BST15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 203
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BST15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 203
File number(s): SYG 788 of 2017 Judgment of: JUDGE EGAN Date of judgment: 25 March 2022 Catchwords: MIGRATION – application for partner visa - whether considerations required to be taken into account in a partner visa application are akin to those to be taken into account in a protection visa application – whether the distinction between the two types of visa applications was relevant to the Tribunal exercising the power to get any further information under s. 359 of the Act – whether the Tribunal ought to have had regard to the interests of a child or children as a primary consideration – no jurisdictional error established – application dismissed. Legislation: Migration Act 1956 (Cth) s. 359 and 424.
Migration Regulations 1994 (Cth) Sch. 2 cl 820.211(2)(d)(ii) and Sch. 3 cl. 3001.
Cases cited: Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Singh v Minister for Home Affairs (2020) 274 FCR 506.
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 11 March 2022 Date of hearing: 11 March 2022 Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Unisaj Legal Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
SYG 788 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BST15
Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
25 MARCH 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Migrant Services and Multicultural Affairs.
2.The name of the applicant be anonymised using the pseudonym ‘BST15’, and that his other identifying particulars not otherwise be disclosed.
3.A new file be created which anonymises the name of the applicant and instead uses the pseudonym ‘BST15’.
4.The Amended Application for Review filed on 27 August 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a citizen of Egypt who is approximately 35 years of age.
On 14 October 2016, a delegate of the Minister refused to grant to the applicant a Partner (Temporary) (Class UK) Visa. The delegate was not satisfied that the applicant met the relevant criteria as set out in clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Clause 820.211(2)(d)(ii) relevantly provided as follows:
“820.211(2)(d)(ii)
(2) An applicant meets the requirements of this subclause if:
(d)in the case of an applicant who is not the holder of a substantive visa either:
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”.
Clause 3001 of Schedule 3 to the Regulations relevantly provided as follows:
“3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.”
It was not in issue that the last substantive visa held by the applicant ceased on 20 October 2010. As the application for the partner visa was not made within 28 days after the cancellation of the substantive visa, the applicant failed to meet the relevant criteria under clause 3001 of Schedule 3 to the Regulations.
Having considered the facts provided in support of the application made by the applicant, the delegate was not satisfied that there were compelling reasons justifying the waiver of the Schedule 3 criteria.
The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (the Tribunal).
On 16 November 2017, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the person who was asserted by the applicant to be his de-facto sponsor.
On 22 November 2017, the Tribunal affirmed the decision of the delegate.
On 6 December 2017, the applicant filed an Originating Application for Review of the decision of the Tribunal.
At the time of the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 27 August 2021, the Grounds of which were relevantly as follows:
“1.The Second Respondent (Tribunal) made a jurisdictional error by failing to get information under s. 359 of the Act.
a.The tribunal noted at paragraph 22 of its decision that the applicant had converted to Koranism in Australia;
b.The Tribunal noted at paragraph 22 of its decision that the Applicant feared he would be publicly identified as a Sunni non-conformist on his return to Egypt;
c.The Tribunal noted at paragraph 21 of tis decision that the Applicant feared arrest on account of his faith in Egypt;
d.The Tribunal was not satisfied on the Applicant’s evidence that there was an “actual direct threat to his wellbeing”;
The Tribunal had a discretion to get information under s. 359 of the Act;
e.The Tribunal’s decision was bounded by legal unreasonableness such that a failure to get information under s 359 of the Act was judicially reviewable where was no intelligible justification for the Tribunal refraining from getting the information: ABT17 v Minister for Immigration [2020] HCA 34;
f.The 2017 country information report on Egypt from the Department of Foreign Affairs and Trade (DFAT) contained material at [3.12] to [3.14] relevant to harm on Egypt on account of faith;
g.There was no relevant basis for the Tribunal to refrain from obtaining and considering the information.
2. The Tribunal made a jurisdictional error in relation to the best interests of the children.
a. The Tribunal noed at paragraph 25 of its decision that the children could maintain contact with the Applicant using IT facilities and thereby support each other while the Applicant remained offshore;
b.The Tribunal noted at paragraph 26 of tis decision that the best interests of the children lay in haing the Applicant resole his immigration status, including offshore;
c.The Tribunal was required to consider the bests interests of the children as a primary consideration: DXQ16 v Minister for Immigration [2020] FCA 1184;
d. The Tribunal was required to give proper, genuine and realistic consideration to the best interests of the children: Promsopa v Minister for Immigration [2020] FCA 1480;
e.The Tribunal did not identify the best interests of children as being with the Applicant and the sponsor in Australia while his immigration status was resolved;
f. The Tribunal did not treat those interests as a primary consideration;
g.The Tribunal did not properly identify and grapple with the best interests of the children, instead relying on the generality that it was in their interests fot he Applicant to have his immigration status resolved.
The applicant’s relevant migration application history was set out at [8] – [10] inclusive of the reasons of the Tribunal as follows:
“[8]On 1 September 2006, the applicant entered Australia as the holder of a Student visa. On 20 August 2008, the Student visa ceased. On 20 October 2010, a further Student granted to the applicant ceased. On 6 January 2011, the applicant was refused a further Student visa. On 25 July 2013, the Migration Review Tribunal (MRT) affirmed the refusal. On 18 December 2013, the Minister determined that he would not consider the applicants intervention request. On 8 December 2014, the applicant was granted a Bridging visa on the grounds that he would make arrangements to depart Australia. On 13 January 2014, the applicant lodged an application for a Protection visa. On 28 July 2014, the Protection visa application was refused. On 7 August 2015, the Refugee Review Tribunal (RRT) affirmed the Protection visa refusal. On 9 December 2015, a Federal Circuit Court review lodged the applicant was unsuccessful. On 23 February 2016, the applicant was advised that his Ministerial Intervention request was not considered. On 9 June 2016, a further Protection visa application was not allowed. On 16 June 2016, the applicant was granted a Bridging visa on the grounds that he would depart Australia by 23 June 2016. On 23 June 2016, the applicant was granted a Bridging visa on the grounds that he would depart Australia by 7 July 2016. On 22 June 2016, the applicant lodged the Partner visa application.
[9]The sponsor was born in 1985 in Egypt. She is an Australian citizen. Her parents, two brothers and four siblings live in Australia. In April 2007, the sponsor married Mr Ali Hammoud. In March 2014, the sponsor and Mr Hammoud divorced. On 26 April 2014, the sponsor married Mr Mustafa Al Tabaiba. On 9 July 2016, the sponsor and Mr Tabaiba divorced. The sponsor has two children who live in Australia.
[10]On 15 April 2015, the parties met. On 1 June 2015, the parties’ de facto relationship began. On 1 September 2015, the parties committed to a shared life to the exclusion of all others. On 19 July216, the parties married under Islamic Rites. On 24 August 2017, the sponsor gave birth to the parties’ daughter. On 1 September 2015, the parties committed to a shared life to the exclusion of all others. On 19 July 2016, the parties married under Islamic Rites. On 24 August 2017, the sponsor gave birth to the parties’ daughter.”
Consideration of Grounds of Review
Ground 1 of the Amended Application for Review was a claim that the Tribunal breached the provisions of s. 359 of the Migration Act 1958 (Cth) (the Act) by unreasonably failing to get further information said to be relevant about alleged threats which might be faced by the applicant should he be returned to Egypt. Specifically, it was asserted that the Tribunal ought to have obtained a 19 May 2017 DFAT Country Information Report on Egypt. [1] It was submitted on behalf of the applicant that because the applicant would be treated as a Sunni non-conformist if returned to Egypt, the applicant ought to have been treated by the Tribunal as a member of a class of people who were under threat of suffering a real chance of harm.
[1] Annexure A to affidavit of Siddique Panwala filed on 27 August 2021.
First, the argument advanced on behalf of the applicant is in effect that which would ordinarily be advanced upon review of a decision to refuse to grant a protection visa. It could not be said that the legislature intended that such claims could legitimately be made in a partner visa context. The applicant had already had two earlier protection visa applications refused, and he had exhausted his remedies in that regard. The Court finds that the question as to whether or not there were compelling reasons for waiving the relevant Schedule 3 criteria or not ought not to be considered based upon those considerations relevant to a review of a refusal decision in respect of a protection visa, or other similar, application.
To the extent that the applicant placed reliance upon ABT17 v Minister for Immigration (2020) 269 CLR 439, such reliance was misconceived. ABT17 was a decision of the High Court involving a fast track decision being made by the Immigration Assessment Authority under Part 7AA of the Act, which was markedly different from the reviewable decision of the Tribunal made in the present matter under Part 5 of the Act. In ABT17, the Court was there dealing with considerations relevant to the provisions of s. 473DC of the Act which were very different from the statutory context in which relevant considerations were required to be taken into account in respect of the provisions of s. 359 of the Act. The facts of ABT17 were likewise very different from, and distinguishable from, the facts of the current matter.
The Court accepts the argument advanced on behalf of the first respondent that the applicable principles governing the operation of s. 359 of the Act were as set out by Markovic J, when considering the analogous provisions of s. 424 of the Act, in SZSYG v Minister for Immigration and Border Protection [2015] FCA 1319, where at [23] – [24] it was said:
“[23]The power in s 424(1) is permissive not mandatory. There is no obligation on the Tribunal to exercise its power to get any information that it considers relevant. In my view the primary judge did not err in his findings in relation to the operation of s 424(1).
[24]Given the permissive or discretionary nature of the power, in my view there is no obligation on the Tribunal to consult the appellant on whether it should exercise its powers under s 424(1). It is a matter for the Tribunal. The fact that the Tribunal considered itself, without any request from the appellant to do so, the possibility of contacting the author of the letter does not lead to the result that the Tribunal was then bound to consult the appellant about whether it should in fact proceed to exercise its powers. The decision as to whether to exercise powers under s 424(1) of the Act is one for the Tribunal alone.”
In any event, the Tribunal found that it was not satisfied that there was any actual direct threat to the applicant’s well-being should he be returned to Egypt based upon the evidence before it. Such finding was open on such evidence before the Tribunal.
Further, the contents of paragraphs 3.12 - 3.14 of the 2017 DFAT report relied upon by the applicant were immaterial, in that even if the Tribunal had considered same, it could not realistically have resulted in the Tribunal arriving at a different conclusion. [2] The substantive claims of the applicant did not specifically refer to religion defamation or blasphemy, which is what those generic paragraphs of the DFAT report were concerned with.
[2] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46] per Bell,
The Tribunal was under no obligation to obtain any further information for its consideration of the applicant’s claims. It cannot be said that the Tribunal when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Ground 1 of the Amended Application for Review is without merit.
Ground 2 was a claim that the Tribunal had an obligation to treat the interests of the applicant’s children as a ‘primary consideration’ relevant to a consideration as to whether there were compelling reasons for waiving the relevant Schedule 3 criteria.
In Singh v Minister for Home Affairs (2020) 274 FCR 506, the Full Court (Logan, Reeves and R Derrington JJ) was there dealing with an argument that the Tribunal, ‘ … in ascertaining for the purposes of clause 820.211(2)(d)(ii) whether compelling reasons existed, failed to take into account that the interests of the rights of the child should be a primary consideration.’ [3] At [62] – [66] inclusive it was said, per Derrington J, as follows:
[3] At [46]
[62]The appellant’s submissions obfuscated how the interests of a child were to be a primary consideration in reaching the specified state of satisfaction. The insurmountable hurdle for the appellant is that it is now well accepted that un-enacted treaty obligations do not impose obligations on decision-makers to take into account international obligations arising thereunder. This was the considered conclusion in Kaur which concerned the formation of a state of mind on which a power was conditioned. It did not concern the exercise of a discretion. In SZRLY v Minister for Immigration and Citizenship[2012] FCA 1459 at [29], Griffith J referred to the existence of a long line of authority to the effect that the principle in Teoh has no application to the exercise of a non-discretionary power. Similarly, here the process engaged in by the Tribunal was the formation of a state of satisfaction, a task not involving an exercise of discretion.
[63]The appellant has not demonstrated that the decision in Kaur was in error. Although the appellant submitted the decision was wrong, there was a paucity of explanation as to why that was so and nothing was advanced to support it, let alone to demonstrate the decision was “plainly wrong”.
[64]As Mr McGlade for the Minister accurately submitted, the appellant’s submissions involved an attempt to read words into cl 820.211(2)(d). Whilst that may be permissible if certain conditions exist, none were identified in the present matter. In this respect the observations of Flick J in JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 at 310-311 [52] are apposite:
[52]Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth), s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Federal Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim (2001) 112 FCR 589 at [7] per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re News Corporation Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.
[65]Despite the effect of the appellant’s submissions being an attempt to introduce words into the regulation, no submission was advanced which might justify that course in the present case.
[66]The result is that this first ground fails. There was no obligation on the Tribunal to take into account as a mandatory consideration, in ascertaining whether “compelling reasons” existed, the interests of the appellant’s child — let alone make the interests of that child a primary consideration.”
In the earlier authority of Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235, Dowsett, Pagone and Burley JJ, at [20] – [28], said as follows:
“[20]The appellants contend that the purpose of subparagraph (4) is to protect against the potentially capricious operation of (1) and that by the Executive ratifying the Convention, Australia has given a solemn undertaking to the world at large that it will “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”, citing Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 301 (Toohey J) and at 285, 287 (Mason CJ and Deane J). They further contend that the Tribunal correctly satisfied itself that compliance with the Convention constituted compelling circumstances that affect the interests of Australia within PIC4020(4)(a). As a consequence, the appellants contend that the Tribunal was obliged to take into account the best interests of Jazzveer in accordance with the Convention, and in particular by considering what is best for his health, social, linguistic and educational development, his identity, culture and citizenship prospects, and weigh these factors in the balance against other factors. In failing to take these steps, the appellants contend that the Tribunal fell into jurisdictional error.
[21] We reject these submissions for the following reasons.
[22]First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice ; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam[2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration & Multicultural and Indigenous Affairs[2004] FCA 875 (Le) at [59]; AB v Minister for Immigration & Citizenship[2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
[23]In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
[59]There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions — Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam(2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘ … established doctrine’ that obligations under international treaties ‘ … are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law — Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v Commonwealth (1945) 70 CLR 60 at 68–69, 77, and 80–81; Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs & Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.
[24]Secondly, the fact that the Tribunal chose to respond to the appellants’ submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning Jazzveer provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration; Snedden at [152].
[25]Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration & Citizenship at [27]:
[27]Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government & Ethnic Affairs (1988) 20 FCR 65 at 77–78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
[26]Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration & Multicultural and Indigenous Affairs[2005] FCA 211; (2005) 143 FCR 204 at [32]–[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
[27]Accordingly, in our view the Tribunal did not fall into error on the basis asserted in grounds 1(i) — (vi) of the Notice of Appeal, and the FCCA did not fall into error in concluding that the application should be dismissed.
[28]In ground 1(vii) the appellants contend that if the Convention was not required to be applied, then the Tribunal failed to afford procedural fairness to them by failing to give notice that it proposed to make a decision which did not accord with the principle that the best interests of the children would be a primary consideration. However, it is apparent that it was the appellants, by their legal representatives, who themselves prosecuted the applicability of the Convention, and the appellants who made submissions on the subject. There can hardly be an absence of procedural fairness in those circumstances. Furthermore, at [27] the Tribunal noted that it had indicated to the appellants that in its view their circumstances were excluded from consideration under PIC4020. In any event we have found that there was no obligation arising under the Convention. There is no lack of procedural fairness in these circumstances. Accordingly, this ground is not made out.
At [24] – [26] inclusive, the Tribunal considered the effect of the applicant’s return to Egypt, having regard to his living circumstances in Australia, as follows:
[24]With regard to the claims that the sponsor has a psychological condition because of her divorce from her previous partner and the applicant provides her with support. The Tribunal accepts that the sponsor has a psychological condition. It is also cognisant that the applicant departing Australia may provide the sponsor with some psychological challenges. However, on the evidence the sponsor has a large supportive family in Australia who continually offer assistance to the sponsor and the applicant. The Tribunal encourages the sponsor to seek assistance from her health professionals and family during any time of psychological stress and any temporary separation from the applicant. The Tribunal is not satisfied that these circumstances constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.
[25]About the claims that the parties built a life together in Australia. The applicant stated that he has not been employed since 2009-2010 and his parents supported him. The applicant told the Tribunal that on 24 August 2017, the sponsor gave birth to the parties’ daughter. He said that his departure from Australia would prevent him from playing an active role in the children’s lives and it may cause them psychological trauma. He felt that his departure from Australia would prevent him support the sponsor and the children and he would miss the children grow. The sponsor told the Tribunal that life with a young child is difficult. She stated that she has two other children who consider the applicant to be their father and he shares responsibility for them. The information before the Tribunal is that the sponsor with the assistance of Government benefits supported herself and her children, for many years prior to the parties’ relationship. Other information is that the children’s biological father remained in Lebanon and left the responsibility of the children to the sponsor. At the Tribunal hearing the applicant stated that the parties have a sound relationship with the sponsor’s parents and her large family in Australia. He said that the sponsor’s parents visited his parents in Egypt. He told the Tribunal that the sponsor’s family assisted the parties and continues to help them. Other information is that the sponsor continues to receive Government benefits for the three children. The Tribunal accepts that the applicant is listed as step-father to the sponsor’s children. It also accepts that the parties have a daughter together. The Tribunal encourages the sponsor to seek the assistance of her health professionals for herself and her family during any temporary separation from the applicant. During any separation the parties may have, the Tribunal encourages the parties and their children to communicate through the many IT facilities and to continue to support each other. The Tribunal is of the view that the parties and children can continue to offer each other support and companionship, even if separated, alleviating any psychological trauma for the children and resume the building of their family when reunited. The Tribunal is not satisfied that these circumstances constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.
[26]The applicant’s migration agent drew the Tribunal’s attention to the interest of the child and the Department’s policy about the Partner relationships. He said that the best interest for the child is that she be with the sponsor and the applicant. While the Tribunal is not bound by Departmental policy, it has considered these matters against the claims put forward by the applicant and findings against those claims are recorded in this decision record. Even after considering the evidence about the applicant and the support he provides the sponsor, his child and step-children and does not consider it forceful enough that it constitute ‘compelling reasons’ for not applying the Schedule 3 criteria. The Tribunal is of the view that the best interest of the parties’ child, in this case, is that the applicant resolve his immigration status. Currently, the applicant does not satisfy the Schedule 3 criteria because he did not hold a substantive visa within the relevant timeframe and the Tribunal is not satisfied that the parties’ circumstances constitute ‘compelling reasons for not applying the Schedule 3 criteria.”
The Court finds that the Tribunal did not err in the way in which it approached the question as to whether or not it had properly considered the interests of the applicant’s child or step-children. In that respect, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The Tribunal intellectually engaged with the claims made on behalf of the applicant but rejected them. The Tribunal was entitled to make the findings that it did. To the extent that the applicant disagrees with the decision of the Tribunal, he seeks an impermissible merits review.
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 25 March 2022
Gageler and Keane JJ
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