Chhetri v Minister for Immigration
[2019] FCCA 298
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHHETRI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 298 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal (AAT) decision – whether application infected by jurisdictional error as it is informed by a policy alleged to be ultra vires the Migration Act and Regulations – whether jurisdictional error present as applicant alleges that the relevant criteria were misapplied – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48, 476 |
| Cases cited: Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 |
| Applicant: | ANIL SINGH CHHETRI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1245 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Appearing for the Applicant: | Mr C Levingston |
| Counsel for the Respondents: Solicitors for the Respondents | Mr G Johnson Mills Oakley Lawyers |
ORDERS
The application made on 24 April 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1245 of 2017
| ANIL SINGH CHHETRI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 24 April 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 March 2017, which affirmed the decision of the Minister’s delegate to refuse the grant of a partner visa to the applicant, Mr Anil Singh Chhetri (“the applicant”).
The evidence before the Court is contained in a bundle of relevant documents (the Court Book) tendered by the Minister (“CB” – “RE1”).
Background
The applicant first arrived in Australia in July 1999 as the holder of a student visa. He applied for a protection visa on 18 October 2002. This was the subject of an unsuccessful review by the then Refugee Review Tribunal on 22 April 2003. The applicant’s last substantive visa had ceased on 9 October 2002. He remained in Australia without authority until he was issued a bridging visa at the time of applying for the partner visa.
The subclass of visa for which the applicant applied was a subclass 820 visa. I note that, relevant for current purposes, the applicant was required to meet the requirements of cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because he was not the holder of a substantive visa at the relevant time of making his application for the 820 visa:
“820.21--Criteria to be satisfied at time of application
820.211
(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.”
The delegate refused the application on 6 May 2016 (CB 323 – CB 334). The applicant sought review by the Tribunal which, as set out above, affirmed the delegate’s decision.
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. The application is infected by jurisdictional error in that it is informed by a policy which is ultra vires the Migration Act and regulations.
Particulars
(a) The policy underpinning the schedule 3 requirement incorporated in the regulation is ultra vires the Migration Act 1958, in particular the facilitative provisions of section 48 amended in September of 2009 and so fetters the consideration of ‘compelling” circumstances so as to traverse the facilitative nature of both section 48 and criterion 820.211 of the migration regulations.
2. The application is infected by jurisdictional error in that the Second Respondent has misapplied the schedule 3 requirement embedded in criterion 820.211 by failing to give all of the Applicants relevant facts and circumstances a proper and genuine consideration on its merits.
Particulars
(a) The genuine and proper consideration of the personal circumstances of the Applicant and of his Sponsor constitute “compelling” circumstances within the “concession’ embedded in schedule 3 at criterion 820.211 of the migration regulations.”
[Errors in the original]
[Ground two was ultimately not pressed].
At the hearing, the applicant was represented by his solicitor. The Minister was represented by counsel.
The Regulations
For current purposes, the Schedule 3 criteria referred to at cl.820.211(2)(d) were in the following terms:
“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.
3002
The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).3003
If:(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b) on 31 August 1994, the applicant was either:
(i) an illegal entrant; or
(ii) the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with the conditions that apply or applied to:
(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii) any subsequent bridging visa; and
(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a) - - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) - - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.”
The Applicant’s Argument
The complaint in ground one is that the Tribunal’s decision was “informed” by a “policy”, which was “ultra vires” the Act, and the Regulations.
The applicant acknowledged that at [44] (at CB 474) of its decision record, the Tribunal expressly stated that it had not had regard to “policy”:
“44. The tribunal is mindful it must consider whether there are compelling reasons for not applying Schedule 3. The tribunal accepts that consideration is unfettered. The tribunal has not had regard to the policy in that regard.”
The applicant now asks that the Court draw an inference that notwithstanding this, the Tribunal did have regard to “policy”. To make good that proposition, the applicant referred to various “elements” in the Tribunal’s reasoning, which he says, in effect, “mirror” various parts of the Minister’s Department’s Procedures Advice Manual. (“PAM 3”).
It is convenient to set out first what the applicant says was the “relevant policy” (as expressed in PAM 3) at the relevant time (see the applicant’s written submissions to the Court at [36]):
“36. At the time of the Tribunal’s decision (31 March 2017), the relevant PAM3 policy in place in relation to cl. 820.211(2)(d) was follows:
‘8.7 Other unlawful non-citizens
‘Clause 820.211(2)(d)(ii), the ‘compelling reasons’ provision, allows certain persons who are unlawful in Australia to regularise their status if compelling reasons exist.
The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. *[1] As such, officers should consider circumstances on a case by case basis. *[2]
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
·fail to comply with their visa conditions or
·deliberately manipulate their circumstances to give rise to compelling reasons or
·can leave Australia and apply for a Partner visa outside Australia. *[3]
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, *[3] it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control - such as severe illness or incapacity - the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
·any history of non-compliance by the applicant
·the length of time the applicant has been unlawful
·the reasons why the applicant became unlawful
·the reasons why the applicant did not seek to regularise their status sooner
·what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).’” *[4]
[Footnotes from original omitted]
[Emphasis as in applicant’s written submissions]
[Footnotes Added:
*[1] With reference to [47] below;
*[2] With reference to [50] below;
*[3] With reference to [44] and [49] below
*[4] With reference to [31] below].
The applicant’s argument was that this policy was “ultra vires” the Act, and the Regulations, in the following way.
First, s.48 “permits,” relevantly, the making of a spouse visa application, on shore, by a person who had previously applied for, and been refused, a visa. Section 48(1) is in the following terms:
“Section 48
Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen's behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.”Second, the focus of the argument was on the term “compelling reasons”, as referred to in 3003(d) of Schedule 3 to the Regulations, and with reference to clause 820.211(2)(d)(ii) (“compelling reasons”).
Ultimately before the Court, when asked to identify, with reference to the Tribunal’s decision, where, and how, the Tribunal impermissibly applied policy, attention was directed to that part of the policy, as set out above at [12] of this judgment.
The applicant submitted that the Tribunal’s decision record at [40] – [46], reveals that the Tribunal “unconscious[ly]” considered issues that “underpinned” the policy which was ultra vires the Act, and the Regulations.
At [40] – [46] the Tribunal stated:
“40. The tribunal accepts if they had to separate that this would cause financial and emotional hardship to the applicant, sponsor and their child. However, the tribunal does not consider that hardship amounts to compelling reasons. The couple could choose to visit Nepal for a period while visa application is processed. They both have family there and would give an opportunity for family to see the baby. There is no reason they could not find work in Nepal. The sponsor has worked as a doctor there in the past and the applicant has work experience and skills gained in Australia that would allow him to find work in the hospitality industry.
Financial hardship
41. The tribunal has considered the claims of financial hardship. The tribunal accept that they will have difficulty meeting mortgage payments on the sponsor’s part time work, but they planned to see how that went. The tribunal accepts they would also experience even further financial hardship if the sponsor was not working in Australia as the incomes are not comparable in Nepal. The tribunal does not consider having to make adjustments to financial or accommodation arrangements for a temporary period amounts to compelling reasons. Further, the tribunal notes the applicant’s evidence that they had $80,000 in shares. The tribunal considers both the applicant and sponsor could find work in Nepal as they are from Nepal, have skills and have family. The tribunal considers the financial hardship can be mitigated with employment in Nepal and the $80,000 in share assets. The tribunal does not accept that having to make these adjustments for a temporary period amounts to compelling reasons. Alternatively, the sponsor could remain working as a doctor in Australia. While she would have the added cost of child care, this is not uncommon for many working single mothers. The tribunal does not accept the added cost of childcare for the sponsor, working as a doctor, and applicant amounts to compelling reasons not to apply Schedule 3. The tribunal does not accept that their financial hardship circumstances amounts to compelling reasons.
The applicant
42. The tribunal accepts the applicant would prefer not to be separated from his wife and child, particularly at this time and there would be emotional hardship. However, as discussed above, the tribunal considers a temporary separation does not amount to a compelling reason not to apply Schedule 3. They could keep in touch via phone, Viber and Skype. Alternatively they could return to Nepal together as a family unit or visit as they are both from Nepal and have family there.
43. The tribunal also considers that the applicant has been unlawful for such a long period (13 years) and did not try to regularise his status weighs against him. The applicant claimed he feared returning to Nepal due to the Maoists and his family had lost money and had to borrow money. He was scared and paranoid. However, his protection claims were not accepted and his application was refused and affirmed by the RRT in 2003. He continued to remain unlawful. The agent submitted that the PAM policy regarding unlawful non-citizens is ultra vires as it restricts the exercise of the discretion and facilitative intent of s48.
44. The tribunal is mindful it must consider whether there are compelling reasons for not applying Schedule 3. The tribunal accepts that consideration is unfettered. The tribunal has not had regard to the policy in that regard.
45. The tribunal has considered the reasons put forward as compelling. The tribunal does not consider in this case that the existence of a child amounts to compelling reasons. The applicant and sponsor are both from Nepal and they could visit Nepal together as a family, while the applicant lodges an offshore application. They both have their own family in Nepal too. Further, the tribunal considers that the applicant and sponsor were both aware that the applicant had been unlawful, was without a visa and did nothing about it, weighs against the applicant. The applicant and sponsor have made decisions about their lives, finances, accommodation in the full knowledge that the applicant had been without a visa in Australia for many years and that adverse consequences may follow. The applicant however, did not regularise his status or return to Nepal to apply offshore. Their circumstances do not evoke sympathy or compelling reasons not to apply Schedule 3 criteria.
46. Even with a newborn, the sponsor being a doctor and hardship the family may suffer if separated or they return to Nepal, the tribunal does not accept there are compelling reasons not to apply Schedule 3. The tribunal has also considered their circumstances and reasons cumulatively, but it is not satisfied these are compelling reasons not to apply Schedule 3 criteria.”
The applicant also took issue, albeit in the subsequently abandoned ground two, with the Tribunal’s stated reliance on Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 (“Babicci”), and MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (“MZYPZ”). This is still relevant to understanding his argument in relation to ground one.
At [24] of its decision record the Tribunal stated:
“24. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.”
The applicant argued that the “relevant authority” as to the circumstances that constitute “compelling reasons” is to be found in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (“Waensila”), per Griffiths J at [56]:
“56. The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or “compelling reasons” post-date the time of application.”
In short, therefore, the argument contained three elements. One, s.48 was a facilitative provision. That is, it facilitated the making of a visa application on-shore. Two, the “policy”, as set out in PAM 3, was “restrictive”. For example, it focused on reasons why the visa should not be granted, and on an applicant’s migration history. Three, the Tribunal “unconscious[ly]” applied this policy to its consideration. [I note in his submissions before the Court that the Minister used the term “subconscious”. However, the applicant consistently referred to “unconscious”.]
The Minister did not dispute that the application of those parts of a policy which were “ultra vires” to the Act, and Regulations, could reveal jurisdictional error. However, the Minister’s position was that this was not such a case.
Consideration
For the following reasons the applicant’s ground is not made out.
First, the applicant asks the Court to draw from the Tribunal’s decision record an adverse inference that the Tribunal “applied” policy which was ultra vires the Regulations and the Act. This is sought in the face of the Tribunal’s express statement that it did not apply the policy.
Such a statement of itself cannot be said to be determinative. But equally, it cannot be ignored. The decision record is the expression by the Tribunal member of the reasons for, relevant to this case, affirming the delegate’s decision. A statement that the policy was not applied, is, in context, powerful evidence, albeit not conclusive, that that is the case.
Second, to overcome this “difficulty”, the applicant submitted that the Tribunal “unconscious[ly]” imported the impugned policy into its reasoning, notwithstanding its stated expression that it did not do so.
However, to make good that proposition, the applicant asks the Court to find similarities between what is stated in the policy, and what the Tribunal set out in its decision record.
It would not be surprising that some similarities might exist between what is set out in the PAM 3, and what the Tribunal considered as arising from the circumstances before it.
For example, although “compelling reasons” is not defined in the Regulations, or for that matter the Act, in determining what are compelling reasons, the Tribunal must, at least initially (given, as the Tribunal correctly noted, that its consideration of compelling reasons is unfettered (at [44])), have regard to what the applicant himself put forward as compelling reasons.
The Tribunal addressed these (see [45] – [46] of the decision record). To the extent therefore that the applicant relies, in part, on these parts of the Tribunal’s reasoning, it is clear that whatever may, or may not, be in the PAM 3, the Tribunal’s consideration of the matters set out at [45] – [46] (at CB 474 – CB 475) were as a result of the nature of the applicant’s claims. Claims which the Tribunal was obliged to consider.
Third, in response to the applicant’s submissions, the Minister pointed out that the express disavowal of the relevance of the policy to its consideration, (at [44]) was in response to the very argument concerning the policy being “ultra vires”, advanced by the applicant’s migration agent before the Tribunal. I note that that agent is also the solicitor representing the applicant now with a similar argument. At [43] the Tribunal stated:
“43. …The agent submitted that the PAM policy regarding unlawful non-citizens is ultra vires as it restricts the exercise of the discretion and facilitative intent of s48.”
The Tribunal, therefore, was alert to this argument, and took steps to ensure that its consideration was not fettered, or directed by the policy.
Fourth, as set out above, the applicant relied on what can be fairly described as the “facilitative” character of s.48 of the Act. In a sense, that description may be accepted, given that it permits non-citizens in the migration zone who do not hold a substantive visa to apply for, relevantly, a partner visa, rather than having to make such an application offshore.
The difficulty for the applicant’s argument, however, is that by its very terms, s.48 is “limited”, or more correctly, “subject to the regulations”. Not to some ill-defined, and general, facilitation of such visa applications.
This then directs attention to the Regulations themselves as they relate to the application for a subclass 820 visa. So in circumstances, as in the current case, where an applicant does not hold a substantive visa at the relevant time of application, the Regulations contemplate two relevant elements.
One, the applicant must satisfy Schedule 3 criteria 3001, 3003, and 3004. Two, that is not necessary in circumstances where the relevant decision-maker is satisfied that there are “compelling reasons” for not applying those criteria.
In that light, therefore, even if s.48 were to be described as “facilitative”, as the applicant submits, that “facilitation” is “subject” to the Regulations. Those relevant Regulations can be described as giving some shape to the consideration. Although, as the Tribunal recognised the “consideration is unfettered” (see [44] of the decision record).
Fifth, the applicant did not satisfactorily explain before the Court how the “facilitative” character of s.48 of the Act meant that the clear terms of the relevant Regulations could be ignored. In any event, at best his argument was that the policy was ultra vires the Regulations and Act, not that the Regulations were ultra vires the Act.
Sixth, also before the Court, the applicant did not satisfactorily explain why the Tribunal’s reference to Babicci and MZYPZ (both authorities of the Federal Court) led the Tribunal into jurisdictional error (see [20] above for what the Tribunal stated at [24] of its decision record).
The applicant relied on Waensila to argue that the purpose of the power to “waive” the Schedule 3 criteria was to provide the Minister (or the relevant decision maker) with “flexibility” in addressing compelling circumstances. Given what was said in Waensila, that must be accepted. However, even in that light, the applicant did not satisfactorily explain how the Tribunal’s reasoning transgressed this objective, with specific reference to the Tribunal’s actual reasoning in this case.
Seventh, as set out above, the applicant’s argument required attention to be directed to the Tribunal’s consideration at [42] – [46]. As also set out above, [44] – [46] do not assist the applicant.
I note for the sake of completeness that at [40] – [41], the Tribunal addressed matters of emotional and financial hardship, which do not appear to be the subject of “policy”, specifically relied on by the applicant now, and as derived from the extract of PAM 3 as set out at [12] above. Although the matters considered by the Tribunal at [40] – [41] deal with aspects of the relationship and financial matters, which may in part relate to the references to “hardship” in the policy extract, these did not appear to be the particular focus of the applicant’s submissions before the Court. In any event, these elements (financial matters, aspects of the relationship, and their child) are addressed at [45] – [46].
This leaves [42] – [43]. It is to be noted that given that the Tribunal expressly stated that it did not have regard to the policy, what is left of the applicant’s arguments in relation to [42] – [43] are the matters addressed in those paragraphs, and the coincidence of those matters to what is in the PAM 3.
The “policy” (as extracted from PAM 3 in the applicant’s submissions) does refer to a failure to comply with visa conditions, “deliberate” manipulation by an applicant of their circumstances so as to give rise to compelling reasons, and whether the applicant can leave Australia and apply for the partner visa offshore.
There are a number of features of the entire policy, as extracted now by the applicant, and the parts to which he made specific reference in his submissions, that are relevant to the current consideration.
One, there is no express statement in the policy (PAM 3), as extracted by the applicant, to the effect of seeking to explain the meaning and specific application of the Regulations.
Those parts that refer to, for example, clause 820.211(2)(d), are descriptive. Further, the statement (in the policy) that the Regulations do not prescribe the circumstances that need to exist such as to establish compelling reasons, is both unremarkable, and importantly, is counter to the applicant’s implicit argument that somehow the policy was invalid, and was unconsciously applied by the Tribunal at the cost of not having regard to the Regulations.
In that light, I agree with the Minister that the “policy” (which, after all, is contained in the “Procedures Advice Manual” [emphasis added]) does no more than provide examples of what may be considered as compelling reasons.
Two, those parts of the “policy” dealing with the “intent” of the waiver provisions (and the three dot points that follow, see [12] above) need to be understood by what immediately precedes it. Namely, that the “policy” makes clear, expressly, that the Regulations do not prescribe, or direct consideration of the circumstances relevant to, compelling reasons.
Three, the reference in the policy to: “…officers should consider circumstances on a case by case basis” makes clear that contrary to the applicant’s assertions now, that what the policy says is relevant, is said to arise from the circumstances presented, in each case, and when viewed in light of the relevant authorities. (Noting that Waensila, with respect, relevantly says nothing to contradict what the Tribunal drew from the other authorities, rather, with respect, it provides an expanded temporal focus).
In short, the policy is reflective of the intentions of the Regulations, and provides guidance by way of examples as to how to approach the relevant consideration. The use of the word “examples”, when coupled with the express statement of the “unfettered” nature of the matters in the Regulations, and the statement that each case is to be determined with reference to its own circumstances, makes clear that the PAM 3, in this regard, does not seek to fetter the Tribunal’s exercise of its consideration, or to divert attention away from the Regulations.
Those circumstances certainly included such factors as the existence of a child, the finances of the applicant’s family, and aspects of the relationship of the applicant with the visa sponsor. However, the circumstances (albeit, not pressed by the applicant as compelling reasons), also raised questions about whether the “compelling reasons” he raised outweighed other factors in his circumstances, that the Tribunal considered, and weighed against him, given the statutory and regulatory “intention”, including the “flexibility” of applying for the visa onshore.
That the Tribunal weighed these factors in a particular way does not, on any fair reading of its decision record, reveal that it unconsciously applied the policy, rather than conducting a reasonable evaluation of the evidence before it.
Conclusion
In all, therefore, I do not agree with the applicant’s argument. The remaining sole ground of the application is not made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 February 2019
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