)noted that while the Psychiatrist’s Report contained more information than that put to the Mr Barbar, the Tribunal considered that the additional information was “not relevant, not adverse or was too speculative” to form part of its consideration, but did not accept that the Psychiatrist’s Report was prepared by a practitioner who was not in a position, or was insufficiently aware of Ms Nicholson’s case, to make the report and findings that were made: CB 391 at [42]-[43];
j)discussed Mr Barbar’s evidence that he and Ms Nicholson had been living together in Ms Nicholson's supported accommodation, had relied on her pension as their principal source of income, and had managed with support of social and community services, but found this sort of support is generally provided out of the benevolence of the gifting organisation and cannot be relied upon to evidence that Mr Barbar and Ms Nicholson are managing financially or that Ms Nicholson is able to meet her sponsorship obligations, and further the assertion that they have managed is contradicted by the fact of the Guardianship Order over Ms Nicholson’s finances, as well as the evidence of her financial difficulty leading up to the making of the Guardianship Order: CB 391-392 at [44];
k)mentioned the assertion that Mr Barbar had worked for about half the time he has lived with Ms Nicholson, noting the work appears to have occurred whilst he was unlawful or subject to a “no work” condition, and that there is no other evidence to support that he worked in any event, therefore did not give that assertion much weight, and the same was said as to whether Ms Nicholson had any liability in respect of child support payments, that is there is no evidence before the Tribunal, and accordingly little weight was given to that assertion: CB 392 at [45]-[46];
l)referring to the assertions that Ms Nicholson continues to contest the Guardianship Order and that it would be wrong for the Tribunal to act on the Psychiatrist’s Report without considering other opinions on the same subject or awaiting the SAT outcome, concluded that the Tribunal had delayed the matter since June 2015 in response to the pending review of the Guardianship Orders that might lead to their revocation and in light of the proceedings to that time, concluded that the possibility of revocation of the Guardianship Orders was becoming more remote, both in time and in likelihood: CB 392 at [47]-[48];
m)found, based on the evidence of the Psychiatrist’s Report, the Guardianship Orders in relation to Ms Nicholson's finances, and given Mr Barbar’s clear reliance to date on Ms Nicholson, that it was not satisfied that Ms Nicholson had the capacity to meet the financial sponsorship obligations at the time of decision: CB 392 at [50];
n)concluded that Mr Barbar was not sponsored, and there was no evidence before the Tribunal that one of the alternative “time of decision” criteria were met: CB 392 at [50];
o)on the evidence before the Tribunal found the requirements of cl.820.221 of the Migration Regulations were not met: CB 392 at [51]; and
p)affirmed the Delegate’s Decision not to grant the Partner Visa: CB 392 at [53].
Grounds of the Further Amended Judicial Review Application
Mr Barbar filed his application for judicial review on 16 December 2012. An order of a Registrar of this Court on 20 January 2016 allowed Mr Barbar to file an amended judicial review application by 23 February 2016, and on 24 February 2016 Mr Barbar filed an amended judicial review application which contained three grounds and particulars. The Court notes that Mr Barbar subsequently obtained the assistance of pro-bono Counsel, and when Mr Barbar filed further written submissions on 5 December 2016, the grounds of review were further amended. On the first day of hearing counsel for Mr Barbar sought leave to further amend the grounds of review, and without objection from the Minister the Court granted leave to the applicant to rely upon the Further Amended Judicial Review Application. The grounds of the Further Amended Judicial Review Application were as follows:
i)asked the wrong question;
ii)in so doing denied procedural fairness; and
iii)failed to exercise jurisdiction reasonably.
The Court adjourned the hearing on 23 December 2016, and allowed the Minister, and Mr Barbar in reply, an opportunity to file and serve any further supporting affidavits and an outline of submissions in relation to an issue arising at hearing concerning the jurisdiction and process by which one becomes an “approved sponsor” under cll.820.211 and 820.221 of sch.2 of the Migration Regulations. The further hearing of the matter took place on 8 February 2017.
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”) at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may establish jurisdictional error if the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a Tribunal decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In particular circumstances a denial of procedural fairness may also establish jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
There is no exhaustive list of the kinds of jurisdictional error, and the development of the concept has come to include circumstances where a finding or decision “lacks evident and intelligible justification” sufficient for it to be considered as “unreasonable”: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ. Before the Court can find that jurisdictional error has been established on the ground of procedural unfairness it must be satisfied the error was material to the outcome, and that an applicant has suffered some practical unfairness: SZOOR v Minister for Immigration & Citizenship & Anor [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 FCR (“SZOOR”) at [2] per Rares J and [85] per McKerracher J.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Issue raised at first Tribunal hearing
Did the Tribunal have the power to approve the sponsor?
The Court raised an issue at the first hearing in relation to the power of the Tribunal to consider and make a decision as to the approval of a sponsorship, when the Tribunal’s task was to review the Delegate’s Decision to decide if the applicant met the criteria to be granted the Partner Visa. The Court adjourned the first hearing and made orders on 23 January 2017 that the Minister file and serve any affidavit and submissions in relation to the issue of the Minister’s approval of Mr Barbar’s sponsor for the purposes of sch.2, cll.820.211 and 820.221 of the Migration Regulations and Mr Barbar file and serve any affidavit and submissions in reply.
The Minister filed written submissions and made oral submissions at the further hearing, and Mr Barbar filed an affidavit sworn 6 February 2017 and also made oral submissions at the further hearing.
Mr Barbar’s submissions
Mr Barbar made the following submissions:
a)if there was no approval by the Minister of Ms Nicholson as sponsor, the Delegate was acting functus officio as there was no approved sponsor to even consider as part of the decision-making process;
b)there is no process for approval of a sponsor provided in the Migration Act or the Migration Regulations;
c)there is no evidence that anyone other than the Minister has been delegated with the authority to make a sponsorship decision on the Minister’s behalf;
d)the decision being made regarding sponsorship is a decision in relation to an individual who is not the Partner Visa applicant applying for review;
e)the relevant provisions apprehend that a decision has been made to approve or not approve the sponsorship prior to the time of decision, not that the Tribunal has to make a decision on the sponsorship at the time of decision, so to proceed in the absence of the sponsorship approval decision and to imply there is a power to make that sponsorship approval decision at the time of decision is simply not supported by the legislation;
f)the requirement in cl.820.211(c)(i) of sch.2 of the Migration Regulations was that Ms Nicholson was the spouse or de facto partner of Mr Barbar who had turned 18 and was an Australian citizen, that criteria does not do anything in the way of compelling satisfaction under s.65 of the Migration Act that the applicant meets the criteria for a Partner Visa, and essentially the decision-maker is making a decision on a matter that is “ante-consideration” of s.65 of the Migration Act, it apprehends that a decision has been made, not that the decision-maker has to make a decision;
g)the Minister has taken no step to approve Ms Nicholson as a sponsor, and therefore approve the sponsorship, and in doing so abdicated responsibility; and
h)there was no power of a decision-maker at that time to undertake a review of the sponsorship application.
Minister’s submissions
The Minister submitted:
a)the better view is that where a Partner Visa application has been refused by a Delegate of the Minister under s.65 of the Migration Act because the Delegate has not approved the sponsor’s sponsorship, or where, as in this case, the Delegate has refused the Partner Visa application on other grounds, and the visa applicant seeks review of that refusal decision by the Tribunal, the Tribunal has the power to approve that sponsorship for the purposes of cl.820.221(4) of the Migration Regulations;
b)there is no specific or express power conferred on the Minster under the Migration Act or Migration Regulations to “approve” a sponsorship, however, an implied power is conferred on the Minister to approve a sponsorship in circumstances where:
i)the Migration Act clearly contemplates the need for such approvals (and the Minister making such approvals); and
ii)such a power is necessary to the operation of the Migration Act: Tickner v Bropho (1993) 40 FCR 183; (1993) 114 ALR 409 (“Tickner”), FCR at 228 per French J;
c)it is not in issue that all Delegates determining whether or not to grant a Partner Visa under s.65 of the Migration Act are also delegated with the power to approve a sponsorship for the purposes of such an application, as clearly such a delegation is necessary to enable the visa criteria in cll.820.221(4) and 820.221A of sch.2 of the Migration Regulations to be met, or to be capable of being met;
d)when a Delegate makes a decision to grant a Partner Visa, that decision will usually involve the Delegate making two decisions: the sponsorship approval decision and the decision to grant the Partner visa under s.65 of the Migration Act;
e)on review, the Tribunal stands in the shoes of the Minister or his or her Delegate and makes the correct or preferable decision according to law: Kaur v Minister for Immigration & Border Protection [2016] FCA 937 at [5] per Perry J. The Tribunal may exercise all the powers conferred on the Minister or his or her Delegate under the Migration Act, which of necessity include any implied power or discretion necessarily related to the visa refusal decision, including the sponsorship approval power;
f)section 349(1) of the Migration Act does not limit the Tribunal’s exercisable powers or discretions, rather it is worded broadly enough to encompass a situation like here where the Delegate had the power (and, in this case, was necessarily required to have the power) to approve the sponsorship;
g)there is no right to seek separate merits review of a sponsorship refusal decision under reg.1.20 of the Migration Regulations, unlike sponsorship refusal decisions under s.140E in Div.3A of the Migration Act, and there is no obvious justification for such a legislative distinction unless one accepts that the legislative intention is that the Tribunal, on review of a visa refusal decision, is conferred with the same power that the Minister and the Delegate was conferred with to make a sponsorship approval decision;
h)in cases of this kind, the relevant visa criterion in cl.820.221(4) of sch.2 of the Migration Act cannot be met unless, and until the Minister or a delegate also make the decision to approve the sponsorship, this close nexus between the sponsorship approval power and decision under s.65 of the Migration Act suggests that such a power is one that needs to be conferred on the Tribunal to properly give effect to the legislative intention that the Tribunal be permitted to stand in the shoes of the decision maker and make the correct or preferable decision;
i)the Migration Act and Migration Regulations do not require the sponsorship approval decision to be made separately, rather the power to approve a sponsorship is a critical part of s.65 of the Migration Act, as a criterion for the granting of a Partner Visa is the approval of the sponsorship by the visa applicant’s spouse or de facto partner: cl.820.221(4) of sch.2 of the Migration Regulations;
j)if this construction is not accepted by the Court and the Tribunal is not empowered to approve an applicant’s sponsorship then anomalous results could arise, which are inconsistent with what might reasonably be perceived as the intended legislative outcome or operation;
k)the Tribunal has no power to remit the matter for reconsideration on the basis that all the relevant criteria was satisfied, subject to the approval of the sponsorship: Minister for Immigration & Citizenship v Dhanoa& Anor [2009] FCAFC 153; (2009) 180 FCR 510; (2009) 112 ALD 36 at [53]-[71] per Jagot and Foster JJ (Moore J dissenting);
l)the concluding words “and remains in force” in cl.820.221(4) of sch.2 of the Migration Regulations do not require any different outcome. They do not preclude the Tribunal having the power to make a sponsorship approval decision upon review of a visa refusal decision pursuant to s.65 of the Migration Act.
Consideration
The Delegate’s Decision was to not grant the Partner Visa pursuant to s.65 of the Migration Act as Mr Barbar did not satisfy cl.820.211(2)(a) of sch.2 of the Migration Regulations. Specifically, Mr Barbar and Ms Nicholson had not supplied sufficient evidence they were in a genuine and continuing de facto relationship, therefore Mr Barbar was not the de facto partner of Ms Nicholson under s.5CB of the Migration Act. Having determined Mr Barbar was not the de facto partner of the “purported sponsor”, the Delegate did not have to consider if Ms Nicholson was an Australia citizen or any other factors relevant to the purported “sponsorship”.
Mr Barbar failed to affirmatively satisfy the first criteria, and he was required to satisfy the Minister he met each criterion of cl.820.211(2) of sch.2 of the Migration Regulations in order to be granted a Partner Visa under s.65 of the Migration Act: SJSB vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 (“SJSB”) at [15] per Ryan, Jacobson and Lander JJ. In Jayasinghe v Minister for Immigration & Multicultural Affairs [2006] FCA 1700 at [21] and [29] per Middleton J explained the interaction of ss.65 and 349 of the Migration Act with the Partner Visa:
21. Pursuant to s 65 and s 349 of the Act, the Tribunal was required to grant the appellant a temporary spouse visa if it was satisfied that, among other things, the criteria prescribed by the Regulations were satisfied. If the Tribunal was not satisfied that those criteria were met, it was obliged to refuse to grant the visa.
...
29. Even if the Tribunal was satisfied that the appellant met the “time of application criteria” (which it was not), it would remain necessary for the Tribunal to consider whether or not the appellant could meet the criteria to be satisfied at the time of its decision. Those criteria are set out in subdiv 820.22 of Pt 820.
In the context of Partner Visa applications, there is no express power or administrative process to approve a person as an applicant’s sponsor, in contrast to the process for employment sponsor visas. The Minister referred to Tickner, FCR at 228 per French J:
…Where implication is open the court may have regard to the reasons underlying the enactment of the legislation: D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed, 1988), par 2.21. Implication of powers or duties in a statute is to be approached cautiously as are all implications. It may be justified if necessary to the operation of the legislation. Thus ancillary powers are implied in aid of express statutory power: Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473. On a like basis, duties necessary to the discharge of a statutory function by a public official may also be implied. It has been said necessity is too narrow a base for statutory implication.
The Court must consider if it ought be implied into the Migration Regulations that when considering the criterion of a Partner Visa the Tribunal, or the Delegate, must make a finding to “approve” the sponsorship, or to find the sponsorship approval is still effective. Mr Barbar referred to the principles in Li concerning the reasonableness of such an implication. The expressions of the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490; CLR at [69] per McHugh, Gummow, Kirby and Hayne JJ concerning the “purposive approach” in interpreting legislation, or in this matter legislative instruments being the Migration Regulations, are also appropriate:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined ''by reference to the language of the instrument viewed as a whole" (46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).
It is clear in the terms of cl.820.221(4) of the sch.2 of the Migration Regulations that the Minister was required to approve the sponsorship:
820.22 – Criteria to be satisfied at time of decision
820.221
…
(4) The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.
Clause 820.221(4) was inserted into the Migration Regulations by the Migration Amendment Regulations 2002 (No.2) (Cth). The Explanatory Memorandum explains the rationale behind the introduction of cl.820.221(4) of sch.2 of the Migration Regulations in Item 2365:
This item inserts new subclause 820.221(4) into clause 820.221.
New subclause 820.221(4) establishes that one of the primary criteria to be satisfied for a Subclass 820 (Spouse) visa is that the sponsorship mentioned in paragraphs 820.211(2)(c), 820.211(3)(f), 820.211(4)(f), 820.211(5)(f) or 820.211(6)(c) has been approved by the Minister and is still in force
As the provisions for a Subclass 820 (Spouse) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.
Having different requirements for onshore visa applications (requiring 'nomination' of the visa applicant) and offshore visa applications (requiring 'sponsorship' of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore.”
Section 496(1) of the Migration Act allows the Minister, by writing, to delegate to a person any of the Minister’s powers exercised under the Migration Act, and similarly reg.1.16 of the Migration Regulations dictates the same. There is a presumption that all administrative acts are presumed to be valid: VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 188 at [30] per Heerey J. It is well accepted that the Tribunal is empowered to “stand in the shoes” of the Minister, that being it can exercise any of the powers which the Delegate was permitted to exercise under the Migration Act: Migration Act, s.349(1); Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 40; (1980) 31 ALR 666; (1980) 4 ALD 139; (1980) 1A IPR 708, FLR at 46 per Smithers J.
It was within the power and jurisdiction of the Tribunal to determine the approval of the sponsorship of Mr Barbar by Ms Nicholson. On the proper construction of cll.820.211 and 820.221 of sch.2 to the Migration Regulations, the approval of the sponsorship is a decision for the purposes of sch.2 of the Migration Regulations. As a decision made in respect of sch.2 to the Migration Regulations, the Tribunal was necessarily empowered to determine all matters as to findings of fact when considering if Mr Barbar should be granted a Partner Visa. It was a necessary consequence of s.65 of the Migration Act that the Tribunal make a finding that Mr Barbar was “sponsored” and therefore in conducting its review the Tribunal could assess if Mr Barbar met this criterion on the material before it.
The Tribunal, standing in the shoes of the Minister, via the Delegate, could make all necessary findings to determine if Mr Barbar was sponsored pursuant to cl.820.211(2)(c) of sch.2 of the Migration Regulations.
The Court is therefore of the view that the Tribunal did not exceed its jurisdiction in undertaking to determine if Ms Nicholson was an “approved sponsor” or that the Minister’s approval was “still in effect”.
Asks the wrong question - the criterion and the PAM3 Policy
Mr Barbar’s contention is that the Tribunal asked the wrong question as to “whether the purported sponsor can meet the sponsorship criteria” by relying on the PAM3 Policy without regard to either the Migration Act or Migration Regulations.
Mr Barbar’s submissions
Mr Barbar made the following submissions in respect of the criterion and the interpretation of “sponsor” in cll.820.211 and 820.221 of sch.2 to the Migration Regulations:
a)in relation to sponsors, the term “sponsor” is not defined in the Migration Act, and a person becomes a sponsor by compliance with Div.3A of the Migration Act, yet Div.3A is directed to work related matters;
b)one criterion is the applicant must be sponsored by a spouse or de facto who has turned 18 and the spouse or the de facto did not have any limitations applying to them, and pursuant to reg.1.20(1) of the Migration Regulations, the sponsor must be a person who undertakes the obligations in reg.1.20(2) of the Migration Regulations, the obligations for which are relevantly the sponsor undertakes to assist the applicant to the extent necessary, financially and in relation to accommodation; and
c)the undertaking follows the person being a sponsor, hence a legitimate sponsor undertakes to comply with the obligations, that is unless a person complies with the criteria in cl.820.211 of sch.2 of the Migration Regulations they cannot be a sponsor pursuant to reg.1.20 of the Migration Regulations as the obligation to support is a prospective undertaking, in that if a visa is granted, the necessary support is then triggered to be provided.
In respect of the issue raised regarding the elevation of the PAM3 Policy to a presumptive rule in disregard of the Migration Act or the Migration Regulations Mr Barbar made submissions that:
a)the PAM3 Policy directs Delegates on procedural issues, and while a legitimate procedural document its content cannot be utilised to elevate a procedure to a demand of law and accordingly cannot establish a legal imperative in decision making;
b)in asking “whether the purported sponsor can meet the sponsorship criteria” the Tribunal elevated the PAM3 Policy to a presumptive rule of law without regard to either the Migration Act or Migration Regulations;
c)the necessity to consider the capacity to comply with a sponsor’s undertaking does not arise in either the Migration Act or Migration Regulations, however, it does arise in the PAM3 Policy which relevantly requires sponsors to submit to an assessment process when none is required in either the Migration Act or Migration Regulations;
d)it is the process dictated by the PAM3 Policy that conflates a procedure not mandated by law with the relevant sections of the Migration Act for the purposes of elevating the assessment process to something mandated by law and this is not a legitimate process, it is a process that charts the bounds of the evidence in respect of an individual other than Mr Barbar by reference to Mr Barbar's needs; and
e)in any event, pursuant to the PAM3 Policy the ability to comply with an undertaking is not fatal to a person’s ability to be a sponsor.
Minister’s submissions
The Minister made submissions regarding the question of whether Ms Nicholson met the sponsorship criteria:
a)the issue before the Tribunal was Mr Barbar's satisfaction of c1.820.221 of sch.2 of the Migration Regulations, and cl.820.211 of the Migration Regulations required Mr Barbar to be "sponsored”, however, such a term is not defined in the Migration Act or Migration Regulations;
b)clause 820.221 of the Migration Regulations is a time of decision criteria, however, reg.1.20 of the Migration Regulations, relevantly states, at time of the application, the obligations of a sponsor;
c)whilst reg.1.20 of the Migration Regulations has the effect that a “sponsor” of an applicant is defined as a person who provides the relevant undertaking, the mere provision of an undertaking does not have the effect that the sponsorship is automatically approved, rather reg.1.20(3) of the Migration Regulations provides that a person who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor;
d)in considering whether to approve the sponsorship, it is entirely consistent with the legislation to consider a purported sponsor's ability to comply with the undertaking required to be made in order to be eligible to be a sponsor;
e)while (in practice) the Minister has chosen to administer Partner Visa applications by leaving the sponsorship approval determination to be one made by the Delegate contemporaneously with the visa decision, there is no reason why the Minister could not (separately) determine the sponsorship issue at an earlier time, in those cases, there would be scope for such approvals to be revoked or withdrawn prior to the time of the decision – hence giving potential operation to the phrase “and remains in force” in cl.820.221(4) of sch.2 of the Migration Regulations;
f)further, even where sponsorship approval decisions are made by the same Delegates who make the visa decision, those decisions do not necessarily have to be made at the same time, as the visa decision-making process may take many months, and a Delegate may make a decision to approve sponsorship some considerable period prior to that decision, however, new information might come to the attention of the Delegate such as to warrant the revocation of the earlier sponsorship approval and in that event the approval would not “still be in force” when the Delegate subsequently made the visa decision;
g)the Migration Act and Migration Regulations do not require the sponsorship approval decision to be made separately in cases of this kind (unlike Migration Act Div.3A sponsorships) rather, the power to approve a sponsorship is a critical part of the visa decision-making process as a criterion for the granting of a Partner Visa is the approval of the sponsorship by the visa applicant’s spouse or de facto partner; and
h)anomalous results could arise if this construction was not accepted by the Court and the Tribunal is not empowered to approve an applicant’s sponsorship: for example, if a sponsorship refusal decision had been made, the Tribunal would not be able to grant a Partner Visa unless and until that result was overturned following either a Court decision as a result of a judicial review application (assuming that to be possible) and/or the Minister making a fresh decision approving the sponsorship. Such a construction does not sit well with what might be reasonably perceived to be the intended legislative outcome or operation.
The Minister made submissions in respect of the Tribunal’s consideration of the PAM3 Policy:
a)it is apparent that, in considering the exercise of the power to approve Ms Nicholson, the Tribunal had regard to the provisions of PAM3 Policy and the PAM3 Policy is not inconsistent with the applicable legislation, nor does it impose additional requirements;
b)the Tribunal essentially had a power to either approve or not approve the sponsorship in circumstances where it was not prevented from, or obligated to, approve the sponsorship and given the discretionary nature of the issue it was open to the Tribunal to consider the provisions of PAM3 Policy; and
c)in any event, if the Tribunal failed to comply with PAM3 Policy, such a failure could not infect the decision with jurisdictional error as it was within the Tribunal's power to treat PAM3 Policy as a relevant consideration and it was not binding on the Tribunal.
Consideration - the criterion
The Tribunal ultimately found that the requirement in cl.820.221(4) of sch.2 of the Migration Regulations, a time of decision criterion, was not met. As a time of decision criterion this required Mr Barbar to continue to meet cl.820.211(2)(c) of sch.2 of the Migration Regulations.
The Court notes that while a definition of “approved sponsor” is found in s.5(1) of the Migration Act, it is clear that the definition refers and applies to sponsorship for employment based visas, not Partner Visas.
The definition of “sponsor” is found in reg.1.20(1) of the Migration Regulations, and “sponsorship” means an undertaking of the kind referred to in reg.1.20 of the Migration Regulations to sponsor an applicant: Migration Regulations, reg.1.03. There is no definition of “sponsored” in the Migration Regulations, where the suffix “-ed” is added to a verb, such as “sponsor”, it is generally to indicate the past tense of the verb, the suffix is employed in some respects to create an adjective that describes the object. Employing these language techniques, one can interpret the use of the word “sponsored” to denote that the applicant must at the time of the application be supported by a “sponsor”, the definition of which is found in reg.1.20 of the Migration Regulations as follows:
1.20 Sponsorship undertakings
(1) The sponsor of an applicant for a visa is a person … who undertakes the obligations stated in subregulation (2) in relation to the applicant.
(2) Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:
(c) if the application is a concurrent application for a Partner (Provisional) (Class UF) and a Partner (Migrant) (Class BC) visa or a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BS) visa, the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:
(i) if the applicant is in Australia—during the period of 2 years immediately following the grant of the provisional or temporary visa; or
(ii) if the applicant is outside Australia—during the period of 2 years immediately following the applicant’s first entry into Australia after the grant of the provisional or temporary visa;
In Fernandez v Minister for Immigration & Border Protection & Anor [2016] HCATrans 113 the High Court refused an application for special leave to appeal from a decision of the Federal Court where a question arose as to the interaction between reciprocal provisions of cll.820.211 and 820.221(4) of sch.2 to the Migration Regulations. In Fernandez v Minister for Immigration & Border Protection & Anor [2015] FCA 1265; (2015) 238 FCR 251 (“Fernandez”) the Federal Court had held that it is not a jurisdictional fact as to whether or not a person is a sponsor.
The Court observes that the Migration Regulations and the Migration Act are silent on the administrative processes and procedures by which a person becomes approved by the Minister, however there are a number of provisions restricting the circumstances in which the required approval could be given: Migration Regulations, regs.1.20J, 1.20KA, 1.20KB; Korovata v Minister for Immigration & Multicultural Affairs [2001] FCA 1446 at [41] per Emmett J. Ms Nicholson did not fall under any of the regulations whereby the Minister “must not grant a visa”, rather she was found to be unable to satisfy the “undertakings” to enable her to provide “sponsorship” to Mr Barbar.
The sponsorship of an applicant is a matter between the sponsor and the Minister. The undertakings are plainly given to the Minister and not the visa applicant. Equally so, the sponsorship has no effect unless and until the Minister approves it: Amodi v Minister for Immigration & Citizenship [2013] FMCA 70; (2013) 274 FLR 372 at [24] per Cameron FM.
Ms Nicholson effectively agreed to enter into the sponsorship when submitting her sponsorship application, and she expressly signed the agreement to provide the “undertakings”: CB 30, however, Ms Nicholson had not yet been approved by the Minister, who was required by virtue of cl.820.221(4) of sch.2 of the Migration Regulations to have approved the sponsorship. That necessarily required the Minister to have some consideration of what was required of Ms Nicholson to be a sponsor.
Accordingly, no jurisdictional error arises, and the Tribunal was correct to ask whether Ms Nicholson met the sponsorship criteria.
Consideration - PAM3 Policy
The Tribunal was required to determine if Mr Barbar satisfied the criteria to be granted a Partner Visa and referred to the PAM3 Policy when seeking to determine if Ms Nicholson’s “sponsorship” was approved by the Minister and that that sponsorship was still in effect: CB 387 at [11]. For the Minister to approve the “sponsorship” he was required to be satisfied that the sponsor had the capacity to fulfil the undertaking.
While the Migration Act and Migration Regulations are silent on the process of the Minister approving a sponsor, the PAM3 Policy provided as follows:
[P D1.4-Form 40-3] The sponsorship process
The sponsorship relationship assessment is a two-stage interrelated process:
the undertaking given by the sponsor is assessed under regulation 1.20;and
the relationship of the sponsor to the applicant, and the sponsorship, are assessed as Schedule 2 visa criteria.
These two separate but interrelated processes "merge" when assessing Schedule 2 time of decision criteria for the visa applicant.
Officers cannot decide whether regulation 1.20 sponsor requirements are met unless a valid visa application has been made. This is because:
the power to approve or not approve a sponsorship lies within the relevant Schedule 2 sponsorship criterion; and
s 47(3) of the Act precludes officers from considering visa applications (and it follows, associated requirement) unless the application is valid.
… Regulation 1.20 requires officers to be satisfied that the sponsor can meet the financial needs of the applicant, to the extent necessary, for the 2 year period specified in the applicable regulation 1.20(2) provision. In general terms, officers are to assess the risk of whether or not a sponsor can provide sufficient support for the applicant so as to prevent the applicant from becoming a cost to the Australia taxpayer within the first two years of their settlement in Australia…
However even if primafacie a sponsor does not comply with that is not the end of the matter as there is a discretion.
There is no error in the Tribunal placing weight, even significant weight, on government policy like the PAM3 Policy: Nevistic v Minister for Immigration & Ethnic Affairs (1981) 51 FLR 325; 34 ALR 639 at 644 per Franki J. The PAM3 Policy is not a “relevant consideration” in the sense that a failure to consider it amounts to jurisdictional error, or a failure to apply or to apply it incorrectly in itself alone amounts to jurisdictional error: El Ess & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J. In Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 19 AAR; (1994) 33 ALD 13, FCR at 208 per French and Drummond JJ the majority of a Full Court of the Federal Court referred to the Tribunal erring where it seeks to:
…apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose.
The Tribunal undoubtedly focussed upon Ms Nicholson during the review, and her ability to meet the undertakings in reg.1.20 of the Migration Regulations. With respect to the PAM3 Policy the Tribunal at CB 387 at [11] said as follows:
11. The decision-maker must be satisfied that the sponsor can meet the sponsorship obligations prescribed in regulation 1.20(2): PAM3: Div1 .4 - Form 40 sponsors and sponsorship para 7. This determination involves assessing the applicant's likely need for assistance and the sponsor's capacity to provide assistance. PAM3: Div1 .4, para 23.3.
There is no express provision in the Migration Act or the Migration Regulations that the Tribunal, or the Delegate, must be satisfied the purported sponsor can meet the sponsorship obligations, that is, reg.1.20 of the Migration Regulations does not require the undertaking to be assessed, simply agreed to. Mr Barbar suggested that this implied that the sponsorship was a consideration antecedent to the determination of the Mr Barbar’s Partner Visa. It was essentially put that the sponsorship was “prospective” and if the sponsor does not fulfil the undertakings the sponsorship can therefore be cancelled.
It is relevant to note that reg.1.20(3) of the Migration Regulations reads:
(3) A person… who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor.
As a matter of policy the Minister seeks the sponsor to file a sponsorship form (Form 40SP) at the time the applicant files the Partner Visa application, considering that in order to make a valid application there must be a “sponsor”. The Partner Visa application form likewise refers to the completed Form 40SP as a document that “must” be provided, though this does not appear to be mandatory as it is qualified because a failure to do so may “delay” the processing of the application or cause a decision to be made to refuse the Partner visa: CB 14. A Partner Visa application will not be invalidated for failure to lodge the approved sponsorship form at the time of the application: Hooda v Minister for Immigration & Citizenship [2012] FMCA 1018; (2012) 271 FLR 337.
As referred to above, sponsorship is defined as the “undertakings” of a sponsor: Migration Regulations, regs.1.03 and 1.20(2)(c). Ms Nicholson provided her “Form 40SP” whereby she agreed to provide the undertaking on 27 May 2014: CB 30. Ms Nicholson was therefore a “sponsor” as she had agreed to undertake the obligations described in reg.1.20(2)(c) of the Migration Regulations, but the assessment of her capacity to meet those undertakings was yet to be assessed.
The underlying purpose of the sponsorship undertakings is to ensure that those who enter into Australia on a sponsored visa do not become a burden on the Australian community. In taking a purposive approach to the construction of the relevant regulations and clauses of the Migration Regulations, and considering the fact the sponsorship undertakings are in essence a preventative measure, the Court does not accept the construction proposed by Mr Barbar that the undertaking is prospective, and the assessment ought to arise only upon the Partner Visa application being successful. Furthermore, to the extent Mr Barbar contends the Tribunal improperly applied the PAM3 Policy as a sponsor being unable to meet the undertakings was expressly “not the end of the matter as there is a discretion”, the Tribunal exercised the discretion reasonably when taking into account the purpose of the provisions and the evidence before it.
In the Court’s view, it was a criterion for the grant of the Partner Visa that the Tribunal be satisfied that Ms Nicholson’s sponsorship had been approved, and it was relevant for the Tribunal to consider and be affirmatively satisfied if it was met, otherwise it must refuse to grant the Partner Visa: SJSB at [15] per Ryan, Jacobson and Lander JJ.
Accordingly, no jurisdictional error arises and it was permissible for the Tribunal to refer to the PAM3 Policy to ask the question whether Ms Nicholson met the sponsorship criteria.
Denial of procedural fairness and unreasonableness
Mr Barbar’s contention is that the Tribunal did not notify him of the case against him, that the Tribunal Decision was not based upon logically probative evidence, and did not take into account relevant matters, namely the needs of Mr Barbar, and therefore it was procedurally unfair and unreasonable for the Tribunal to make the decision it did.
Mr Barbar’s submissions
Mr Barbar submitted that the content of procedural fairness is encapsulated in distinguishable components being that:
a)a person should know the case against them and have a chance to respond;
b)any decision has to be based upon logically probative evidence and
c)the decision maker has a duty to inquire into matters that are centrally relevant.
The “case against him” as apprehended by Mr Barbar was the decision of the Delegate that he was not in a genuine and continuing relationship: CB 386 at [3], and it was that decision for an identified reason that was submitted for review as the Delegate’s Decision does not advance any other case put against Mr Barbar.
Mr Barbar also submitted that:
a)there is no requirement to assess a sponsor’s capacity to comply with a prospective undertaking in either the Migration Act or the Migration Regulations, and that PAM3 Policy injects into cl.820.211 an additional clause not found in the Migration Regulations being the “duty to assess”; and
b)if in fact a “duty to assess” exists it is tied to a person other than Mr Barbar as it is not a decision with respect to an application for a Partner Visa made in accordance with cl.820.211 of sch.2 to the Migration Regulations to be made pursuant to s.65 of the Migration Act, rather the PAM3 Policy poses a question without statutory support in respect of a person other than Mr Barbar.
Mr Barbar further submitted that:
a)not only was the wrong question asked and elevated to being of central importance, but the provisions as to how the assessment was to be carried out failed at the first level to address the needs of Mr Barbar albeit correctly identifying that that was to be done; and the Tribunal made errors of fact upon which the Tribunal Decision was based as well as not answering the question posed by reference to logically probative evidence;
b)in the absence of identifying the actual needs of Mr Barbar, the financial circumstances or mental capacity of Ms Nicholson is only logically probative of those facts if one assumes the effect of the Guardianship Order is that Ms Nicholson would have neither any money nor accommodation, yet the evidence was that both Mr Barbar and Ms Nicholson were functional people living in accommodation, albeit at a subsistence level, but there was no evidence that Ms Nicholson has no access to funds or accommodation to provide for her subsistence;
c)the matter that was centrally relevant to the Guardianship Order was not the necessity for one, but the extent to which a Guardianship Order was required to act in Ms Nicholson's best interests by facilitating her de facto relationship, and if any such enquiry should have been made is was not as the Tribunal took into account hearsay evidence of what had been evidence during the SAT hearing, which evidence was otherwise refuted or explained by the direct oral testimony of Ms Nicholson during the Tribunal hearing;
d)the Tribunal made its own enquiries of Ms Nicholson’s treating psychiatrist, and outside of the professional opinions of the treating psychiatrist, the Psychiatrist’s Report answers the questions posed based upon speculation without having outlined any factual basis upon which the speculation was based such that most, if not all, of comments relied upon were not logically probative of a fact within the professional expertise of the treating psychiatrist;
e)to the extent the Tribunal relied upon the Psychiatrist’s Report, it relied on evidence that was not logically probative of a fact in issue as between Mr Barbar and the Minister, but more so a fact in issue between Ms Nicholson and the SAT;
f)the Tribunal gave little weight to Mr Barbar’s assertion that he and Ms Nicholson had lived in Ms Nicholson's supported accommodation and have managed and that they have received support from social and community services in addition to her pension support, rather it was said by the Tribunal that such support was provided out of the benevolence of the gifting organisation and cannot be relied upon, yet there was no logically probative evidence to make such an assertion nor so as a matter of law, and if the Tribunal had such a finding in mind due notice should have been given to Mr Barbar in order that he had an opportunity to respond;
g)benevolence or altruism or philanthropy is a feature of Australian society, it operates to fill the gap, and the finding was not supported by any logically probative evidence, but made because of an unexplained value assessment by the Tribunal to which Mr Barbar could not reply; and
h)the Tribunal rejected an assertion that Mr Barbar and Ms Nicholson “had managed” as contradicted by the fact of administration, but in the absence of relevant findings as to what was meant by the word “managed”, to assume the fact of administration means someone cannot manage to survive at a subsistence level is not open to be found when there was no evidence that that was historically the case nor indeed had the fact of administration manifested itself in any presentation by the either Mr Barbar or Ms Nicholson before the Tribunal.
Further, by way of oral submissions, Mr Barbar submitted:
a)the Tribunal changed the focus of the decision making from Mr Barbar to Ms Nicholson;
b)the Tribunal should not have elevated an assessment process as part of a prescription attached to the mandatory direction to approve the sponsor, and if wrong in that contention, the Tribunal should have first assessed subjectively and quantitatively the needs of Mr Barbar;
c)the Tribunal asserts that Mr Barbar and Ms Nicholson have been living together in Ms Nicholson’s supported accommodation and have been reliant on Ms Nicholson’s pension as the principal source of income however does not indicate what the needs of Mr Barbar are: CB 391-392 at [44]; and
d)Mr Barbar is disenfranchised from knowing the case against him because he was never asked how much money he needed to survive on a weekly basis, the Tribunal simply failed to take into account the financial needs of Mr Barbar.
Minister’s submissions
The Minister submitted:
a)the Tribunal complied with statutory requirements of the natural justice hearing rule: Div.5, Pt.5 and s.357A of the Migration Act;
b)section 360 of the Migration Act required the Tribunal to invite Mr Barbar to appear before it to give evidence and present arguments relating to the review, and in that regard:
i)Mr Barbar was invited to appear before the Tribunal to give evidence and provide arguments: CB 179-182;
ii)Mr Barbar attended the Tribunal hearing: CB 186;
iii)Mr Barbar was given an opportunity to provide further evidence: CB 188; and
iv)the Tribunal discussed the relevant issue arising for consideration with Mr Barbar: CB 362; and
c)the Tribunal's obligations pursuant to s.359A of the Migration Act required that it to put to Mr Barbar information that it considered to be the reason, or part of the reason for affirming the decision under review. The Tribunal Decision demonstrates that it considered whether to put that information to Mr Barbar, however, considered that the information was not relevant, not adverse or was too speculative to form part of the Tribunal’s consideration: CB 391 at [42].
In relation to the Tribunal’s factual findings, the Minister submitted:
a)first, the Tribunal was not concerned with whether Ms Nicholson had access to funds or accommodation to provide for her own subsistence, but rather whether Ms Nicholson could meet her sponsorship obligations;
b)second, in reaching its findings the Tribunal had regard to:
i)the fact that Ms Nicholson continued to contest the Guardianship Order: CB 389 at [27] and 392 at [47]; and
ii)Mr Barbar’s submission that the Psychiatrist’s Report should not be taken into account: CB 391 at [43] and 392 at [47],
and in so doing provided cogent reasons, which were open to it, as to why it considered it appropriate to take that evidence into account: CB 391 at [43] and 391 at [49]. Accordingly, this was not a case where “no rational or logical decision maker could arrive at [the finding] on the same evidence”: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] and [135] per Crennan and Bell JJ. Mr Barbar is merely disagreeing with the Tribunal’s findings: Minister for Immigration v Eshetu (1999) 197 CLR 626 at [40] per Gleeson CJ and McHugh J; and
c)third, it is not the case that the Tribunal based its findings on no evidence as the Tribunal took into account the evidence of Ms Nicholson’s financial difficulty leading to the Guardianship Order being made and made an assessment of Mr Barbar’s evidence in respect of further support claimed to be available to Ms Nicholson: CB 391-392 at [44]. Further, the Tribunal was not obliged to accept uncritically any and all claims made by Mr Barbar, nor was it required to possess rebutting evidence before holding that a particular assertion was not made out. Mr Barbar is simply inviting the Court to engage in impermissible merits review, contrary to Wu Shan Liang, and there is no jurisdictional error revealed.
In relation to the Tribunal having regard to Mr Barbar’s need for assistance the Minister submitted that the Tribunal specifically had regard to:
a)Mr Barbar’s evidence that he and Ms Nicholson had been living in Ms Nicholson’s supported accommodation: CB 391 at [44];
b)Mr Barbar and Ms Nicholson being reliant on Ms Nicholson’s pension as their principal source of income: CB 391 at [44]; and
c)Mr Barbar’s evidence to have worked for a period of time and contributed financially: CB 392 at [45],
and therefore there was no jurisdictional error revealed.
Further, by way of oral submissions, the Minister submitted:
a)the Tribunal wrote to Mr Barbar and he was invited to further comment on the issue of sponsorship raised by the Tribunal at the Tribunal hearing, however, it appears Mr Barbar did not avail himself of that opportunity;
b)even if there was a failure to comply with PAM3, such a failure could not infect the Tribunal Decision and amount to jurisdictional error: BZAED v Minister for immigration & Anor [2014] FCCA 1531 at [55]-[60] per Judge Jarrett; and
c)the Tribunal’s factual findings and decision are not illogical and Mr Barbar is simply attacking the merits of the Tribunal Decision which is impermissible.
Consideration – denial of procedural fairness and unreasonableness
Mr Barbar claims he was not provided a real and meaningful opportunity to meet the “case against him” as he was not put on notice of what he needed to prove. For there to be a valid claim for a denial of procedural fairness, it must be demonstrated that the alleged impugned procedure deprived Mr Barbar of a fair opportunity to be heard: Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 at [60] per Gageler and Gordon JJ. The Tribunal invited Mr Barbar to attend the hearing to give evidence and present arguments and the Tribunal invitation also made specific note that Ms Nicholson may be required to give evidence and arrangements were to be made for her to attend: CB 151-152.
The Tribunal conducts a fresh review of the Delegate’s Decision: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, and it can be inferred that where the Tribunal has not mentioned a matter in its reasons, that matter can be considered as not having been material to the outcome: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33] per Katzmann, Griffiths and Wigney JJ. Because the Tribunal did not mention, or seem to take issue with, the nature of the relationship between Mr Barbar and Ms Nicholson, the Court can assume the Tribunal was satisfied the relationship was a “de facto” relationship in order for the Tribunal to then go on to assess whether Mr Barbar satisfied the additional time of decision criterion in cl.820.221(4) of sch.2 of the Migration Regulations.
The statutory requirements of ss.359A and 359AA of the Migration Act required the Tribunal to “put” adverse information to Mr Barbar that would be the reason for affirming the decision on review. The Tribunal is only obliged to put an applicant on notice of determinative issues that were not apparent in the Delegate’s Decision: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal put Mr Barbar on notice of the determinative and dispositive issues of the review when it allowed an adjournment based upon the pending SAT hearing to review Ms Nicholson’s Guardianship Order, and furthermore a written invitation to comment on Ms Nicholson’s capacity was sent on 30 September 2015 at CB 362-363. The Tribunal complied with ss.359A, 359AA and 360 of the Migration Act and afforded Mr Barbar ample opportunity to provide evidence and arguments on the issue of Ms Nicholson’s capacity, including granting adjournments: CB 370; SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Tribunal did not need to give a running commentary about its concerns, nor did the Tribunal need to put every doubt, inconsistency or gap to Mr Barbar, and specifically did not need to determine whether benevolence or charity was a satisfactory source of financial capacity: Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285; (2007) 243 ALR 691; (2007) 98 ALD 246 at [88]-[89] per Emmett, Weinberg and Lander JJ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. To the extent Mr Barbar claimed the Tribunal should have put Mr Barbar on notice it was not willing to accept the benevolence of charity donations as evidence of financial capacity and “managing”, the Court does not accept that it was a requirement to do so. The evidence in relation to Ms Nicholson’s financial position was provided to the Tribunal on behalf of Mr Barbar in relation to Ms Nicholson’s capacity, and it was for the Tribunal to make a determination in relation to that evidence which was provided to it to facilitate its determination of the issue.
Mr Barbar made a submission that the Tribunal had “put the applicant to one side” and the decision-making was made in respect of “Person B”. In Nagaki v Minister for Immigration & Anor [2016] FCCA 1070 (“Nagaki”) at [8] per Judge Jarret this Court stated:
I was taken to no provision in the Act or the Regulations which requires the tribunal to provide [the sponsor] with the opportunity to be heard in his own right or to have issues that concerned the tribunal raised with him (as opposed to [the visa applicant]).
Mr Barbar was the Partner Visa applicant, and his providing evidence of a sponsor in accordance with the criteria of cll.820.211 and 820.221 of sch.2 of the Migration Regulations was mandatory. In El-Agha v Minister for Immigration [2005] FMCA 952 (“El-Agha”) at [11] per Nicholls FM the then Federal Magistrates Court said:
Having complied with the statutory requirements, and in these circumstances, the Tribunal was entitled to proceed to make a decision on what was before it. It is clear that at the time of decision the applicant had not provided any definite evidence that he had any other sponsor who was an approved sponsor, or even any details of any proposed sponsor who may ultimately be approved, and who would support his application. It was therefore open to the Tribunal to make the decision to refuse the visa sought by the applicant, on the basis that a very clear regulatory requirement for the granting of that visa was not met. The Tribunal was not and could not be satisfied that an approved sponsor, or even that a potential sponsor, was actually available.
While the Tribunal did have evidence of a “potential sponsor” it found that Ms Nicholson was not an “approved” sponsor and therefore, the “very clear regulatory requirement”: El-Agha at [11] per Nicholls FM, was not met. At the time of the Tribunal Decision Ms Nicholson did not satisfy reg.1.20 of the Migration Regulations.
The Court notes that even though Mr Barbar has not expressly claimed it was unreasonable for the Tribunal not to adjourn until Ms Nicholson’s guardianship issues had been determined by SAT, it was not unreasonable in the Li sense for the Tribunal to proceed to make the determination in circumstances where:
a)at the Tribunal hearing on 17 June 2015 Ms Nicholson and Mr Barbar had both provided evidence to the Tribunal and the Tribunal allowed an adjournment, despite a delay, until the SAT review of the Guardianship Order on 15 July 2015, as it may be required to obtain more evidence in light of what was determined;
b)on 15 July 2015 the SAT hearing in relation to the Guardianship Order review was set for 12 August 2015, and the Tribunal made enquiries as to the resolution of the SAT matter and was advised the matter had been further adjourned at the request of Ms Nicholson until 7 September 2015, though it appeared that this information was incorrect as the SAT order stated the hearing was set for 6 November 2015;
c)the Tribunal invited Mr Barbar to comment on the issues regarding Ms Nicholson’s capacity on 30 September 2015, and the Tribunal granted an extension of time to Mr Barbar to enable more information to be gathered from Ms Nicholson’s lawyers in order to respond to the issues and information “put” to Mr Barbar;
d)having received Mr Barbar’s response, the Tribunal agreed it would not proceed to a determination on the Partner Visa application prior to 13 November 2015 as Ms Nicholson’s SAT hearing was scheduled to “resume” on 6 November 2015 and Mr Barbar, or the Public Advocate, could provide any SAT orders to the Tribunal for its consideration; and
e)the Tribunal was advised the SAT hearing was adjourned to a further mention in January 2016, in circumstances where the review was filed 13 months previously, and five months had lapsed since the SAT hearing, and no progress had seemingly been made in the SAT proceedings.
It is the Court’s view that the Tribunal, proceeding to make a determination on the review without there being any outcome as to the SAT proceedings was, in the circumstances, not one which lacks evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ. There was no evidence as to when there was likely to be an outcome in the SAT matter, and the Partner Visa application did not turn on whether there was or was not a Guardianship Order, it turned on Ms Nicholson being able to satisfy the financial undertakings. The Tribunal did not make an “abrupt” decision, the fact that Ms Nicholson was under a Guardianship Order was not a criteria of the Partner Visa, her being approved as a sponsor was, and the Tribunal had determined she was not approved: Li at [82]-[84] per Hayne, Kiefel and Bell JJ.
With regard to the Tribunal’s consideration and determination of whether Ms Nicholson could assist Mr Barbar, to the extent necessary, financially and in relation to accommodation for two years following the Partner Visa approval: reg.1.20(2)(i) of the Migration Regulations, Mr Barbar referred to the hypothetical beggar on the street who can survive on one teabag for a month, and that a determination of the “extent necessary” is entirely subjective, and that the Tribunal undertook no such subjective inquiry and made a conclusion which was not based on logical or probative evidence or a finding as to what Mr Barbar’s needs were. The Tribunal made the following finding at CB 392 at [50] of the Tribunal Decision:
50. Based on the evidence of Dr Gurgone, as well as the evidence of the orders made by the WA-SAT in relation to the sponsor's finances and given the applicant's clear reliance to date on the sponsor, I cannot be satisfied that the sponsor has the capacity to meet the financial sponsorship obligations at the time of decision. Therefore, the applicant is not sponsored. There is no evidence before the Tribunal that one of the alternative 'time of decision' criteria are met.
The Tribunal considered the assessment process in determining if it was satisfied as to whether Ms Nicholson met the sponsorship obligations to involve assessing Mr Barbar’s likely need for assistance and Ms Nicholson’s capacity to provide assistance: CB 387 at [10]-[11]. Mr Barbar’s evidence was that he was living with Ms Nicholson in her supported accommodation and was reliant on her pension “as their principal source of income” together with support from social and community services and that they “managed”: CB 391-392 at [44]. The Tribunal chose not to give Mr Barbar’s evidence, that he worked for about half the time he lived with Ms Nicholson and contributed financially or Ms Nicholson’s evidence that she did not have any liability to child support payments, much weight, as there was no supporting evidence provided: CB 392 at [45]-[46]. The Court is of the view that this indicated that the Tribunal did assess Mr Barbar’s likely need for assistance together with Ms Nicholson’s capacity to provide assistance.
It is well accepted that the weight the Tribunal gives evidence is a matter for the Tribunal, not the Court: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Nagaki, Tamberlin and Lander JJ. However, the findings made by the Tribunal must be based on rational and logical grounds and supported by probative evidence: SZMDS at [37]-[42] per Gummow A-CJ and Kiefel J. Albeit in the context of a business sponsorship, the following remarks in Leng v Minister for Immigration & Anor [2007] FMCA 1961 at [8], [13] and [19]-[20] per Riethmuller FM are relevant:
8. … The undertaking would not commence to operate until such time as a visa was granted. The undertaking is therefore with respect to conduct that is to occur in the future.
13. It appears clear on the face of the decision that the Tribunal approached the matter not on the basis of determining the likelihood of the sponsor being able to comply with the undertakings from the date of the grant of the visa into the future, but rather whether or not the sponsor would have been able to comply with the undertakings in past years… assessment must be made as to whether the Tribunal is satisfied that the circumstances of the sponsor will allow it to meet those undertakings as and when they are likely to fall due.
19. In the circumstances, I am satisfied that the Tribunal has failed to ask itself the correct question under reg.1.20D(2)(f), in that it has failed to consider precisely what the undertakings were and if they related to making the agreed (as opposed to award) salary, whether or not the sponsor is now able to fulfil its undertakings from the date of the grant of the visa until the end of the sponsorship undertaking's period. Rather, it has considered whether or not at some time in the past the sponsor may have been able to fulfil those undertakings.
20. As the Tribunal has failed to consider the issue required under the regulations, it has therefore failed to exercise jurisdiction. While the past is accepted to be a useful guide to the future, it must be remembered that in considerations like that before the Tribunal it should be only evidentiary basis, not a conclusion, for considering what the future may hold: Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. It is necessary to consider the evidence before the Tribunal and determine if, when read as a whole, the findings of the Tribunal are so unreasonable and illogical that no rational or logical decision-maker could have come to the same findings on the material before it, and there is no evident or intelligible justification for reaching findings: SZMDS at [130] per Crennan and Bell JJ; Li at [76] per Hayne, Kiefel and Bell JJ.
In that regard the Court notes the evidence referred to in the Tribunal Decision:
a)Ms Nicholson suffers from bipolar affective disorder and schizoaffective disorder for which she has previously been admitted to hospital having suffered vagueness, disorientation, confusion and feelings of being overwhelmed and unable to cope: CB 387 at [13]. The Guardianship Order specifically mentioned the Partner Visa application when appointing the Public Advocate and the Public Trustee was appointed to make judgments relating to all matters of her estate as she was found unable to do so in her own capacity: CB 157 and 173. At CB 387-388 at [16] and [17] of the Tribunal Decision, the Tribunal refers to the evidence of Ms Ellis, an investigator at the office of the Public Advocate (reference to “Tamim” is to Mr Barbar):
16. According to the evidence of Ms Ellis before the Tribunal in this matter, the application to the WA-SAT for financial administration is said to have been prompted by concerns that -
Kristine has ongoing difficulties managing her money and paying bills which has worsened since her association with her friend Tamim. According to collateral reports from her GP, Dr Julius Tan and her Southern Cross Care support worker Jan Salmon Tamim recently took Kristine's ATM card and withdrew all the money from the account leaving Kristine without money to buy food and medication required for her mental illness. Kristine had confirmed this to Ms Young on two separate occasions.
17. Ms Ellis's evidence was also that the appointment of guardianship was said to have been prompted because -
Kristine's friend Tamim has been taking her to legal appointments and encouraging her to sign legal documents to assist him to obtain a visa to stay in Australia (he was to be deported due to overstaying his original visa). We do not believe Kristine has the capacity to fully comprehend the documents she is being requested to sign or the ramifications of providing false information, due to her mental illness. Kristine reports she has recently signed document stated that Tamim has been her 'partner' for the last two years which is contradictory to information provided to her GP, her support worker and mental health staff at Osborne Clinic. Kristine stated to mental health staff that she did not want to sign the documents and requested that one of the nurses from Hospital in the Home Help (HITH) service tell Tamim this on her behalf. Deborah Morris from the HITH service advised Tamim of this and he is reported to have been very understanding however he subsequently took Kristine to a legal appointment where Kristine signed legal documents relating to a visa for Tamim. Kristine is a very vulnerable woman who is at high risk of exploitation and there are significant concerns that Tamim is exploiting Kristine to obtain a visa.
b)Ms Nicholson’s evidence at the hearing: CB 389 at [25]-[26]:
25. Ms Nicholson confirmed that, not long before the application for administration and guardianship was made, she had been without money for food and medicine and had advised her Support Worker at Southern Cross. She denied that the review applicant had taken her ATM card, asserting instead that she gave it to him. She indicated that the review applicant had withdrawn the money from her account “out of frustration” and for the purposes of “his partnership visas” because “no one was helping him” with that.
26. With respect to the sponsorship documents, while she initially denied telling support workers that she had concerns about being pressured to sign such documents, she acknowledged that in May, she “was unwell and wasn't thinking clearly”. She said that at the time, she was “nervous about signing partnership visa documents" and “thought it was a big thing.” She said that she expressed her concern to Deborah, a mental health nurse. She told Deborah that she was “scared” and that it was all too much for [her] at that time.
c)the Psychiatrist’s Report did to some extent address the capacity of Ms Nicholson to understand the sponsorship obligations, stating that:
Ms Nicholson's capacity is limited with regards to financial matters… bearing in mind that I have indicated that Ms Nicholson lacks capacity with regards to her financial affairs, it is unlikely that Ms Nicholson is able to understand the financial ramifications of such sponsorship.
CB 390-391 at [40].
That information was put to Mr Barbar for comment, and the Tribunal went on to find that in light of other evidence, that the Psychiatrist’s Report was credible and some weight could be given to it; and
d)the assertion that Ms Nicholson had no liability for child support payments was given no weight by the Tribunal based upon a lack of documentary evidence as was the claim Mr Barbar had worked and contributed financially to the partnership on the basis there was no documentary evidence confirming that, and in any event Mr Barbar would have been working unlawfully had he been doing so: CB 392 at [45]-[46].
The Tribunal placed weight on the Guardianship Order made by the SAT, particularly as to Ms Nicholson’s finances, as well as the evidence of her financial difficulty leading up to the making of the Guardianship Order, including medical reports that Ms Nicholson admitted she was struggling financially and that she had been unable to purchase her medication. The Court does not accept the submission that the Tribunal’s consideration of the Guardianship Order as probative evidence of Ms Nicholson’s lack of financial capacity was unreasonable or an illogical finding, in circumstances where the Tribunal was assessing her capacity to meet the sponsorship undertakings.
The Tribunal was therefore required to determine if Ms Nicholson could provide financial capacity to the “extent necessary” for the two year period following the grant of the Partner Visa. The Tribunal noted Ms Nicholson was provided with supported accommodation and her disability pension was the principal source of income, and that Mr Barbar stated they have “managed” and “got by and are very happy doing so”: CB 391-392 at [40]. In submissions made on behalf of Mr Barbar to the Tribunal in support of the Partner Visa application it was stated at CB 113 and 380:
The fact is they are both poor, particularly Mr Barbar, and, effectively, have no assets to share nor money to deposit in a shared bank account. Mr Barbar is largely Ms Nicholson's dependant financially. Her principal 'asset' is her lease on a Department of Housing unit which she shares with Mr Barbar… The fact is that Ms Nicholson has actively concealed from the Department of Housing that Mr Barbar has been living there and hence there is no tenancy agreement to which they are both parties. That may be an issue between her and the Department of Housing but it does not detract from the fact that they meet the condition prescribed at s5CB(2)(c)(i) of the Act, viz they live together…[CB 113]
She is obtaining further psychiatric opinion to support her contention that the orders should not be renewed. The reason why she had not obtained the opinion is that she could not afford the fee of the psychiatrist on the day that her solicitors had arranged the appointment. It is in excess of $600 for the assessment and report. [CB 380]
While the Court accepts the Tribunal did not undertake a direct assessment of Mr Barbar’s personal needs, the Tribunal considered the Guardianship Order insofar as it was indicative of Ms Nicholson's finances, as well as the evidence of her financial difficulty leading up to the making of the Guardianship Order, was sufficient evidence that Ms Nicholson could not meet the sponsorship undertakings as she was legally deemed incapable of supporting or handling her own estate. There was no indication Ms Nicholson’s Guardianship Order would be set aside prior to January 2016, and given that at the time of the Tribunal Decision she was on a disability support pension and unable to pay for her own medical expenses, it was reasonable and logical for the Tribunal to conclude that Ms Nicholson would be unable to provide financial assistance for Mr Barbar to the extent necessary, or at all, for the two years after the grant of the Partner Visa application.
The fact that Mr Barbar and Ms Nicholson had survived to the extent necessary was a relevant consideration and claim, however, the Tribunal rejected that assertion on the basis that Ms Nicholson was the subject of the Guardianship Orders, and on other materials before the Court which showed she was clearly in debt and required the assistance of other parties to ensure she could meet her debts, including for medications, as and when they fell due. In circumstances where there was no evidence before the Tribunal that Ms Nicholson had financial capacity by way of tangible assets or bank deposits, but where, rather, the material and evidence before the Tribunal was that she was incapable of managing her financial affairs on her own behalf, it was reasonable and logical for the Tribunal to find she did not meet the financial obligations to support Mr Barbar. Therefore, the Court does not find on the totality of the material before the Tribunal that it was illogical or unreasonable for the Tribunal to determine this issue as it did.
Mr Barbar was sponsored by Ms Nicholson: there was no other person against whom the Tribunal could assess the undertakings or Mr Barbar’s capacity to support himself: Migration Regulations, sch.2, cll.820.211(c) and 820.221(4); Fernandez. Having named Ms Nicholson as his sponsor, she was the sponsor referred to in cl.820.211(c) of sch.2 of the Migration Regulations, therefore it was the sponsorship referred to in that clause which had to be approved and be “still in effect” to satisfy cl.820.221(4) of sch.2 of the Migration Regulations. Therefore, that Mr Barbar claimed he received financial assistance from other sources was irrelevant as it was Ms Nicholson who was the named sponsor and who was required to be approved by the Minister. Further, in the Court’s view, the finding of the Tribunal at CB 391-392 at [44] that the benevolence of charitable organisations could not be relied upon as evidence of Ms Nicholson managing financially or being able to meet her sponsorship obligations is also a logical and reasonable finding, as there was a lack of evidence as to the amount of the donations, the extent to which financial assistance could be provided, whether there were any terms or conditions attached to the donations, or any assurance that the donations would continue. The Court observes that the finding made by the Tribunal in that regard is not one to which no logical or rational mind could have come: SZOOR at [3] per Rares J.
The Court is of the view that Mr Barbar was afforded procedural fairness and ultimately the Tribunal’s findings and conclusions are reasonable and logical. Accordingly no jurisdictional error in the Tribunal Decision is established.
Conclusion
The Court has concluded no jurisdictional error has been established in the Tribunal Decision and therefore the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 27 August 2019
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