Chiriac v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 842

Federal Circuit and Family Court of Australia
(DIVISION 2)
Chiriac v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 842

File number(s): MLG 2371 of 2017

Judgment of: JUDGE LUCEV

Date of judgment: 14 October 2022

Catchwords: MIGRATION – Application for judicial review – citizen of Romania – overstay of Transit visa – Partner (Temporary) (Class UK) visa – whether failure to consider the claim or part thereof – whether findings of no compelling reasons based on irrationality, illogicality or legal unreasonableness – whether wrong question or irrelevant consideration taken into account – whether possible alternative finding concerning amelioration of hardship had logical or probative basis or whether failure to give proper consideration to claim – whether findings concerning sponsor’s possible relocation to Sydney failed to comply with s 360 of Migration Act 1958 (Cth) or was legally unreasonable – whether wrong question asked or irrelevant consideration taken into account in determination of whether compelling reasons existed – whether jurisdictional error – writs issued

Legislation:
Migration Act 1958 (Cth) ss 65, 360, 474, 476

Migration Regulations 1994 (Cth) Sch 2 cl 820.211, Sch 3 cll 3001, 3003, 3004

Cases cited:
AEG16 v Minister for Immigration and Border Protection [2019] FCA 585

AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALD 630

Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 119

CMI17 v Minister for Home Affairs [2019] FCA 1193

CXS18 v Minister for Home Affairs [2020] FCAFC 18

Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681

ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228

GEQ18 v Minister for Home Affairs [2019] FCCA 3338

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Aboriginal Affairs v Peko Wallsend (1986) 164 CLR 24

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569; (2019) 367 ALR 49; (2019) 164 ALD 103

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1

SZGRK v Minister for Immigration and Citizenship [2010] FCA 153

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Material: FT Wood, Current English Usage. A Concise Dictionary (London: MacMillan & Co Ltd, 1963)
Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017)
The Concise Oxford Dictionary (Seventh Edition) (Oxford: Clarendon Press, 1982)

Division: Division 2 General Federal Law

Number of paragraphs: 71

Date of last submission/s: 23 November 2021

Date of hearing: 23 November 2021

Place: Perth

Counsel for the Applicant: Mr M Kenneally via CISCO Webex

Solicitor for the Applicant: Lawson Bayly

Counsel for the First Respondent: Ms K Chan via CISCO Webex

Solicitor for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 2371 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MARIAN DANIEL CHIRIAC

Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE LUCEV

DATE OF ORDER:

14 OCTOBER 2022

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 10 October 2017.
3.A writ of mandamus issue requiring the second respondent to re-determine its review of the decision of the delegate of the first respondent made on 9 February 2017, and determine it according to law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction

On 3 November 2017 Mr Marian Daniel Chiriac (“Mr Chiriac”) filed in the Melbourne Registry of this Court (then styled the Federal Circuit Court of Australia) an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) affirming a decision of the delegate (“Delegate” and “Delegate’s Decision” respectively) of the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs to refuse Mr Chiriac a Partner (Temporary) (Class UK) visa (“Partner Visa”) under s 65 of the Migration Act.
An amended Judicial Review Application (“Amended Judicial Review Application”) was filed on 26 October 2021 containing six amended grounds, which are set out at [13] Amended Ground 1, [33] (Amended Ground 2), [42] (Amended Ground 3), [46] Amended Ground 4, [53] Amended Ground 5 and [63] (Amended Ground 6) below.
Materials
The following materials are before the Court:
(a)the Court Book (“CB”) which was marked as Exhibit 1;
(b)the affidavit of Lawson John Bayly affirmed 26 October 2021 (“Bayly Affidavit”), annexed to which is a copy of the Tribunal hearing transcript (“Tribunal Hearing Transcript”); and
(c)the transcript of the hearing in this Court on 23 November 2021 (“Transcript”).
Background prior to the Tribunal Decision
The background to the matter prior to the Tribunal Decision is as follows:
(a)Mr Chiriac is a citizen of Romania aged 37 at the time of the Tribunal Decision: CB 2 and 271 at [18];
(b)in late May 2015 Mr Chiriac arrived in Australia on a three-day TX 771 Transit visa (“Transit Visa”) expiring on 27 May 2015: CB 36;
(c)on 19 December 2015 Mr Chiriac married an Australian citizen aged 58 at the time of the Tribunal Decision (“Sponsor”): CB 5 and 272 at [26], in an Australian marriage ceremony: CB 272 at [27];
(d)in total, following the expiry of his Transit Visa, Mr Chiriac remained in Australia unlawfully for approximately eight months until he applied for the Partner Visa on 25 January 2016: CB 1-81;
(e)on 4 March 2016 a Delegate of the Minister invited Mr Chiriac to comment on information on his Partner Visa application (“Invitation”): CB 94-98;
(f)on 23 March 2016 Mr Chiriac responded to the Invitation: CB 100-111;
(g)on 9 February 2017 the Delegate’s Decision was to refuse the Partner Visa application: CB 113-121;
(h)on 1 March 2017 Mr Chiriac applied to the Tribunal for review of the Delegate’s Decision: CB 145;
(i)on 11 July 2017 the Tribunal invited Mr Chiriac to attend a hearing (“Tribunal Hearing”): CB 191; and
(j)on 29 August 2017 the Tribunal Hearing took place: CB 258. Mr Chiriac attended together with the Sponsor, the Sponsor’s daughter (“Daughter”), the Sponsor’s sister, his lawyer and his employer: CB 258.
Tribunal Decision
On 10 October 2017 the Tribunal Decision affirming the Delegate’s Decision was made: CB 263-279.
In the Tribunal Decision the Tribunal:
(a)had regard to the relevant criteria under cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) and Sch 3 to the Migration Regulations, namely cll 3001, 3003 and 3004, and having found that Mr Chiriac did not meet the cl 3001 criteria because his application for the Partner Visa was not lodged within 28 days from the date on which his last substantive visa ceased, found that Mr Chiriac did not meet the relevant criteria under of Sch 3 to the Migration Regulations and that it was therefore required to consider the “compelling reasons” criteria in cl 820.211(2)(d) of Sch 2 to the Migration Regulations: CB 269-270 at [9]-[11], and set out the relevant test with respect to the application of that criteria: CB 270 at [12];
(b)found that Mr Chiriac’s explanation for why he overstayed his Transit Visa “strains credulity”: CB 270 at [14]. Mr Chiriac’s Transit Visa only permitted him to travel through Australia for three days and to then proceed on to another destination, which was New Zealand;
(c)expressed concerns that Mr Chiriac may not have intended to go on to New Zealand at all (the purported reason for his visit to New Zealand was to view cathedrals there and possibly to make friends with somebody) and that “in fact his aim had been to stay in Australia and maintain ongoing residence here by finding work and establishing himself within the community”: CB 270 at [14];
(d)considered the reasons Mr Chiriac put forward for initially staying in Australia, including his claims he could not find accommodation for his three day stay in Australia, and his claims to have given $2000 to an unidentified man from the Romanian community in Dandenong, whom he met randomly in a Dandenong plaza, and who had told Mr Chiriac he would help him extend his visa in Australia, and found the reasons given to be “implausible”: CB 270-271 at [15]-[17]
(e)even allowing for inexperience in travel, considered that Mr Chiriac as a 37 year old man, would have ensured that prior to parting with $2,000 that he would have queried with the unidentified stranger about why he needed to pay upfront for migration assistance and he would have insisted that he be provided a receipt with contact details: CB 271 at [18];
(f)considered Mr Chiriac’s account “continued to be implausible”, particularly as it concerned:
(i)Mr Chiriac’s attempts to again meet the person to whom he had provided the $2000;
(ii)Mr Chiriac’s reasons for not going to the Department of Immigration (as it was known then) to report this person; and
(iii)Mr Chiriac’s further enquiries to identify and locate this person,
and it remained “unconvinced” by Mr Chiriac’s account of how he came to be unlawful in Australia: CB 271 at [19]-[22];
(g)found that Mr Chiriac had “manipulated his circumstances to give rise to what is being argued are compelling reasons” and considered it likely Mr Chiriac had always intended to stay in Australia, placing considerable weight on the fact that Mr Chiriac had chosen not to alert the Department as to his Transit Visa overstay and had “only emerged from the community to regularise his status when it suited him” to lodge the Partner Visa application: CB 271-272 at [24];
(h)considered the emotional support that the Sponsor claimed she required and that Mr Chiriac asserted he provided to the Sponsor, the Sponsor’s claim that “she would not be able to live without” Mr Chiriac during any period of his living offshore during visa processing: CB 272 at [26], but found that the circumstances Mr Chiriac and the Sponsor were in were not “unforeseen, compelling or harsh” given the Sponsor was aware of Mr Chiriac’s unlawful status when they married: CB 272 at [27]
(i)did not find that the parties might be committed to one another and did not wish to be separated as compelling reasons for waiving the Schedule 3 criteria, as it would be difficult to see how a loving couple would voluntarily wish to be separated for any period of time: CB 297 at [28];
(j)noted the Sponsor’s alleged depression and anxiety and an associated medical report relating to this and placed some weight on the medical report, but noted that the Sponsor had not seen a psychologist in relation to her depression and anxiety, nor was it clear that she was on medication for these conditions: CB 273 at [32]-[33], and was not satisfied that it was “compelling as evidence of the Sponsor’s mental health condition being untreatable”: CB 273-274 at [34];
(k)determined that the Sponsor was “not isolated and has people she can turn to” were Mr Chiriac to go offshore whilst his Partner Visa was being processed: CB 274 at [36];
(l)found that “with support from a counsellor and appropriate medication” there was “little evidence” the Sponsor’s depression and anxiety “could not be managed” in Mr Chiriac’s absence offshore: CB 274 at [38];
(m)noted that the Sponsor’s “circumstances are complicated” because the Daughter lived in Sydney with a six month old child (“Child”) and was married to a man (“Husband”) with depression and anxiety and “a problem with alcohol”, as a consequence of which the Sponsor had been required to go to Sydney (from Melbourne) on several occasions because the Husband was not necessarily able to look after the Child properly if he had been drinking: CB 274 at [39];
(n)noted that Mr Chiriac’s income from work in the restoration and painting industry “provided a measure of income support” to the Sponsor during unscheduled visits by her to Sydney to visit the Daughter: CB 274 at [40]-[42];
(o)observed that the fact that the Sponsor was able to spend time in Sydney, demonstrated that she could spend time away from Mr Chiriac: CB 275 at [43];
(p)considered that the Daughter and the Husband “could reasonably avail themselves of community services and medical treatment” to deal with the Husband’s problems, and that as such the Sponsor’s family circumstances did not constitute compelling reasons for waiving the Sch 3 criteria: CB 275 at [44];
(q)considered the Sponsor’s claims about the financial support that Mr Chiriac provided, finding it would not be unreasonable for her to make allowances to “suit her financial situation until Mr Chiriac returns to Australia”: CB 275 at [46];
(r)considered that any delay in plans for purchasing a home did not constitute compelling reasons because purchasing a property and pooling finances to do so “is problematic for many couples”: CB 275 at [47];
(s)found, having assessed the Sponsor’s circumstances individually and cumulatively, it was not satisfied that they constituted compelling circumstances for waiving the Sch 3 criteria “as the [Sponsor’s] circumstances are not so unusual or challenging that they cannot be managed without assistance from the medical profession and others”: CB 275 at [48];
(t)placed no weight on Mr Chiriac having incurred debts (by, for example, purchasing a car) in circumstances where for a considerable period of his stay in Australia he did not have the right to reside or work in Australia: CB 276 at [49];
(u)had regard to the nature and length of the relationship between Mr Chiriac and the Sponsor, including the non-marital period of the relationship, but also had regard to the fact that “but for” Mr Chiriac’s “breach of Australia’s immigration laws, he would not have been enabled to enter into a longstanding relationship”: CB 276 at [53];
(v)considered evidence from Mr Chiriac’s employer about Mr Chiriac’s value to the business but found he could “take leave without pay and be re-employed on return to Australia”, whilst also noting that Mr Chiriac had “only been able to work in his chosen field in Australia” by virtue of his breaching the scope of his Transit Visas: CB 276 at [50]; and
(w)after considering each of the matters raised, individually and cumulatively, concluded it was not satisfied there were “compelling reasons” (emphasis in Tribunal Decision) for waiving the Sch 3 criteria in granting Mr Chiriac the Partner Visa: CB 276 at [54]-[55].
Amended Judicial Review Application
Litigation history and delays in the Melbourne Registry
Delays in the listing of judicial review of migration cases in the Melbourne Registry of this Court are well known and acknowledged. The Chief Judge of this Court observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court [where this matter was filed] has a large backlog”. The position was seemingly much the same in November 2019 when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “delays in the Melbourne Registry of this Court … would mean that it would be likely that the Application would not be heard … for some two to three years if it was transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy.
The litigation history of this matter is as follows:
(a)the Judicial Review Application was filed in the Melbourne Registry of this Court on 3 November 2017;
(b)a Response was filed by the Minister on 16 November 2017;
(c)on 10 July 2018 a Registrar of this Court in the Melbourne Registry made orders (“Registrar’s Orders”), including the following:
4.        The applicant file and serve the following 28 days before the final hearing date:
(a)any amended application with proper particulars of the grounds of the application;
(b)       supplementary court book, if any; and
(c)       written submissions.
5. The first respondent file and serve written submissions 14 days before the final hearing date.
5. The application be listed for final hearing before Judge Wilson on a date to be advised by a Court.
(d)there is no record on the Court file of the matter ever being listed before Judge Wilson who was appointed to the then Family Court of Australia in March 2019;
(e)more than three years after the Registrar’s Orders the matter was reallocated to the Perth Registry of this Court, and on 19 August 2021 a Notice of Listing listing the matter for hearing on 23 November 2021 before the Court as presently constituted was sent to the parties;
(f)on 26 October 2021 Mr Chiriac filed the Amended Judicial Review Application; and
(g)the matter was heard on 23 November 2021 before the Court as presently constituted.
Jurisdictional error required

This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Legal unreasonableness may also give rise to jurisdictional error: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
To constitute jurisdictional error, any error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows (footnotes and citations omitted):
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Chiriac to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine Mr Chiriac’s Partner Visa claims: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Amended Ground 1
Amended Ground 1 of the Amended Judicial Review Application, unaltered, is as follows:
1.The Tribunal failed to complete its statutory task by failing to consider the applicant’s claim, or an integral part of the claim, or to give proper genuine or realistic consideration to the applicant’s claim that the sponsor and her daughter and grandson’s circumstances constituted “compelling reasons” within the meaning of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) to justify not applying the criteria in items 3001, 3003 or 3004 of Schedule 3 to the Regulations (the Schedule 3 criteria).
Particulars
a.The Tribunal’s statutory task was to determine if it was satisfied the circumstances raised by the applicant and material were “compelling reasons” justifying waiver of schedule 3 criteria.
b.The Tribunal was required to consider any clearly articulated argument based on established facts by the applicant as to why there were compelling reasons.
c.The applicant claimed that the sponsor needed to travel to Sydney to help her daughter care for her son, because the daughter’s husband regularly absconded due to mental health problems and alcohol addiction.
d.The applicant claimed that without his financial support the sponsor could not provide the care to her daughter and grandson.
e.The applicant claimed the sponsor and her daughter and grandson’s circumstances constituted a compelling reason.
f.The sponsor gave evidence at the Tribunal hearing that apart from attending alcoholics anonymous the daughter’s husband (husband) was reluctant to engage in treatment.
g.The Tribunal found the circumstances were not compelling because the husband should and could seek medical treatment to address his health issues (see Tribunal’s reasons, [42] and [44]).
h.The Tribunal failed to consider or give proper, genuine, and realistic consideration or constructively failed to consider the claim actually raised: that the husband would not engage in treatment that reduced his risk of relapse.
i.Further or alternatively the Tribunal failed to consider an integer of the claim, that the husband would not engage in treatment.
Mr Chiriac’s Submissions on Amended Ground 1
In relation to Amended Ground 1 Mr Chiriac submitted that:
(a)the Tribunal did not consider whether the Sponsor and the Daughter’s actual circumstances were compelling. Instead, the Tribunal focused its analysis on the Husband’s circumstances. The Tribunal made a normative judgment that the most appropriate and sustainable solution was for the Husband to seek treatment, and that he could do that. The Tribunal’s findings failed to address the claim actually raised, that he would not get support and Mr Chiriac’s absence would cause hardship to the Sponsor, the Daughter and the Child as a result; and
(b)put another way, an integral part of Mr Chiriac’s claim was that the Husband would not obtain medical treatment. The Tribunal was plainly aware of that fact, but in its actual consideration of the issue put it to one side, by finding that the Husband could and should change his behaviour. The substance of the claim, whether the Husband would not obtain treatment and the consequences of that, was not considered.
Minister’s Submissions on Amended Ground 1
In relation to Amended Ground 1 the Minister submitted that:
(a)the inference that the Tribunal has failed to consider an issue should not be drawn where the Tribunal has identified that issue: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ (“WAEE”); Minister for Home Affairs v Buadromo [2018] FCAFC 151 (“Buadromo”) at [46]-[49] per Besanko, Barker and Bromwich JJ. Here, at CB 300 at [42], the Tribunal expressly referred to the claim that the Husband “refuses to seek assistance for his difficulties”, directly contradicting the allegation that it “failed to address the claim actually raised, that he would not get support”;
(b)notwithstanding there was evidence that the Husband “refuses to seek assistance”, the Tribunal concluded that he “could reasonably avail [himself] of community services and medical treatment”: CB 275 at [44]. Read fairly and in context, it is clear the Tribunal implicitly reasoned that the Husband could and would seek services and treatment. Importantly, evidence of the Husband’s attendance at AA meetings and attendance at an “outpatient program” as well as “three hours per week of alcohol counselling”: CB 211, provided the evidentiary basis permitting the Tribunal reasonably to infer these matters. Evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 (“SGLB”) at [39]-[41] per Gummow and Hayne JJ;
(c)the Tribunal was not required to make more precise findings about what the Husband “would” do because that finding is subsumed in a finding of greater generality as to the Husband’s ability to recover and change: Buadromo at [46]-[49] per Besanko, Barker and Bromwich JJ, citing WAEE at [46]-[47] per French, Sackville and Hely JJ, that is, a finding that the Sponsor’s daughter’s husband “could and would reasonably avail [himself] of community services and medical treatment”: CB 275 at [44] (inserting the words “and would” into what was written in the Tribunal Decision). The Court ought not over-zealously scrutinise the omission of the word “would” in search of error;
(d)further, in considering whether the mere omission of the word “would” should justify an inference that the Tribunal failed to consider the asserted claim: ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228 (“ETA067”) at [24] per Bell, Keane and Gordon JJ, it is relevant to take into account the prominence which was given by the person or their representative to the particular claim, when viewed in the context of the overall case: Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 119 at [46] per Griffiths J. Here, the claim was actually put to the Tribunal in this way:
(i)in the Pre-Tribunal Hearing Submission at CB 211, it was stated that:
[Sponsor] instructs that she was recently required to travel to Sydney in order to assist with the care of [the Child] due to [the Husband’s] erratic behaviour. She instructs that [the Husband] has a history of drinking heavily, due to poorly managed depression, and had absented himself from the family home for a number of days…
The [D]aughter instructs that [the Husband’s] depression and drinking has required [the Sponsor] to come to Sydney on around four occasions since around September 2016 to assist her, first when she was around five months pregnant, then around the time of [the Child’s] birth on 21 February 2017, and on another two occasions after the birth. She instructs that on each of these occasions, [the Husband] went missing for a number of days at a time after excessive drinking. She further instructs that he has recently commenced an outpatient program and receives three hours per week of alcohol counselling. This program is expected to take place over the next twenty weeks. She is concerned at the prospect of [the Husband’s] relapse into drinking and a repeat of the erratic behaviour, and regards [the Sponsor] as the only suitable support person in such circumstances. In view of her modest income and means, in addition to the fact that she has little or no paid leave remaining (see Attachment 7), it appears self-evident that [the Sponsor] would be unable to provide assistance to [the Daughter] without [Mr Chiriac’s] financial support.
(ii)in oral evidence at the Tribunal Hearing the Sponsor at Transcript page 19 lines 23-31 said that:
[The Daughter] found out about a place he could go [for treatment of his addiction issues], it’s like $300 a day for two weeks, like a special place. But he won’t go because then he’ll have to tell his work, and people will have to know. So he’s in that situation where he doesn’t want anyone to know because, you know, they’ll judge him, of course. You know, and he thinks he’s a failure at everything, so he puts on a façade and goes to work. But he’s just gone now to AA, so I think because if he wasn’t going to do something she would have to leave him.
(iii)the Tribunal did not “fail to address” any aspect of the evidence above. It accurately summarised this evidence at CB 274 at [39] where it stated that:
[The Daughter] is married to someone who has depression and anxiety and has a problem with alcohol. He has not sought assistance for his problem because he does not want anyone to know about it, although it appears that he maintains a job currently despite his difficulties and recently was also attending Alcoholics Anonymous meetings.”
(e)the Tribunal dealt with the evidence on the basis on which the evidence was given: notably, that the claim rose no higher than “concerns” about a “prospect” of “relapse into drinking and a repeat of the erratic behaviour”;
(f)the only evidence given to support the claim that the Husband would not obtain medical treatment is the reference to his refusal to attend the “special place” costing $300 a day which, in context, refers to a place for treatment of his addiction issues, as he did not want his addiction issues to be known, and did not want his depression or anxiety to be known nor that he refused to seek psychological or psychiatric treatment for his conditions (the underlying cause of his drinking) on this basis. It was not claimed that it would be impossible for the Husband to change, and such a claim would be directly contradicted by other evidence of the Husband’s attendance at AA meetings, commencement of an “outpatient program” and attending “three hours per week of alcohol counselling”;
(g)the claim that the Husband would not obtain medical treatment was not put forward as being significant in its own right or as demonstrating that the Husband’s drinking or depression was intractable, untreatable or impossible to change. Nor is this an unarticulated claim that is “squarely raised”, “clearly emerges” or arises “tolerably clearly” from the material itself in such a way that permits a reasonably competent Tribunal in the circumstances to appreciate its existence: AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 at [21]-[22] per Bromberg J. Rather, it was a subset of broader and more general claims of “concerns about a prospect of relapse”. Those concerns were adequately addressed by the Tribunal. On balance, the Tribunal’s explicit statement at CB 275 at [44] and the evidence before it of the Husband’s engagement with AA, alcohol counselling and programs indicate that it did consider matters mitigating against the Husband seeking help and avoiding relapse, but found that he would nevertheless be able to do so.
Consideration of Amended Ground 1
The claims in Amended Ground 1 are that the Tribunal failed to consider Mr Chiriac’s claim (or an integral part thereof), or failed to give proper, genuine or realistic consideration to Mr Chiriac’s claim, that the Husband would not engage in treatment that reduced his risk of relapse into drinking and erratic behaviour.
The suggestion in Amended Ground 1 that the Tribunal failed to give proper, genuine and realistic consideration to Mr Chiriac’s claim falls foul of the admonition set out in CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35] per McKerracher, White and Colvin JJ, as follows:
35That recognised, it is doubtful that the requirement that the decision-maker give ‘proper, genuine and realistic consideration’ to a particular matter as emphasised in ground 1, adds anything to the statement of principle. Indeed, generally speaking, that language is now thought to be unhelpful because it is apt to cause a court exercising its judicial jurisdiction to elide the distinction between judicial review and merits review: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where there Honours said (at [30]-[32]):
30 In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:
“That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.”
It remains then to consider the assertion that the Tribunal failed to consider Mr Chiriac’s claim (or integral part thereof) that the Husband would not engage in treatment.
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J. In Htun at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Tribunal is required to engage in an “active intellectual process” directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, but such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. The Court is conscious that the Tribunal Decision ought not to be over-zealously scrutinised in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; WAEE at [46]-[47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In considering the law as set out above the Court must consider whether:
(a)the claim was actually made and clearly articulated, or at least clearly discernible;
(b)the claim was identified and considered by the Tribunal;
(c)the Tribunal engaged in an active and intellectual process directed at the claim; and
(d)the claim, if made out, might have been dispositive of the review.
Was the claim made or clearly discernible?
The Minister’s submissions suggested that the claim that the Husband would not undertake treatment for his drinking and mental health was not made, and, rather, what had been expressed by Mr Chiriac was a concern that the Husband might relapse into drinking and erratic behaviour. It is true that there was a concern expressed by Mr Chiriac and the Sponsor that the Husband might relapse into drinking and erratic behaviour. But there was more than that. Arising from the Sponsor’s evidence there was expressly raised a clearly articulated, or at least clearly discernible, claim that the Husband “won’t go” to treatment for his issues because it would have the consequence that he would have to inform his workplace and people that he knew about his issues in circumstances where he did not want people to know and judge him in relation to those issues: Tribunal Hearing Transcript, page 19, lines 23-28.
Was the claim identified and considered?
Was there an active and intellectual process directed at the claim?
These two factors can be taken together.
At CB 274 – 275 at [42] the Tribunal observed that:
However, it would seem unsustainable over a lengthy period that the [S]ponsor could drop all her commitments in Melbourne to fly to Sydney in the event [her Daughter] needs her. The Tribunal accepts that [Mr Chiriac’s] salary will enable the [S]ponsor to visit her [D]aughter without adverse financial consequences, but it seems unrealistic that the [S]ponsor could continue to rearrange her lifestyle and her commitments in Melbourne indefinitely because [the] [H]usband refuses to seek assistance for his difficulties.
Whatever one might think of the rationale in the above quoted paragraph from the Tribunal Decision it is nevertheless evident that in the last phrase therein the Tribunal identified, albeit in slightly different language, the claim made arising from the Sponsor’s evidence set out at [15(d)(ii)-(iii)] above. The question then is whether that claim was considered in an active intellectual process by the Tribunal.

The Minister’s submissions suggest that the Tribunal did consider the claim, and that where the Tribunal said at CB 275 at [44] that:
the [Daughter] and her [H]usband could reasonably avail themselves of community services and medical treatment for her [H]usband to deal with his underlying mental health conditions and alcohol problems …
such that there were not compelling reasons for waiving the Sch 3 criteria and, that:
(a)the passage set out immediately above should be read as if it read as follows (emphasis added):
the [Daughter] and her [H]usband could and would reasonably avail themselves of community services and medical treatment for her [H]usband to deal with his underlying mental health conditions and alcohol problems …
and that if read as such it indicated that the Tribunal had considered the claim; and
(b)otherwise, and in any event, the passage should be understood as one which by reason of its generality, subsumed the claim made by Mr Chiriac.
In the Minister’s suggested reading (and in its use by the Tribunal) the use of “could” denotes potentiality: Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017) (“Macquarie Dictionary”), page 350; FT Wood, Current English Usage. A Concise Dictionary (London: MacMillan & Co Ltd, 1963) page 65, while “would” is used in a conditional sense to denote an intention to do something: Macquarie Dictionary, page 1734; The Concise Oxford Dictionary (Seventh Edition) (Oxford: Clarendon Press, 1982), pages 1232 and 1244. The Minister asks the Court to infer that the Tribunal meant “could and would” rather than just “could” in the passage at CB 275 at [44]. The Court is not prepared to draw that inference. There was direct evidence from the Sponsor that the Husband “won’t go” to treatment because of the concerns the Husband had about having to inform those in his workplace in particular about his problem. The Sponsor’s evidence in this regard was not rejected or even doubted by the Tribunal, and the Sponsor’s credibility was not questioned by the Tribunal in this respect. In those circumstances the Court ought not to draw an inference that the Husband “would” have attended treatment, and ought not read the relevant passage in the Tribunal Decision at CB 275 at [44] as if it read “could and would”.
The Minister’s submission that the claim made by the Husband was one subsumed by the generality of the Tribunal’s findings is not sustainable. The finding that the Husband “could” seek treatment is merely indicative of the potential for him to do so, and does not address whether the Husband would do so in particular circumstances where there was evidence which was not doubted that the Husband “won’t go” to particular treatment. Further, the fact that the Husband had already been to some treatment (for example, some AA meetings) did not address the claim that in the particular circumstances where the Husband would have to inform others, and in particular those in his workplace, of treatment, he would not then go to the treatment.
The Court is satisfied that although the Tribunal identified the claim made, it did not consider or engage in an active and intellectual process directed at the claim. Rather, it stopped short by only considering whether the Husband “could” access treatment, and not whether he would engage in treatment in the circumstances the subject of the claim.
Was the claim, if made out, dispositive of the review?
In order for the Tribunal’s failure to consider and engage in an active and intellectual process in relation to Mr Chiriac’s claim to be characterised as jurisdictional error it must be capable of being dispositive of the Tribunal’s review: ETA067 at [24] per Bell, Keane and Gordon JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [63] per Black CJ, French and Selway JJ. In this regard, the claim that the Husband would not engage in treatment must be material to the assessment of the “compelling reasons” criteria in cl 820.211(2)(d) of Sch 2 to the Migration Regulations.
The Husband’s conduct in this matter, and specifically in relation to the claim not considered, has the potential to impact upon the lives of each of the Child, the Daughter, the Sponsor, and Mr Chiriac, and particularly so in relation to the care of the Child, whether by the Husband or the Daughter, and whether the Sponsor’s assistance with that care might be required. Thus, a failure by the Husband to engage in treatment might give rise to a set of circumstances related to his and the Daughter’s ability to care for the Child because of his drinking and mental health issues, and the necessity for the Daughter to therefore rely upon the Sponsor to assist with the care of the Child in circumstances where the Sponsor’s capacity to do so might be dependent, either in whole or part, upon financial or emotional support from Mr Chiriac, and which might constitute “compelling reasons” for the purposes of the criteria in cl 820.211(2)(d) of Sch 2 to the Migration Regulations. Put differently, the claim not considered by the Tribunal is not irrelevant to the assessment to be made by the Tribunal for the purposes of the criteria in cl 820.211(2)(d) of Sch 2 to the Migration Regulations, and might therefore be dispositive of the Tribunal’s review. The claim not considered was therefore material in the sense referred to in MZAPC. Whether it is established to be dispositive is, of course, ultimately a question for the Tribunal, after consideration of claim.
Conclusion – Amended Ground 1
For the reasons set out at [25]-[31] above the Court has concluded that the Tribunal did not consider the claim that the Husband would not engage in treatment, and had it been considered it might have been dispositive of the Tribunal’s review, and that Amended Ground 1 is therefore made out and establishes jurisdictional error in the Tribunal Decision.
Amended Ground 2
Amended Ground 2 of the Amended Judicial Review Application unaltered, is as follows:
2.The Tribunal’s state of satisfaction that there were no “compelling reasons” was based on irrational or illogical reasons and/or was legally unreasonable.
Particulars
a. The applicant repeats and relies on particulars (a) - (g) for ground 1.
b.The Tribunal’s state of satisfaction that there were no compelling reasons needed to be based on rational and logical reasoning; or alternatively needed to be legally reasonable.
c.The possibility that the husband could or should seek treatment for his medical conditions could not rationally or logically affect the question of whether the hardship the sponsor, her daughter, or her grandson would likely experience from the applicant’s absence was “compelling”.
Mr Chiriac’s Submissions on Amended Ground 2
Mr Chiriac’s submissions on the Amended Ground 2 are as follows:
(a)having regard to the scope and purpose of the criteria, the Tribunal’s reasons as to why the Sponsor and the Daughter’s circumstances were not compelling were irrational and/or illogical. Given the grounds focus on a “subjective jurisdictional fact” rather than the exercise of discretion the findings should be attacked as irrational and illogical rather than unreasonable: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [37]-[40] and [74]-[84] per Derrington J (“EHF17”). Nevertheless, unreasonableness is pleaded in the alternative;
(b)the criteria is concerned with potential hardship caused by Mr Chiriac’s absence. The Tribunal’s finding that the Husband could and should get medical treatment does not support a finding that he would not go missing and the Sponsor’s support would not be required. Therefore, the reasoning cannot rationally support a conclusion that the hardship is limited; and
(c)put another way, it is irrational or illogical to find a person’s hardship as less “compelling” because the person who is the cause of that hardship could change their behaviour. The absurdity of the Tribunal’s reasoning can be illustrated in two ways:
(i)first, presume the Daughter’s problem was that she was being subject to stalking by an ex-partner with mental health issues. Applying the same reasoning the Tribunal could find the stalking was not a compelling reason because the perpetrator could and should cease their behaviour; and
(ii)second, the problematic nature of the reasoning is further highlighted when viewed from the perspective of the Child. The Tribunal found the lack of care for the Child is not compelling because the Husband could change his behaviour and provide care. The reasoning is illogical. The Child’s hardship is the same whether it is intractable or capable of being solved by the Husband.
Minister’s Submissions on Amended Ground 2
The Minister’s submissions on the Amended Ground 2 are as follows:
(a)the problem with Mr Chiriac’s argument is that the claim actually made to the Tribunal was not about stalking, the first example relied upon to demonstrate the alleged “absurdity”. The second example is difficult to understand. The Tribunal was clearly entitled to reason that the Child’s hardship would be reduced if the Husband could change his behaviour and provide care. The Tribunal’s reasons were not unintelligible, nor was there an absence of logical connection between the evidence as a whole and the reasons for the Tribunal Decision;
(b)consistently with the observations made in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [40] per Gummow ACJ and Kiefel J, the Court should not lightly find that a Tribunal Decision is illogical or irrational; and
(c)Mr Chiriac’s position is that given the grounds focus on a “subjective jurisdictional fact” rather than the exercise of discretion the findings should be attacked as irrational and illogical rather than unreasonable: EHF17 at [37]-[40] and [74]-[84] per Derrington J. Nevertheless, unreasonableness is pleaded in the alternative. Having regard to the evidence that underscored the Tribunal’s findings as to the Husband’s prospects of recovery and rehabilitation, it is plain that the attempts to characterise the Tribunal’s reasoning as irrational or illogical (or, in the alternative, as unreasonable) denote an expression of strong disagreement with the Tribunal’s reasoning. However, mere disagreement, however strong, with the merits of reasoning deployed does not justify curial intervention. What justifies intervention, and which is absent here, is reasoning which, upon analysis, rises to the threshold of being reasoning which no rational or logical decision maker could make on the same evidence: SZMDS at [130] per Crennan and Bell JJ.
Consideration of Amended Ground 2
The relevant test was expressed in SZMDS at [130] per Crennan and Bell JJ as follows:
130In 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.
The relevant principles in relation to legal unreasonableness are conveniently summarised by the Federal Court in Pandey at [41] per Wigney J as follows:
…
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
What was involved here was an issue 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.
The analogy sought to be drawn by Mr Chiriac with respect to the conduct of a stalker is both appropriate and irrelevant to the factual circumstances of this matter.
The conduct of the Husband was the subject of evidence in these proceedings, and as the Court has observed at [31] above, albeit in relation to the claim not considered by the Tribunal, the Husband’s conduct has the potential to impact upon the lives of each of the Child, the Daughter, the Sponsor, and Mr Chiriac, and particularly so in relation to the care of the Child, whether by the Husband or the Daughter, and whether the Sponsor’s assistance with that care might be required, and, where the Sponsor’s capacity to undertake that care might be dependent, either in whole or part, upon financial or emotional support from Mr Chiriac, it might constitute “compelling reasons” for the purposes of the criteria in cl 820.211(2)(d) of Sch 2 to the Migration Regulations. In the circumstances, consideration of the Husband’s conduct forms part of the relevant factual matrix underlying Mr Chiriac’s claims (and not just the claim not considered), and was conduct which could impact upon and affect consideration of whether Mr Chiriac’s absence, and hence a lack of emotional and financial support to the Sponsor particularly, would be matters that it was appropriate for the Tribunal to consider when determining whether there were compelling reasons for waiving the Sch 3 criteria under the Migration Relations. Whilst others may have decided matters differently, the findings made by the Tribunal on the claims that it did consider were open to it because the findings flowed logically and rationally from the available relevant evidence, most, if not all, of which was evidence provided by or on behalf of Mr Chiriac.
It follows that the Tribunal’s consideration was not affected by illogicality or irrationality in an SZMDS sense, nor was it affected by legal unreasonableness in the sense summarised in Pandey, and Amended Ground 2 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Amended Ground 3
Amended Ground 3 of the Amended Judicial Review Application, unaltered, is as follows:
3.The Tribunal asked itself the wrong question or took into account an irrelevant consideration.
Particulars
a. The applicant repeats and relies on particulars (a) - (g) for ground 1.
b.The applicant did not claim that the husband would experience hardship as a result of the applicant’s departure.
c.The Tribunal asked the wrong question and took into account an irrelevant consideration, by focusing its analysis on the circumstances of the husband, and what he could and/or should do to limit hardship experienced by the sponsor, her daughter, or grandson.
Mr Chiriac’s Submissions on Amended Ground 3
Mr Chiriac’s submissions on the Amended Ground 3 are as follows:
(a)the criteria requires the Tribunal to ask whether the hardship raised by Mr Chiriac’s claims is compelling which requires the Tribunal to ask itself whether the circumstances of the people identified in the claims - here, the Sponsor and the Daughter - are compelling;
(b)the Tribunal’s views on the theoretical possibility that another person theoretically could or should take action to ameliorate that hardship is irrelevant as it cannot have any bearing on the actual hardship of the persons raised in the claims: Minister for Aboriginal Affairs v Peko Wallsend (1986) 164 CLR 24 at 39 - 40 per Mason J. This is distinct from what is relevant consideration of the likelihood another person would take action to minimise the claimed hardship;
(c)if the criteria were read to permit a focus on anything that could theoretically be done to ameliorate hardship that would effectively confine “compelling reasons” to necessarily intractable circumstances and if Parliament had intended the definition to be so confined it would have said so; and
(d)the Tribunal asked the wrong question, either by asking whether the Husband’s circumstances were compelling, or asking whether the Husband could or should change the Sponsor or the Daughter’s circumstances. These considerations were irrelevant.
Minister’s Submissions on Amended Ground 3

The Minister’s submissions on the Amended Ground 3 are as follows:
(a)the first “wrong question” is said to be one about “whether The Sponsor’s daughter’s husband’s circumstances were compelling”. There is no evidence at all in the reasons that the Tribunal misunderstood the statutory question in this way;
(b)the second “wrong question” is said to be one about “whether The Sponsor’s daughter’s husband could or should change the Sponsor or The Sponsor’s daughter’s circumstances”: it is then asserted that this consideration was “irrelevant”; and
(c)this ground cannot be sustained. It was Mr Chiriac who made the claim that the Husband’s circumstances were relevant for the Tribunal to consider as his intermittent absences increased the burden of care-taking on the Daughter, thus requiring the Sponsor’s assistance, who was said to be “unable to provide assistance to the Sponsor’s daughter without … [Mr Chiriac’s] financial support”: CB 211. It was clearly open to the Tribunal to reason that the Husband’s capacity to change would make this matter less compelling. There was nothing speculative or “theoretical” about the Tribunal’s path of reasoning, the evidentiary basis for which was provided on behalf of Mr Chiriac.
Consideration of Amended Ground 3
It is not apparent to the Court that the Tribunal framed a question in terms of whether the Husband’s circumstances were compelling, and this aspect of Amended Ground 3 is not made out. Otherwise, the matters considered by the Tribunal related to the Husband’s conduct were relevant to the Tribunal’s consideration of those matters for the reasons set out at [31] above in relation to Amended Ground 2, and for those same reasons Amended Ground 3 is also not made out and fails to establish jurisdictional error in the Tribunal Decision.
Amended Ground 4
Amended Ground 4 of the Amended Judicial Review Application unaltered, is as follows:
4.Alternatively to grounds 1 - 3, if the Tribunal found the sponsor’s daughter and her husband could access services that would ameliorate any hardship from the sponsor’s absence, the Tribunal’s state of satisfaction was based on findings that had no logical or probative basis, or the Tribunal failed to give proper, genuine, and realistic consideration to the claims.
Particulars
a. The applicant repeats and relies on particulars (a) - (f) for ground 1.
b.To the extent the Tribunal found at [44] that the sponsor’s daughter could access services to assist her when her husband relapsed, there was no evidence or logical or probative basis to support the finding, and the Tribunal’s reasons reveal no genuine consideration of services available or how they would assist.
c.To the extent the Tribunal found at [44] that the husband would engage in treatment and that would reduce his risk of relapse there was no evidence or logical or probative basis:
i. to find he would engage in treatment; and/or
ii.that the treatment he would engage in would significantly reduce the risk that he would relapse and abandon the sponsor’s daughter and his son.
d.Further or alternatively, there was no proper, genuine, or realistic consideration as to what services the husband could access and whether they would assist. Mr Chiriac argued that the Sponsor required his financial support in order to take time off work to support her daughter, who lived in Sydney, through difficult personal circumstances.
Mr Chiriac’s Submissions on Amended Ground 4
Mr Chiriac’s submissions on the Amended Ground 4 are as follows:
(a)Mr Chiriac’s position is that the Tribunal made no meaningful findings as to the support the Daughter or Husband could access. Rather, the Tribunal made a general finding that the Husband could access services to deal with his mental illness and drug addiction and should take responsibility;
(b)however, to the extent the Tribunal’s finding at CB 275 at [44] contains a finding that the Daughter could access services to assist her, that finding has no logical or probative basis and is unsupported by the evidence. There was no material before the Tribunal identifying any services available to assist the Daughter as a parent. The only evidence at the Tribunal Hearing was that the Daughter could not access any services. Any such finding by the Tribunal would be unsupported by the evidence, illogical, or not the result of proper, genuine, or realistic consideration; and
(c)to the extent the Tribunal found at CB 275 at [44] that medical treatment would have ameliorated the risk of the Husband relapsing, that finding does not have a rational basis, is not supported by evidence and is not the subject of proper, genuine, and realistic consideration. There was no evidence to support an inference that the Husband was engaging with medical treatment or that it was likely in the near future his risk of relapse would decline. The Tribunal did not identify any specific services it considered might deal with the risk. The Tribunal’s analysis contains no reasoning to explain a conclusion that the Husband would likely recover.
Minister’s Submissions on Amended Ground 4
The Minister’s submissions on the Amended Ground 4 are as follows:
(a)by this ground, Mr Chiriac attacks the Tribunal’s reasons at CB 275 at [44] insofar as they contained “findings” that:
(i)the Daughter could access services to assist her, on the basis that there was no material before the Tribunal identifying any services available to assist the Daughter as a parent: Premise 1;
(ii)the only evidence at the Tribunal Hearing was that the Daughter could not access any services: Premise 2; and
(iii)medical treatment would have ameliorated the risk of the Husband relapsing, on the basis that:
(A)there was “no evidence” to support an inference that:
1.the Husband was engaging with medical treatment: Premise 3; or
2.it was likely in the near future his risk of relapse would decline: Premise 4;
(B)the Tribunal “did not identify any specific services it considered might deal with the risk” (Premise 5) and its “analysis contains no reasoning to explain a conclusion that … [H]usband would likely recover” (Premise 6).
(b)this ground relies on a number of premises, none of which are supportable on the facts;
(c)Premise 1 is based on a misreading of the Tribunal’s actual finding at CB 275 at [44] that “[the Daughter] and her husband could reasonably avail themselves of community services and medical treatment for her husband to deal with his underlying mental health conditions and alcohol problems”. The finding at CB 275 at [44] is about the Daughter and Husband together accessing services and treatment relevant to the Husband’s mental health conditions and alcohol problems. The Tribunal did not base its conclusion that there were no compelling reasons on any finding that the Daughter could not access services to assist her “as a parent”; given that no claim of such nature was made;
(d)Premise 2 is sought to be relied upon in impugning the alleged finding that the Daughter “could access services to assist her”. This was not the finding actually made by the Tribunal, so Premise 2 does nothing to advance Mr Chiriac’s case. In any event, Premise 2 is an inaccurate characterisation of the evidence actually given at the Tribunal Hearing. In fact, the Daughter said:
(i)“Mum’s had to come about four or five times for weeks at a time because I don’t have any family here”: Tribunal Hearing Transcript page 22 at line 44;
(ii)“So she was able to come here to support me and my husband because I needed to go to doctor’s appointments, and just emotionally I don’t have anyone else. I sort of don’t want to burden my friends with any of this stuff…”: CB 22 at [46], Tribunal Hearing Transcript page 23 at line 1; and
(iii)“…obviously it’s stressful for [the Sponsor] too, having to take time off work. But I’m her daughter, so she’s going to do it”: Tribunal Hearing Transcript page 23 at 17-19;
(e)at no point did the Daughter say that she “could not access any services” (such as, for example, finding a babysitter who was not her mother);
(f)Premises 3 and 4 are addressed by the contentions at [48(a)(iii)(A)(1) and (2)] above, which identified the evidentiary material that permitted the Tribunal reasonably to infer those matters that Mr Chiriac now complains there is “no evidence” of. The identification of even a skerrick of evidence will mean that an allegation of jurisdictional error premised on the basis of “no evidence” will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J (“MZZUG”);
(g)Premises 5 and 6 are addressed by the contentions at [48(a)(iii)(B)] above. In short, there is no requirement for the Tribunal to make more precise findings of the type alleged where those findings are subsumed in the Tribunal’s more general finding as to the Husband’s capacity to access services and treatment; and
(h)Mr Chiriac again seeks impermissible merits review from the Court of a factual finding made by the Tribunal. No legal error is revealed.
Consideration of Amended Ground 4
In relation to whether the Tribunal gave proper, realistic or genuine consideration to the matters referred to at particulars (b) and (d) of Amended Ground 4 and [47(b) and (c)] above the Court repeats what it said at [17] above, and that is sufficient to find that the latter half of particular (b) and the whole of particular (d) are not made out.
The assertion at particular (b) of Amended Ground 4 (and see too [47[b] above) that “[t]o the extent” the Tribunal’s finding at CB 275 at [44] contains a finding that the Daughter could access services to assist her was withdrawn at hearing: Transcript, page 17.
Insofar as particular (c) of Amended Ground 4 (and see too [47[c] above) makes assertions (which are both in the alternative to Amended Grounds 1, 2 and 3, and conditional - “[t]o the extent that” the Tribunal made the relevant findings at CB 275 at [44]) that the Husband “would” engage in certain treatment - the Court has already found in relation to Amended Ground 1 at [27] above that “the Court ought not to draw an inference that the Husband “would” have attended treatment, and ought not read the relevant passage in the Tribunal Decision at CB 275 at [44] as if it read “could and would”, and therefore the factual premise underpinning Amended Ground 4 does not arise and need not be dealt with by the Court.
In the circumstances set out at [49]-[51] above Amended Ground 4 has not been made out, and does not give rise to jurisdictional error in the Tribunal Decision.
Amended Ground 5
Amended Ground 5 of the Amended Judicial Review Application is as follows:
5.The Tribunal failed to comply with s 360 of the Act and/or the decision was legally unreasonable:
Particulars
a.The Tribunal at [41] found that it could not discern any reason why the Sponsor could not relocate to Sydney on a more permanent basis to assist her daughter.
b.The issue of whether the Sponsor could relocate to Sydney was not raised in the delegate’s decision.
c.The Tribunal was required by s 360 of the Act to give Mr Chiriac an opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review.”. The Tribunal found that it was ‘unable to discern why the Sponsor could not go, while Mr Chiriac is offshore, to stay with her daughter on a more permanent basis while [her daughter’s] husband seeks assistance for his difficulties’: Tribunal’s reasons, para [41].
d. The Tribunal failed to comply with s 360 as Mr Chiriac was not on notice that the potential for the Sponsor to relocate to Sydney was an issue in the review and provided no evidence or submissions in relation to the issue.
e. Further or alternatively, it was legally unreasonable for the Tribunal not to make the obvious, easy, and critical inquiry of the Sponsor as to practicalities of relocating to Sydney.
Mr Chiriac’s Submissions on Amended Ground 5
Mr Chiriac’s submissions on the Amended Ground 5 are as follows:
(a)the Tribunal gave weight at CB 274 at [41] to the possibility the Sponsor could relocate to Sydney while Mr Chiriac was offshore;
(b)the Tribunal had no material regarding the practicalities of the Sponsor moving to Sydney. The issue did not arise before the Delegate. The issue was not raised by the Tribunal at the Tribunal Hearing. A number of obvious questions were not answered:
(i)would the Sponsor be able to return to her job in Melbourne;
(ii)could the Sponsor live with the Daughter and the Child long term and if not, could the Sponsor afford to rent without an income; and
(iii)what ties did the Sponsor have in Melbourne?
(c)the Tribunal breached s 360 of the Migration Act and/or acted in a legally unreasonable manner in reaching a decision without making inquiries as to the Sponsor’s capacity to relocate. The Tribunal was required by s 360 of the Migration Act to give Mr Chiriac an invitation to “give evidence and present arguments relating to the issues arising in relation to the decision under review”: Mr Chiriac’s Submissions at [46]. Those issues are generally defined by the Delegate’s Decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [35] and [39] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. If a new issue arises on review - for the first time in the Tribunal Decision - then an applicant may not have had an opportunity to present arguments in relation to that issue: SZBEL at [36] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(d)the issue of the Daughter’s circumstances generally arose for the first time at the Tribunal Hearing. The Tribunal’s finding that the Sponsor could move to Sydney arose in the Tribunal Decision. The finding was not obviously open. Mr Chiriac’s legal representative did not refer to the possibility that the Sponsor would move in Mr Chiriac’s submissions to the Tribunal. Therefore, the Tribunal failed to comply with s 360 of the Migration Act;
(e)alternatively, a Tribunal may act unreasonably if it proceeds to a decision without making an obvious and easy inquiry into a critical fact: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, a decision-maker may act unreasonably if it fails to obtain further information from a party, where the party is the only one who can provide that information, and without that information the decision maker has “disabled itself” from making a finding: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82] per Robertson, Murphy and Kerr JJ; and
(f)the Tribunal said it was “unable to discern why the Sponsor” could not relocate to Sydney. On its own reasons the Tribunal did not have any information to assess the practicality of a move. The inquiry was easy and obvious - ask the Sponsor in writing or to attend a further Tribunal Hearing. The issue was critical as it concerned a significant circumstance put forward as a compelling reason.
Minister’s Submissions on Amended Ground 5
The Minister’s submissions in relation to Amended Ground 5 are as follows:
(a)it is necessary to be more precise about how the claim was actually put “as a compelling reason”. The claim was that the Daughter required the Sponsor’s support, and this was relevant to the question of waiver because, as Mr Chiriac submitted to the Tribunal at CB 211:
In view of [the Sponsor’s] modest income and means, in addition to the fact that she has little or no paid leave remaining (see Attachment 7), it appears self-evident that [the Sponsor] would be unable to provide assistance to [the Sponsor’s] daughter without [Mr Chiriac’s] financial support.
(b)the Sponsor elaborated on this claim at the Tribunal Hearing as follows: Tribunal Hearing Transcript page 20 at lines 5-20:
Sponsor: So it’s, yes, so this is the situation there. So I’d just, you know, I got - yes, (indistinct) if I have to go during the week, and I’ve got no annual leave, I don’t get paid. So, it just makes it really difficult. It’s not always visits - like an organised babysitting - this time. But if she rings me, I just have to go. You know, last time I was ready to go back to work and I had to go up there for a week. Had to be there a whole week. (Indistinct) - - -
Tribunal: And your employer is quite comfortable with you---?
Sponsor:Well, they - if I’ve got annual leave, it’s fine, but now I’ve used it - like, with mum passing and everything, like I might have two days or one day or something like that. But if I have to go there for four days, I just don’t - won’t get paid. You know, it’s not like I can say, ‘Oh, you know, I’ve got to go,’ I’ve just had to rush off. And if I’ve got annual leave it’s better, because I can get paid. But if I don’t, then it’s going to, you know, if it happens frequently, you know. It’s not like an organised thing. If she rings me, I just have to go.
(c)the Tribunal correctly summarised the claims and evidence at CB 274 at [40] as follows:
The [S]ponsor stated at [Tribunal] [H]earing that she was now at a point where she had no annual leave left and if she were required to go to Sydney to be with her daughter, then she would have no income to fall back on. [Mr Chiriac’s] work in the restoration and painting industry in Australia meant that he provided a measure of income support during any unscheduled visits to Sydney. The [S]ponsor works in the horticultural industry and the Tribunal accepts that she is not earning a high salary (about $45,000 per annum).
(d)it was in the context of considering the claim of having “no income to fall back on” that the Tribunal then reasoned at CB 274 at [41]:
Given this scenario, the Tribunal accepts that [Mr Chiriac’s] presence in Australia is desirable, however, whether it is compelling is another matter. It is not uncommon for people to have to re-arrange or suspend work commitments to assist family members during times of difficulty. The Tribunal is unable to discern why the [S]ponsor could not go, while [Mr Chiriac] is offshore, to stay with her daughter on a more permanent basis while [the Sponsor’s daughter’s] husband seeks assistance for his difficulties. The Tribunal acknowledges that this may require the [S]ponsor to forego a salary and the financial assistance provided by Mr Chiriac, meaning she may, for a time, have to rely on Centrelink payments.
(e)the Tribunal’s remark that it “is unable to discern why the Sponsor could not go… to stay with her daughter on a more permanent basis”: CB 274 at [41], when read in context, is an expression of its rejection of the claim that “[the Sponsor] would be unable to provide assistance to the Sponsor’s [D]aughter without [Mr Chiriac’s] financial support”: CB 211. That is, the Tribunal made a factual finding that the Sponsor would be able to provide assistance to the Daughter without Mr Chiriac’s financial support, albeit she would have to forego some of her salary in order to do so. The Tribunal sympathised (as indicated by its remark that “Mr Chiriac’s presence in Australia is desirable”) with the Sponsor’s circumstances but concluded such an outcome “is not uncommon”;
(f)once the Tribunal’s reasons are read fairly and in context, any question of an alleged breach of s 360 of the Migration Act or an SZBEL type error does not arise. The Tribunal did not raise any “new issue” for the first time at the Tribunal Hearing. It dealt with the matter of Mr Chiriac’s income support in the way that claim was put to the Tribunal above, and did not find it compelling. The Tribunal was not obliged to reveal its subjective appraisals, mental processes or provisional views on the merits of that claim: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (1981) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Nor was it under any positive duty to make enquiries outside the material presented to it by Mr Chiriac: SGLB at [43] per Gummow and Hayne JJ; SZGRK v Minister for Immigration and Citizenship [2010] FCA 153 at [18] per Rares J; CMI17 v Minister for Home Affairs [2019] FCA 1193. If there was something more that Mr Chiriac wanted to say about the severity of hardship that might result in the absence of his income support, it was incumbent on Mr Chiriac - with full knowledge of the dispositive issues on review – to make that claim. Mr Chiriac was sufficiently on notice that “the severity of the anticipated hardship”, and the importance of having supporting evidence in that regard, would be a live issue at the Tribunal Hearing in order for him to successfully persuade the Tribunal of the existence of “compelling reasons”: see Delegate’s Decision at CB 119. There was no reconfiguration of issues between the Delegate’s Decision and the Tribunal Decision to make that claim, and Mr Chiriac did not do so.
Consideration of Amended Ground 5

Section 360 of the Migration Act provides as follows:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Tribunal was required to invite Mr Chiriac to appear before it to give evidence and present arguments relating to the issues arising on the Tribunal’s review of the Delegate’s Decision: Migration Act, s 360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal was required to put Mr Chiriac on notice of the determinative issues in the review in order that he may have an opportunity to present arguments or evidence on those issues. In circumstances where specific aspects of a matter may be referred to in the Tribunal Decision and may be open to doubt, the Tribunal must at least ask for an explanation or expansion of the evidence in relation to those specific aspects: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Amended Ground 5 asserts, broadly, that Mr Chiriac was not put on notice and did not have the opportunity to present arguments or evidence in relation to whether the Sponsor might be able to relocate from Melbourne to Sydney on a more permanent basis in order to assist the Daughter with the care of the Child (assuming that by reason of his mental health and alcohol issues that the Husband would not be able to do so).
At CB 274 at [40]–[41] the Tribunal made certain observations which are set out at [55(b) and (d)] above and need not be repeated here.
The Tribunal’s observations make it plain that the issue of the Sponsor’s relocation was an important one in the context of whether or not there were compelling reasons to waive the criteria under Sch 3 of the Migration Regulations.
The Minister submitted that the issue was one of the relative economic hardship to be suffered by the Sponsor in relation to assisting the Daughter to care for the Child. Up to a point, that is a correct description of the issue. Where it ceases to be a correct description of the issue is where the Tribunal takes the matter beyond economic hardship and into the sphere of the Sponsor’s relocation from Melbourne to Sydney. The Sponsor’s relocation from Melbourne to Sydney is a distinct and separate issue from the one of relative economic hardship, albeit that economic hardship might be one factor to be considered in relation to the feasibility of relocation (social and emotional hardships might be other factors). The issue of the Sponsor’s relocation from Melbourne to Sydney did not arise out of the Delegate’s Decision, and was a new issue which does not appear to have been ventilated during the Tribunal Hearing, and which was seemingly raised for the first time in the Tribunal Decision. The Tribunal said it was “unable to discern”: CB 274 at [41] why the Sponsor could not move to Sydney “on a more permanent basis” while Mr Chiriac was offshore and while the husband “seeks assistance for his difficulties”: CB 274 at [41]. The simple reason for the Tribunal’s lack of discernment was its failure to ask simple and straightforward questions concerning the Sponsor’s capacity to relocate from Melbourne to Sydney. The failure to ask those questions, which might have included questions of the type posited in Mr Chiriac’s submissions as summarised at [54(b)] above, constituted “a failure to make an obvious inquiry about a critical fact [or facts], the existence of which is easily ascertained”: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and which in the circumstances constituted jurisdictional error by reason of a denial of the opportunity intended to be afforded to an applicant, here Mr Chiriac, in relation to the Tribunal’s review of the Delegate’s Decision: SZBEL at [44] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The error was plainly material in an MZAPC sense.
For the reasons set out at [56]-[61] above Amended Ground 5 has been made out, and establishes jurisdictional error in the Tribunal Decision.
Amended Ground 6
Amended Ground 6 of the Amended Judicial Review Application is as follows:
6.The Tribunal erred in law by applying a wrong test, asking itself a wrong question or taking into account an irrelevant consideration in determining whether there were ‘compelling reasons’ within the meaning of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (~~the Regulations~~) for not applying the criteria in items 3001, 3003 or 3004 of Schedule 3 to the Regulations (~~the Schedule 3 criteria~~).
Particulars
a.The applicant argued that the duration of his relationship with the sponsor was a relevantly compelling reason, as it was a ‘long-standing relationship which has been in existence for two years or longer’: Explanatory Statement, Migration Regulations (Amendment) 1996 No. 75 (Cth) sch 2 pt 2 cl 10.
b.The Tribunal found that ‘the parties have been in a longstanding relationship now commencing prior to marriage in December 2015’, but that ‘the applicant’s ability to enter into the relationship was based on his ability to circumvent Australia’s immigration laws’ and that it was ‘not satisfied that such circumstances are contemplated in considerations of whether compelling reasons to waive the Schedule 3 criteria exist’: Tribunal’s reasons, para [53].
c.The Tribunal unlawfully treated the applicant’s immigration history as capable of ‘negating’ reasons it accepted as per se compelling.
d.Further or alternatively, the Tribunal found that ‘when [the applicant] married he was an unlawful non-citizen’ and that ‘it could hardly be considered that the circumstances he and the sponsor now found themselves in were unforeseen, compelling or harsh in any way’: Tribunal’s reasons, para [27].
e.The Tribunal unlawfully imposed a test of whether that applicant’s circumstances were unanticipated or extraordinary: see Naidu v Minister for Immigration & Multicultural Affairs [2000] FCA 951 at [13]; Cirillo v Minister for Immigration & Anor [2015] FCCA 2137 at [49].
Mr Chiriac’s Submissions on Amended Ground 6
Mr Chiriac’s Submissions on Amended Ground 6 are as follows:
(a)the Tribunal applied a definition of “compelling reasons” confined to circumstances that were out of Mr Chiriac’s control. Specifically, the Tribunal did not accept Mr Chiriac’s support for the Sponsor following the death of her mother, or Mr Chiriac or the Sponsor’s longstanding relationship were exceptional given they were foreseeable consequences of Mr Chiriac’s breach of his Transit Visa conditions;
(b)the Tribunal found at CB 271 at [23] that Mr Chiriac had “manipulated his circumstances” such that he had a long-standing relationship with the Sponsor. The Tribunal stated at CB 272 at [25] that in assessing whether “compelling reasons” arise it should not “exclusively [look] at whether an applicant has breached their visa conditions”, but merely give weight to the fact that Mr Chiriac’s compelling reasons had arisen because he had breached his Transit Visa conditions;
(c)the Tribunal, however, did not merely give this issue weight, but treated it as prohibiting consideration of any circumstances that arose as a result of the Transit Visa breach. At CB 276 at [53] the Tribunal found Mr Chiriac’s long-standing relationship could not be a compelling reason as it would not have occurred “[b]ut for” Mr Chiriac remaining in Australia on an unlawful basis. This was the only reason the Tribunal gave for finding the long-standing nature of the relationship was not a compelling reason;
(d)the Tribunal at CB 274 at [37] found that the Sponsor’s need for support from Mr Chiriac was not compelling because Mr Chiriac’s support “could never be counted on” as he breached his Transit Visa conditions; and
(e)the Tribunal adopted a definition of “compelling reasons” confined to circumstances that were unforeseeable and had not arisen because of the breach of Mr Chiriac’s Transit Visa conditions. This may have occurred due to the Tribunal’s inflexible application of the policy. Whatever the explanation, the Tribunal asked itself the wrong question. The meaning of “compelling reasons” is not confined by a “control” or “foreseeability test”.
Minister’s Submissions on Amended Ground 6
The Minister’s submissions in relation to Ground 6 are as follows:
(a)as Mr Chiriac concedes in Applicant’s Submissions at [51], the Tribunal correctly identified the weight to be given to any findings as to how Mr Chiriac came to be in breach of the 28-day timeframe for lodging his Partner Visa application at CB 272 at [25]:
(b)the Tribunal also correctly identified, at CB 271 at [23], that it was “appropriate” to have regard to the current to Procedures Advice Manual (PAM3) policy (“PAM3 Guidelines”) formulated by the Minister, which relevantly states as follows:
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. As such, officers should consider circumstances on a case by case basis.
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.
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, 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 their 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).
(c)while no challenge is made to the policy itself, it is relevant to note that its validity was recently confirmed by this Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 1 (“Singh”) at [79]-[87] per Judge Driver;
(d)the Tribunal Decision indicates that it was in general terms informed by the PAM3 Guidelines: Bayly Affidavit, Exhibit LJB-2. That is precisely the purpose and advantage of having an administrative policy for decision-makers: to provide guidance to the exercise of an otherwise broad and unfettered discretion, which promotes the values of consistency and rationality, and the principle that administrative decision-makers should treat like cases alike: Singh at [83] per Judge Driver; Minister for Home Affairs v G (2019) 266 FCR 569 at [64]-[65] per Murphy, Moshinsky and O’Callaghan JJ. The Tribunal recognised that the PAM3 Guidelines were not binding, but nevertheless found it was proper to accord standing and consideration to such policy. This approach accords with well-settled case law that where policy should ordinarily be applied unless “cogent reasons” against its application in a particular case are shown: Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (“Drake”) at 645 per Brennan P;
(e)the Applicant’s Submissions at [52]-[54] invite an unfair reading of the paragraphs in the Tribunal Decision at CB 274 at [37] and 276 at [53] and an incomplete view of the proper standing to be accorded to the policy;
(f)the Tribunal Decision at CB 274 at [37] states:
[Mr Chiriac] stated at [Tribunal] [H]earing that he was worried about the [S]ponsor, particularly since her mother died. While the death of the [S]ponsor’s mother was in no way foreseeable, [Mr Chiriac’s] presence in Australia to support her and be by her side, could never be counted on given his residency status had not been resolved and he had spent a lengthy period of unlawfulness in Australia.
(g)it is clear that this aspect of the Tribunal Decision relates to the claim first raised in Mr Chiriac’s written submission to the Tribunal at CB 211:
It should also be noted that [the Sponsor’s] mother died recently, and that this major life event has obviously caused her additional significant distress. In the context of this recent loss, the further (albeit temporary) loss of her partner seems highly likely to unreasonably compound her already difficult situation.
(h)seen in context, CB 274 at [37] does no more than record a finding that the Sponsor’s distress with respect to her mother’s death would not be “unreasonably compounded” by Mr Chiriac’s departure as that departure was not unexpected;
(i)the Tribunal Decision at CB 276 at [53] states:
The Tribunal has had regard to the decisions cited by the migration agent in which it was explained that a relationship of two years or more duration does not have to involve a marital relationship and that in fact periods of dating can even be counted towards the longevity of the relationship. The Tribunal concurs with this approach and accepts that the parties have been in a longstanding relationship now commencing prior to marriage in December 2015. Nonetheless, as previously stated, [Mr Chiriac’s] ability to enter into the relationship was based on his ability to circumvent Australia’s immigration laws and to remain without a valid visa. The Tribunal is not satisfied that such circumstances are contemplated in considerations of whether compelling reasons to waive the Schedule 3 criteria exist. But for [Mr Chiriac’s] breach of Australia’s immigration laws, he would not have been enabled to enter into a longstanding relationship.
(j)the Tribunal’s reference in CB 276 at [53] to “Mr Chiriac’s ability to circumvent Australia’s immigration laws and to remain without a valid visa” is a reference to its finding at CB 271 at [23] that Mr Chiriac had “manipulated his circumstances to give rise to what is being argued are compelling reasons” - a finding Mr Chiriac does not seek to challenge. The Tribunal was entitled to take this matter into account and find that it reduced the force of what was being put forward as a “compelling reason”. Nothing in CB 276 at [53] supports the argument that the Tribunal considered itself bound to find that there were no compelling reasons unless those reasons arise solely from matters arising outside of Mr Chiriac’s control, or that it had otherwise fettered itself in the exercise of its fact finding and discretion by applying a “control test”; and
(k)read fairly and as a whole, the Tribunal Decision records the Tribunal arriving at a conclusion that was clearly open to it in the exercise of its discretion. Mr Chiriac has failed to establish any legal error.
Consideration of Amended Ground 6
The Tribunal Decision was informed by the relevant PAM3 Guidelines, and the Tribunal took these into account, as it was entitled to do: Drake at 645 per Brennan P; Singh at [83] per Judge Driver, in determining factual matters relevant to the question of whether there were compelling reasons for waiving the criteria under Sch 3 of the Migration Regulations. The Tribunal clearly appreciated that this was its task, and it did not restrict itself by treating the PAM3 Guidelines as irrevocably binding. Matters such as Mr Chiriac’s visa status, both generally and at the time of particularly relevant events, including the nature and the length of his relationship with the Sponsor, were relevant to a consideration of whether or not there were compelling reasons. Mr Chiriac’s submissions on Amended Ground 6 do no more than seek to challenge the weight given to the evidence and the findings of fact made by the Tribunal.
In the Court’s view Amended Ground 6 does no more than invite the Court to engage in impermissible merits review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ, an engagement it must decline.
In the circumstances set out at [66]-[67] above Amended Ground 6 has not been made out, and does not give rise to jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court has concluded that Tribunal Decision is affected by jurisdictional error as alleged in grounds 1 and 5 of the Amended Judicial Review Application, but not otherwise. It follows that prerogative relief ought to be granted by way of a writ of certiorari quashing the Tribunal Decision, and a writ of mandamus requiring the Tribunal to re-determine the matter according to law.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:
Dated: 14 October 2022

File number(s):	MLG 2371 of 2017
Judgment of:	JUDGE LUCEV
Date of judgment:	14 October 2022
Catchwords:	MIGRATION – Application for judicial review – citizen of Romania – overstay of Transit visa – Partner (Temporary) (Class UK) visa – whether failure to consider the claim or part thereof – whether findings of no compelling reasons based on irrationality, illogicality or legal unreasonableness – whether wrong question or irrelevant consideration taken into account – whether possible alternative finding concerning amelioration of hardship had logical or probative basis or whether failure to give proper consideration to claim – whether findings concerning sponsor’s possible relocation to Sydney failed to comply with s 360 of Migration Act 1958 (Cth) or was legally unreasonable – whether wrong question asked or irrelevant consideration taken into account in determination of whether compelling reasons existed – whether jurisdictional error – writs issued
Legislation:	Migration Act 1958 (Cth) ss 65, 360, 474, 476 Migration Regulations 1994 (Cth) Sch 2 cl 820.211, Sch 3 cll 3001, 3003, 3004
Cases cited:	AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALD 630 Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 119 CMI17 v Minister for Home Affairs [2019] FCA 1193 CXS18 v Minister for Home Affairs [2020] FCAFC 18 Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228 GEQ18 v Minister for Home Affairs [2019] FCCA 3338 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Aboriginal Affairs v Peko Wallsend (1986) 164 CLR 24 Minister for Home Affairs v Buadromo [2018] FCAFC 151 Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569; (2019) 367 ALR 49; (2019) 164 ALD 103 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 SZGRK v Minister for Immigration and Citizenship [2010] FCA 153 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Material:	FT Wood, Current English Usage. A Concise Dictionary (London: MacMillan & Co Ltd, 1963) Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017) The Concise Oxford Dictionary (Seventh Edition) (Oxford: Clarendon Press, 1982)
Division:	Division 2 General Federal Law
Number of paragraphs:	71
Date of last submission/s:	23 November 2021
Date of hearing:	23 November 2021
Place:	Perth
Counsel for the Applicant:	Mr M Kenneally via CISCO Webex
Solicitor for the Applicant:	Lawson Bayly
Counsel for the First Respondent:	Ms K Chan via CISCO Webex
Solicitor for the First Respondent:	Clayton Utz
Second Respondent:	Submitting appearance, save as to costs

MLG 2371 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MARIAN DANIEL CHIRIAC Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	14 OCTOBER 2022