Bangash v Minister for Immigration and Multicultural Services
[2025] FCA 198
•13 March 2025
FEDERAL COURT OF AUSTRALIA
Bangash v Minister for Immigration and Multicultural Services [2025] FCA 198
Appeal from: Bangash v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 227 File number: NSD 233 of 2021 Judgment of: BROMWICH J Date of judgment: 13 March 2025 Catchwords: MIGRATION – legal unreasonableness – procedural fairness – whether primary judge erred in not finding error in Administrative Appeals Tribunal’s decision – HELD: appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5CB, 359, 359A(4)(b), 359A, 359C, 360
Federal Court Rules 2011 (Cth) rr 40.43(1)(a), 40.43(3); Sch 3, item 15.2
Migration Regulations 1994 (Cth) Sch 2, cl 820.211(2)(d); Sch 3, criteria 3001, 3001(1), 3003, 3004
Cases cited: Bangash v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 227
BAX16 v Minister for Immigration and Border Protection [2018] FCA 181
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 42 Date of hearing: 13 March 2025 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr N Swan Solicitor for the Respondents: Sparke Helmore ORDERS
NSD 233 of 2021 BETWEEN: AMER ALI BANGASH
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to the Administrative Review Tribunal.
3.The appeal be dismissed.
4.The appellant pay the first respondent’s costs, fixed in the sum of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal by Mr Amer Ali Bangash from orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia, then the Federal Circuit Court of Australia: Bangash v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 227. The primary judge dismissed an application by Mr Bangash for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, now the Administrative Review Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs, not to grant the appellant a Partner (Temporary) (Class UK) visa.
The grounds of appeal, with the particulars removed, are (verbatim):
(1)The Court below erred in finding that the Administrative Appeals Tribunal (AAT) failed determine that the AAT committed legal error.
(2) The Tribunal decision is unreasonable due its failure to adjourn the hearing.
(3)The Tribunal’s decision is inherently inconsistent and contradictory. The Tribunal failed to engage in realistic consideration.
(4)The Tribunal failed to comply with s 359 (A) of the Act in respect of information that it considered would be their reason or part of the reason for affirming the decision under review.
(5) The Tribunal failed to consider relevant considerations, being:
(a)…the long-term relationship since at least since 2013 when considering Sch 3 criteria.
(b)…the applicant’s and the sponsor’s fear of their inter-faith relationship as a compelling reason for the applicant to suffer significant issues when assessing Sch 3 criteria.
Only ground one, and only at a high level of generality and with some errors in expression, is directed towards the judgment on appeal. The rest are directed to the Tribunal’s decision, repeating the substance of the judicial review grounds brought in the Court below. This is not and cannot be an appeal from the Tribunal’s decision, as opposed to an appeal from some aspect of the primary judge’s decision on the judicial review of the Tribunal’s decision.
Mr Bangash did not provide any written submissions. Nor did he make any oral submissions. Instead, at the appeal hearing, he applied for an adjournment so that he could obtain a lawyer, but also said that he had no money to pay for a lawyer and was not permitted to work. I refused that application upon the basis that it had been over four years since the primary judge’s decision and also over four years since he filed his notice of appeal, and in those circumstances there was no prospect that he would be in any position to retain a lawyer in the foreseeable future. I also declined to make a pro bono referral, also sought at the appeal hearing, upon the basis that the prospects of that being of any material use to him were remote and a scarce resource such as that should be reserved for cases of greater merit.
For the reasons that follow, there was no error on the part of the primary judge, nor any on the part of the Tribunal. The appeal was at all times hopeless.
The procedural history
Refusal of the Partner visa application by a delegate of the Minister
Mr Bangash applied for the Partner visa on 20 May 2015, on the basis of his purported de facto relationship with Ms Nicole Chen, who was his sponsor. The last substantive visa Mr Bangash held had expired in 2011.
Because Mr Bangash had not held a substantive visa at the time he applied for the Partner visa, he was required to comply with, among other things, each of mandatory criteria 3001, 3003 and 3004 in Sch 3 of the Migration Regulations 1994 (Cth) (the Sch 3 criteria), unless the Minister was satisfied that there compelling reasons for not applying those criteria: Migration Regulations Sch 2, cl 820.211(2)(d). As Mr Bangash had failed to apply for the Partner visa within 28 days of the expiry of his last substantive visa, criterion 3001(1) was not met, and the delegate proceeded to consider whether there were compelling reasons for not applying that criterion.
Considering the totality of Mr Bangash’s circumstances, including the apparent fabrication of some of the evidence for his relationship, the previous failure of his protection visa application, and a history of repeated unmeritorious visa applications, the delegate concluded that there were no compelling reasons for not applying the 3001 criterion. The Partner visa application was therefore refused.
The Minister’s delegate’s decision is affirmed by the Tribunal
The delegate’s decision was subsequently affirmed by the Tribunal. The Tribunal’s reasoning was that:
(a)it was not satisfied that Ms Chen was Mr Bangash’s de facto partner, as defined in s 5CB of the Migration Act 1958 (Cth), and therefore determined that he did not meet the requirement of cl 820.221(1) of Sch 2 to the Migration Regulations;
(b)Mr Bangash had failed to comply with criteria 3001, and therefore did not meet that requirement under cl 820.211(2)(d) in Sch 2 of the Migration Regulations; and
(c)there were no compelling reasons not to apply the Sch 3 criteria in the circumstances.
Some of the procedural history of that decision is relevant to this appeal.
On 16 October 2018, the Tribunal wrote to Mr Bangash, via his solicitor, inviting him to attend a hearing on 16 January 2019, and inviting him to provide information about the financial and social aspects of his relationship with his sponsor and the nature of their commitment. It noted that the last information that had been received about their relationship dated back to 2015, and noted that the lack of information since then was relevant to is decision.
The invitation was accepted, but Mr Bangash provided no comment on the matters raised in the Tribunal’s letter.
Mr Bangash then sought an adjournment of the Tribunal hearing on mental health grounds.
On 14 January 2019, the Tribunal wrote to Mr Bangash’s solicitor to inform him that the adjournment would be granted, and the hearing was rescheduled to be heard on 9 April 2019. In that correspondence, the Tribunal also wrote, with the emphasis being in the original text:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us…
The Member reviewing your case has asked me to advise you that no further postponement of the hearing will be granted on medical grounds unless you provide the Tribunal with a full report from your treating doctor indicating why you are unable to attend a hearing before the Tribunal. A brief certificate stating that you should be given time to improve your mental state before appearing before the Tribunal and that you are under stress and depression and not in a state of mind to appear before the Tribunal because you are on a high dosage of medication under the guidance of your general practitioner will not be sufficient. The doctor preparing the report should comply with the Tribunal's requirements for expert reports and should be aware that they may be summoned to appear before the Tribunal to give evidence in relation to your medical condition.
On the same day, the Tribunal sent another letter to Mr Bangash, via his solicitor, informing him that a non-disclosure certificate had been issued pursuant to s 376 by the Department of Immigration and Border Protection in relation to some information on his Tribunal file. The Tribunal informed Mr Bangash that the information related to a tip-off that his relationship was contrived, and that his sponsor was in a relationship with someone else; and that the certificate was issued to prevent the identification of the person who made the tip-off. The Tribunal wrote that it considered the certificate to be valid. The Tribunal invited Mr Bangash to comment on the question of whether it should rely on the validity of the s 376 certificate, and the other information raised by the letter, by 29 January 2019.
By his solicitor, Mr Bangash accepted the invitation to appear at the rescheduled hearing. He did not provide comment on the certificate or adverse information raised in the Tribunal’s letter.
On 5 April 2019, by his solicitor, Mr Bangash then sought a further adjournment prior to the rescheduled hearing. In support, his solicitor provided to the Tribunal a doctor’s certificate that stated that Mr Bangash was “suffering from anxiety depression and on medication and seeing psychologist. He is not well to attend the interview on 9/4/19.” Also provided was a brief report from a consultant psychologist, dated 1 March 2019. It stated that Mr Bangash was “still experiencing adjustment issues in relation to environmental stressors, particularly his immigration situation and will benefit from ongoing psychological therapies.”
The sought adjournment was not granted, and Mr Bangash did not appear at the re-scheduled hearing.
After the hearing, on 12 April 2019, the Tribunal wrote to Mr Bangash to say that it would proceed to a decision on the review, and invited him to provide comment and information to support the existence of his relationship with the sponsor, and reasons not to apply the Sch 3 criteria by 26 April 2019. He was also informed that he could seek an extension to that time. Mr Bangash did not provide any comment or any further information. The Tribunal was left with no information about the asserted de facto relationship in the period between 2015 and the time of the decision in 2019. The Tribunal was not satisfied that any of the other bases relied upon constituted a compelling reason not to apply criterion 3001.
The judicial review application of the Tribunal’s decision fails
A judicial review application of the Tribunal’s decision failed before the primary judge. His Honour’s reasons are addressed in the course of considering the appeal grounds.
The grounds of appeal
The grounds of appeal, with the particulars removed, are extracted verbatim at [2] above.
As already noted, taken on its own, ground 1 is an unparticularised assertion that the primary judge erred in not finding that the Tribunal did not commit legal error. Appeal grounds 2-5 are an effective restatement of the judicial review application grounds before the primary judge. Read with each of the following grounds 2-5, ground 1 is an allegation of error on the part of the primary judge in not upholding each of the four grounds of review before his Honour, being appeal grounds 2-4. I have read the notice of appeal in that beneficial way.
As noted above, Mr Bangash has not provided any written submissions and has not made any oral submissions on his appeal. The Minister has filed written submissions.
Ground 1 with ground 2 – error by the primary judge in failing to find that the decision of the Tribunal not to adjourn the hearing was (legally) unreasonable
The primary judge said of the corresponding ground 1 of review, informed by the particulars (at [23]):
In relation to ground 1, the Tribunal identified the history and the earlier application for an adjournment and the absence of provision of information and answer to the s 359A letter. This provides an evident and intelligible justification for the decision of the Tribunal not to adjourn the proceedings in response to the medical information provided by the applicant. The applicant was aware of the hearing date and, in the circumstances, it was open to the Tribunal to proceed to make a determination and it was not legally unreasonable of the Tribunal to not adjourn the matter. Further, the Court accepts the first respondent’s submission that, in any event, the applicant had lost the right to appear at the Tribunal by reason of his failure to provide a response, given the provisions of ss 359C and 360 of the Act. The Court does not accept that the sending of the response to the hearing invitation or the communication in relation to medical reports was a response in accordance with the s 359A letter. Accordingly, even if there were an error in relation to the request for an adjournment, it is not capable of giving rise to a jurisdictional error because the applicant had lost his opportunity to have a hearing by reason of failing to respond to the s 359A letter. No jurisdictional error is made out by ground 1.
There are a number of difficulties with this ground, as correctly identified by the primary judge. The first is that Mr Bangash had failed to respond to the Tribunal’s invitations to give information, or to comment or respond to adverse information. Section 359C therefore entitled the Tribunal to make a decision on the review without further action to obtain information from Mr Bangash or Mr Bangash’s views on the adverse information. By section 360, the Tribunal was therefore not required to invite the applicant to appear before it.
In any case, the decision not to adjourn the hearing, in circumstances where an adjournment had already been granted, was not unreasonable. The medical information provided was sparse and general, and did not meet the requirement set out in the Tribunal’s earlier letter (extracted at [14] above). Mr Bangash was also apparently represented, and there is no explanation why his appointed representative would have been unable to make submissions at the hearing or in writing on his behalf. The Tribunal afforded Mr Bangash more than ample opportunity to provide submissions and information, which he declined.
As no error on the part of the primary judge has been established, this ground must fail.
Ground 1 with ground 3 – error by the primary judge in failing to find the Tribunal’s decision was legally unreasonable
The primary judge said of the corresponding ground 2 of review, informed by the particulars (at [24]):
In relation to ground 2, contrary to the applicant’s submissions, there were not inconsistent findings in relation to the issue of compelling reasons by way of the Schedule 3 criteria. It was open to the Tribunal to make the adverse finding at time of decision in respect of the applicant and the sponsor being in a de facto relationship. The Tribunal correctly noted that such a relationship for the basis for the requirement for a Partner visa. The Tribunal found that it was not satisfied that the applicant and sponsor continued to be de facto partners. The Tribunal provided logical and rational reasons in support of that finding in circumstances where the applicant had not respondent to the s 359A letter and where the Tribunal did not have the benefit of further evidence from the applicant. No jurisdictional error is made up by ground 2.
Ground 3 arguably goes a little further than the primary judge’s reasons in that it contends that it was inconsistent for the Tribunal to both consider that Mr Bangash and the sponsor were not in a de facto relationship, but also to proceed to consider whether there were compelling reasons not to apply the Sch 3 criteria. The argument is that proceeding in that way implicitly demonstrated that the Tribunal had formed the view that the two were in such a relationship. I am unable to accept that is so.
While it would have been sufficient for the Tribunal to affirm the delegate’s decision based only on its finding that it was not satisfied that Mr Bangash was in a de facto relationship with Ms Chen, there was nothing wrong with the Tribunal also considering the other visa criteria. The Tribunal’s consideration of the appellant’s circumstance was detailed and exhaustive. It impossible to infer from this that the Tribunal had implicitly found the de facto relationship existed, especially where it had already expressly found to the contrary.
This ground must fail.
Ground 1 with ground 4 – error by the primary judge in not upholding that there was a failure by the Tribunal to invite comment under s 359A
The primary judge said of the corresponding ground 3 of review, informed by the particulars (at [25]):
In relation to ground 3, it appears that the applicant submits that the Tribunal should have found that the information in relation to his visa cancellation was adverse information. The Court does not accept that the cancellation of the visa was information of a kind enlivening the obligation under s 359A of the Act. In any event, the Court accepts the first respondent’s submission. It is clear the information in respect of the cancellation of the visa was in the Delegate’s decision, which the applicant provided in support of the review application. Accordingly, there is no obligation under s 359A(4)(b) of the Act to take any steps in respect of that information. Insofar as the information the subject of the s 376 certificate is concerned, the Court accepts the first respondent’s submission that the s 359A letter complied with the requirements of the Act in relation to that adverse information. It is further apparent that the Tribunal decided to determine the matter otherwise than on the basis of that adverse information. There is no relevant failure to comply under s 359A of the Act. No jurisdictional error as alleged in ground 3 is made out.
By ground 4, Mr Bangash contends that the Tribunal was required to invite him to comment on when his last substantive visa expired. Even if that information could enliven the Tribunal’s obligations under s 359A, it was noted in the delegate’s decision, and therefore part of the information provided to the Tribunal for the purposes of its review. It was therefore subject to the exception in s 359A(4)(b), as the primary judge correctly noted.
As no error on the part of the primary judge has been established, this ground must fail.
Ground 1 with ground 5 – error by the primary judge in failing to find the Tribunal did not consider (mandatory) relevant considerations
The primary judge said of the corresponding ground 4 of review, informed by the particulars (at [26]):
In relation to ground 4, it is apparent that the Tribunal took into account the period of the relationship, as identified in the Tribunal’s reasons as summarised above. Further, this ground appears to be nothing more than an invitation to engage in merits review. The Tribunal found it was not satisfied that the parties at the time of decision were in a de facto relationship. The Tribunal referred to the fact that even if they were in a de facto relationship, they failed satisfy the Tribunal that they continued to be de facto partners at the time of decision. In these circumstances, the Tribunal did not accept the applicant’s premise that there was a long term relationship. In relation to the second particular to this ground, it is apparent that the Tribunal did not accept there was a continuing relationship. Accordingly, the applicant’s submissions in relation to the interfaith relationship as a compelling reason is undermined by the adverse finding made by the Tribunal in respect of it not being a continuing relationship. Ground 4, in substance, is an invitation to engage in a merits review. No jurisdictional error is made out by ground 4.
By ground 5, Mr Bangash contends that the Tribunal failed to consider that he had been in a long-term relationship with the sponsor and their fear of their inter-faith relationship when assessing the Sch 3 criteria. The description of the latter consideration is unclear, but I take it to refer to Mr Bangash’s submissions about his fear in returning to Pakistan as a member of the Shia faith. I also take him to be submitting that these should have been considered in relation to the question of whether there were compelling reasons not to apply the Sch 3 criteria. Viewed in this way there was arguably more to this ground in form than was addressed by the primary judge, but nothing more in substance. The focus must be on there being any error in the ultimate conclusion reached.
At [39] of its decision, the Tribunal did consider Mr Bangash’s claims about his fears of religious persecution if returned to Pakistan in its consideration of whether there were compelling reasons for not applying the Sch 3 criteria. It did not consider those claims were made out, however, because they were not substantiated by independent evidence.
The Tribunal also considered Mr Bangash’s claim about his long-term relationship with the sponsor as part of its consideration of whether the two were in a long-term relationship. At [21]-[30] of its decision, the Tribunal considered that the de facto relationship was not proved. Where an adverse finding had already been made as to its existence, there was no reason to discuss the stated de facto relationship in relation to the question of whether there were compelling reasons not to apply the Sch 3 criteria.
The Tribunal considered these claims, but did not consider them to be made out. This ground is without merit and nothing turns on the possible incompleteness of the primary judge’s treatment of the corresponding ground of review.
This ground of appeal must fail.
Conclusion
As none of the grounds of appeal have succeeded, the appeal must be dismissed. Mr Bangash must pay the Minister’s costs.
The Minister seeks a qualified costs order in the sum of $4,000. That amount is just over half the costs ordered by the primary judge, and just under half the sum of $8,323 provided for by the Federal Court Rules 2011 (Cth) in relation to migration appeals following an appeal hearing: see r 40.43(1)(a) and (3), read with item 15.2 in Schedule 3 to those Rules. In doing so I adopt the reasons of Griffiths J in BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]-[30]. I consider the sum of $4,000 sum to be reasonable in all the circumstances, including the apparent impecuniosity of the Mr Bangash. I will order accordingly.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 13 March 2025
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