CIRILLO v Minister for Immigration
[2015] FCCA 2137
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIRILLO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2137 |
| Catchwords: MIGRATION – “compelling reasons” for the purposes of the Migration Regulations – Husband and Wife formerly resident in Australia then returned to their native Italy and after an absence of 17 years returned to Australia – consideration of decision of Federal Court of Australia sitting in original jurisdiction but de facto on appeal from Migration Review Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.477 (1) & (2) Migration Regulations 1994, cls.155.212, 155.212(2), (3), (3A), (4) |
| Minister for Immigration and Ethnic and Aboriginal Affairs v Wu Shan Liang (1996) 185 CLR 259 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428; 245 ALR 691 |
| Applicant: | GIUSEPPE CIRILLO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 62 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 3 February 2015 |
| Date of Last Submission: | 3 February 2015 |
| Delivered at: | Canberra |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Wood |
| Solicitors for the Applicant: | John O'Keefe Lawyers, Canberra |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Clayton Utz, Canberra |
ORDERS
Pursuant to s.477(2) of the Migration Act 1994, an extension of time be granted to the Applicant in relation to the Application filed on 1st October 2014;
The decisional record of the Tribunal be brought into this Court, and a writ of certorari issue to quash the decision of the Tribunal;
A writ of mandamus issue to direct the Tribunal to determine the matter according to law;
The First Respondent pay the Applicant’s costs in the sum of $6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 62 of 2014
| GIUSEPPE CIRILLO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Application before the Court is a challenge to and review of a decision of the Migration Review Tribunal (“the Tribunal”) which was delivered on 2 July 2014. A copy of the decision is set out in the Court Book (“CB”).[1]
[1] See CB 220 – 225.
The Tribunal found that the Applicant did not meet the relevant criteria for the grant of a subclass 155 visa; it affirmed the decision not to grant the Applicant a Return (Residence) (Class BB) (subclass 155) visa.
Background
The following factual matters are not in dispute; they are set out in (a) the Tribunal’s decision, (b) the material accompanying the Application, and (c) the respective submissions of the parties.
The Applicant is an Italian national. He is 58 years old. He arrived in Australia, together with his Wife, as a permanent resident on 31 December 1983. The Applicant and his Wife returned to Italy on 11 March 1995, and returned to Australia on 28 June 2012. Accordingly, the Applicant had been absent from Australia for some 17 years.
On 16 October 2013, the Applicant applied for a Return (Residence) (Class BB) visa. In doing so, he sought to satisfy the criteria for a subclass 155 (Five Year Resident Return) visa.
The general evidence of the Applicant, which was essentially not disputed factually by the Tribunal, was as follows.
The Applicant was born in Calabria. His Wife was born in Sicily. They are both Roman Catholic. The Applicant said that Calabrian ties are “very strong.” He also said that in Southern Italian (i.e. Calabrian and Sicilian) culture, “Family and blood links are of utmost importance culturally and ties to family form an inextricable bond and link to members of the family.” He said that a particular aspect of southern Italian culture is “looking after family, getting children their own home and saving face as a provider of one’s family.” Furthermore, there are certain important cultural and family occasions in the Roman Catholic culture and tradition, including baptisms and first communions for children.[2]
[2] CB 208 - 211, 223.
The Applicant left Australia in 1995 and returned to Sicily due to certain health issues of his Wife. She had been injured in a car accident in 1988 and had developed depression as a consequence. The Wife’s depression impacted on their family, which comprised the Applicant, his Wife and their young daughter. Medical professionals advised that, in the light of the Wife’s health, the Applicant and his family should return to Italy saying that it would be best for the Wife’s health if she (and the family) lived closer to the Wife’s parents and extended family.[3]
[3] CB 39 – 40.
The Applicant and his family returned to Italy. They focused on ensuring that the Wife’s health improved and that their daughter suffered minimal stress from the relocation.[4]
[4] CB 40.
After returning to Italy, the Wife’s parents died, and her depressive condition worsened. Her depression only started to lift after her daughter married a Calabrian man, and subsequently had children in 2004 and 2007.[5]
[5] CB 208, 210.
Unfortunately, the daughter and her husband also experienced difficulties. They were unable to obtain full-time employment and, given the lack of a social welfare system in Italy, were unable to find accommodation. The Applicant felt that he “did not have an option but to build a house for his daughter and son-in-law.” It took longer than usual for the Applicant to build this house due to various factors including his limited finances. The Applicant also felt “compelled” (he said) to remain in Italy to attend the baptism and first communion of both of his grandchildren.[6]
[6] CB 208.
The daughter’s husband would not move away from his Calabrian family. As well, having regard to the strength of Calabrian family ties, the Applicant felt that he “could not leave his daughter and these factors became stronger when the Applicant’s daughter had two children of her own.”[7]
[7] CB 223.
It is not disputed that the daughter has now obtained a visa allowing her to return to live in Australia, and is in the process of relocating to Australia.[8]
[8] CB 209.
The Tribunal’s Decision
The Tribunal was not satisfied that there were “compelling reasons” for the Applicant’s absence from Australia for the period stated. The substantive part of the Tribunal’s reasons are set out in paragraphs 24-28 as follows:
[24] I accept that the Applicant’s return to Italy was necessitated by his Wife’s medical condition and her need for support from her family. My difficulty is that the assessment of the Applicant’s absence from Australia must be viewed in the context that there then follows a 17-year absence. I assess the reasons put forward by the Applicant in the context of a prolonged period of absence.
[25] Mr Cirillo’s evidence to me was that his Wife’s health gradually improved. I do not accept that the Applicant’s Wife’s medical condition of itself explains the Applicant’s ongoing absence from Australia, and does not constitute a reason for the absence in the latter part of his absence from Australia. Indeed, on the basis of the Applicant’s evidence, I do not understand that the Applicant’s evidence is that his Wife’s health was an ongoing reason for his absence from Australia – and I note this would be inconsistent with his and Mrs Alongi’s current desire to now reside here permanently.
[26] In considering other factors put forward, I accept the Applicant’s evidence that he remained in Italy as his own daughter drew up, gained qualifications and employment, married and had a family of her own. I do not accept the submission that subsequent baptisms and first communions of grandchildren constitute new compelling reasons for an ongoing absence from Australia.
[27] As to the Applicant’s wish to be near his daughter and her family, and his new son-in-law’s desire not to migrate to Australia (regardless of cultural expectations underlying it) I do not view these circumstances as compelling. My view on all the evidence before me is that while there may be compelling reasons behind the Applicant returning to Italy when he did, he then settled in Italy with ordinary motivations to stay and be near his immediate family in circumstances that I do not find to be relevantly compelling.
[28] I have considered carefully all the matters advanced by the Applicant and on his behalf to explain the reasons why he remained absent from Australia in excess [of] five years. On reflection I am not satisfied that the reasons are compelling. I reach this view reluctantly having had regard to the extensive evidence of the Applicant’s substantial personal ties to Australia, I do not consider that it is open to me to take those ties into account in assessing whether or not the reasons for the absence are compelling.
Then at [29] the Tribunal went on to find that the Applicant had been absent from Australia for a continuous period of five years or more since the date of the grant of the Applicant’s most recent permanent visa, and that the Tribunal was not satisfied that there are compelling reasons for that absence. Accordingly, the Tribunal found that the Applicant
…does not satisfy cl.155.212(3A) of Schedule 2 to the Regulations, and in the light of [the Tribunal’s] findings above does not satisfy cl.155.212 on any other basis.
Legislative Framework
It was not disputed either by the Minister or by the Applicant that the criteria for a Subclass 155 visa include that, at the time of the visa application, the Applicant is required to meet the requirements of subclauses 155.212(2), (3), (3A) or (4) of the relevant Schedule to the Migration Regulations 1994 (“the Regulations”). The relevant subclause is 155.212(3A), which provides as follows:
The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:
(a) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and
(b) has not been absent from Australia for a continuous period of 5 years or more since:
(i) the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for the absence; or
(ii) the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.
The Tribunal accepted, at [12] of the reasons, that the Applicant met the requirement of subclause 155.212(3A)(a), on the basis that the Applicant had “substantial personal ties to Australia which are of benefit to Australia.”
The essential issue before the Court and addressed thoroughly in submissions by the Applicant and the Minister was whether the Applicant met the requirement of subclause 155.212(3A)(b)(i). In particular, the issue was whether there were “compelling reasons” for the Applicant’s absence from Australia for the relevant period.
Both parties also essentially accepted that the judicial reference point for the Court’s determination of the current matter was the decision of Crennan J (as her Honour then was) in Paduano v The Minister for Immigration and Multicultural and Indigenous Affairs (“Paduano”).[9]
[9] Paduano v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204.
Applicant’s Submissions
The Applicant contended that the Tribunal’s decision was affected by jurisdictional error because the Tribunal asked itself the wrong question or, in any event, failed to answer the relevant question in considering whether it was satisfied that the Applicant met the requirements of subclause 155.212(3A)(b)(i) of the Regulations. In particular, the Applicant argued that the Tribunal erred in the following respects:
(a) asking itself whether it (i.e. the Tribunal) found the Applicant’s reasons for his period of absence from Australia to be compelling, rather than the correct question, which was whether the Applicant’s reasons were forceful to the Applicant, or whether the Applicant’s reasons would have been forceful to a reasonable person in the same circumstances as the Applicant (including the Applicant’s cultural and religious context); and
(b) considering and attributing significance to whether the Applicant’s reasons emanated from “ordinary” motivations, and thereby placing a gloss on the statutory test.
The Applicant said that in Paduano the Tribunal had found that although the Applicant had initially returned to Italy because of his Wife’s health (rather like the facts in the present matter) the Applicant had not returned to Australia until 1997, for reasons including that the Applicant and his Wife “were psychologically dependent upon and needed to remain with their daughter and her family.” In Paduano the Tribunal was not satisfied that the Applicant’s absence from Australia for 25 years had been for “compelling reasons.”
The Applicant noted that Crennan J quashed the Tribunal’s decision, because her Honour concluded that the Tribunal had applied a “higher test” than the expression “compelling reasons” required.[10] Her Honour explained that “compelling” in its “wide, ordinary meaning means “forceful”.” In the same place, her Honour said that: “Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing.”[11]
[10] See 143 FCR 240 at [47].
[11] 143 FCR 204 at [37].
The Applicant said that at [44] in Paduano her Honour held that “the Applicant is the one who must have been compelled by the reasons for his absence.” In passing, in my view, I am not sure that this is a strictly accurate or fair account of Crennan J’s discussion of this particular part of her judgment.
The Applicant contended that it followed that the matter of fact that the Tribunal was required to be satisfied of was whether the Applicant remained absent from Australia for the period in question for a reason that was forceful to the Applicant “which might include a physical, legal or moral necessity felt by the Applicant.” The Tribunal in Paduano was not to consider whether the Tribunal itself does (or would) feel that “force” of the Applicant’s stated reasons. The Applicant further noted that in Paduano, insofar as the Tribunal was required to consider for itself whether the Applicant’s stated reasons for his absence were “forceful”, then the Tribunal must make that assessment “objectively” and “by reference to some standard of reasonableness as a reasonable person in the same circumstances as the Applicant.”[12] Accordingly, in the current matter, it was said that the Tribunal would err by considering whether it subjectively found the Applicant’s reasons for his absence to be forceful (emphasis added).
[12] 143 FCR 204 at [41].
The Applicant noted that subclause 155.212(3A)(b)(i) makes no distinction between “ordinary” motivations or reasons on the one hand, and “extraordinary” or “unusual” or motivations or reasons on the other. It was submitted that a reason may emanate from an ordinary or a common motivation and nevertheless be forceful.
On the basis of Crennan J’s reasoning in Paduano, the Applicant said that if reasons are “forceful” to an Applicant (or would be forceful to a reasonable person in the same circumstances as the Applicant), then, even though the reasons may emanate from an “ordinary” or “normal” human desire, the reasons are relevantly “compelling” within the meaning of the subclause in question.
In the light of the reasoning in Paduano, the Applicant submitted as follows in relation to the errors said to have been committed by the Tribunal in the current matter.
It was submitted that the Tribunal erred by asking whether “it” (i.e. the Tribunal) found the Applicant’s reasons for his absence to be “compelling”. It was submitted that this error has two dimensions to it. First, the Tribunal made no finding as to whether the Applicant’s reasons for his absence from Australia (including but not limited to the existence of strong familial bonds and particular cultural and religious norms) were forceful to the Applicant. The Tribunal made no finding as to whether the Applicant’s reasons involved a “moral necessity” for the Applicant, or were otherwise by reason of their forcefulness convincing to the Applicant.
Further, in finding that the Applicant’s reasons were not compelling (in the relevant sense), the Tribunal did not conduct that assessment objectively and “by reference to some standard of reasonableness as a reasonable person in the same circumstances as the Applicant.”[13] It was submitted that the Tribunal simply concluded, without explanation or reasons, that it did not “accept” that the Applicant remaining in Italy in order to support his daughter and to participate in Catholic rituals involving his grandchildren “constitute … compelling reasons.” It was submitted that in order for the Tribunal to conduct an objective assessment of the Applicant’s reasons, it would have needed to consider whether a reasonable person within the Applicant’s cultural (i.e. southern Italian) and religious contexts (i.e. Roman Catholic sacramental and family practices) would have felt a moral necessity in his circumstances to stay in Italy with his daughter and grandchildren for the period that he did.
[13] See Paduano 143 FCR at [41].
The second substantive error said to have been committed by the Tribunal was that it placed a gloss on the statutory criteria by considering, and then attributing significance to, its finding that the Applicant’s reasons for staying in Italy for the period that he did emanated [only] from “ordinary” motivations. It was submitted that it was irrelevant whether or not the Applicant’s reasons stemmed from ordinary or extraordinary motivations.
In conclusion, the Applicant contended that although the Tribunal identified (at reasons [16]) Paduano as the relevant authority it misconstrued the nature of the matter that it was required to be satisfied of in order for the Applicant to meet the requirements of the relevant subclause.
In short, it was submitted that the Tribunal asked the wrong question or, in any event, failed to answer the relevant question. It followed from either or both of these contentions that the Tribunal’s decision was affected by jurisdictional error.
The Minister’s Submissions
The Minister’s brief submissions were as follows.[14]
[14] Formally, the Minister also opposed the extension of time Application.
It was first submitted that the only basis on which the Applicant could satisfy the criteria for the visa was if he met the conditions prescribed in clause 155.212(3A). While the Tribunal accepted that the Applicant had sufficient ties to Australia to meet the requirements in paragraph (a) of the sub-clause, it was not satisfied that he met the criteria of subparagraph (b)(i), which required the Tribunal to be satisfied that there are “compelling reasons” for the Applicant’s absence from Australia for more than five years since the grant of his most recent permanent visa.
The Minister then sought to distinguish Paduano, saying that, strictly speaking, because it was in the Federal Court’s original jurisdiction, it was not strictly binding on this Court but obviously should be followed as a matter of comity unless plainly wrong. The Minister said nothing about an intermediate court, such as this Court, not following a decision of a superior court.
Next, in response to a submission by the Applicant, the Minister submitted that at [41] in Paduano her Honour was not there stating that the Applicant’s reasons for his absence must be forceful “to him” as sufficient to satisfy clause 155.212(3A)(b)(i). The Minister submitted that as her Honour pointed out, it is the Minister (and thus the Tribunal) that is entitled (and required) to make a judgment as to whether the Applicant’s reasons for the absence are forceful. It was contended that this is what the Tribunal in fact did. It considered and accepted the Applicant’s reasons for his prolonged absence from Australia (essentially to be near his immediate family) but did not consider these reasons to be compelling.
The Minister further said that while the Tribunal did not explicitly ask whether the Applicant’s reasons would have been forceful to a reasonable person in the same circumstances as the Applicant, it did not have to do so. It was submitted that the reference to a reasonable person in the same circumstances as the Applicant in Paduano at [41] was not imposing some requirement to this effect that the Tribunal must explicitly apply in every case. If it was, it was said that it would itself be a gloss on clause 155.212(3A)(b)(i) and should not be followed as plainly wrong. Rather, it was submitted, her Honour was explaining that the judgment as to whether the Applicant’s reasons for absence were “compelling reasons” was an objective one for the Tribunal to make. Because, this is what the Tribunal did, no jurisdictional error was established.
In relation to the Applicant’s contention regarding whether or not the reasons emanated from “ordinary” motivations, and thereby placed a gloss on the statutory test, the Minister submitted that while the Tribunal referred to the Applicant settling in Italy with ordinary motivations to be near his immediate family, this was simply part of the Tribunal’s reasons for explaining why, in its view, the Applicant’s reasons for his absence were not compelling. It was not suggesting that the lack of “ordinary motivations” is a part of the statutory test for “compelling reasons.” This particular does not read the Tribunal’s reasons fairly, it was submitted, according to the comments of the High Court in Minister for Immigration and Ethnic and Aboriginal Affairs v Wu Shan Liang.[15] It was submitted that the Tribunal did not impose any gloss on the statutory test, which is correctly stated by reference to Paduano.
[15] Minister for Immigration and Ethnic and Aboriginal Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
Accordingly, it was submitted that no jurisdictional error had been established and therefore the application, both in its substantive aspect and procedurally (regarding it being filed out of time), should be dismissed with costs.
Consideration
I have already noted that the basal facts of this matter are not disputed. They need not be repeated. The only issue is the proper construction and application of the words “compelling reasons” as set out in sub-clause 155.212(3A)(b)(i) of the Regulations, and in the light of that construction, whether the undisputed facts satisfy the Regulations for the purposes of granting a Subclass 155 visa to the Applicant.
It is also not disputed, save for one submission on the Minister’s behalf (discussed below), that the decision of Crennan J (as her Honour then was) in Paduano is the proper point of reference for the Court’s decision. Among other things, this is especially so because her Honour was dealing with a Subclass 155 visa, just as the Court is in the present matter. Before dealing with her Honour’s judgment in detail, I note the following in relation to the Minister’s sotto voce submission that, because Crennan J was sitting in the Federal Court of Australia’s original jurisdiction, strictly speaking, her Honour’s decision was not binding on this Court, unless plainly wrong.
In relation to this submission it is sufficient to note that in the later decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen, the Full Court of the Federal Court of Australia (Gyles, Stone & Buchanan JJ) referred to her Honour’s judgment without adverse comment.[16] In my view, the Full Court’s lack of adverse comment is more than sufficient for this Court to accept without qualification the judgment of Crennan J in Paduano. And in the light of such a conclusion, the relevance of the Minister’s submission about her Honour sitting in the Federal Court’s original jurisdiction is difficult to fathom, noting also that her Honour was hearing an application to review a decision of the Tribunal in any event. Such a submission related, strictly speaking, to the form of and jurisdictional framework for the Application before her Honour as opposed to its substance and effect.
[16] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428 at [32] – [34], & [37].
To move to a consideration of the decision in Paduano, first, at [31] – [34], Crennan J set out jurisprudence in relation to the words “compel” and “compelling”, the Latin root (pello/pellere) for those words, and various dictionary meanings of them. I need not repeat what her Honour said there except to note that, at [32], she said (emphasis added):
… it is clear beyond dispute that the idea of ‘force’ common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the ‘force’ of mental stimuli such as from a ‘compelling argument’.
Her Honour then considered the legislative intention in relation to the word “compelling” contained in the Regulations, and said, at [35] (emphasis added):
The legislative intention to be discerned in the legislature’s use of the word ‘compelling’ in the expression ‘compelling reasons for the absence’ is not an amalgam of every shade of meaning of ‘compelling’ to be found as examples of common usage in dictionaries. A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.
Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):
The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for the absence’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.
Commenting on earlier decisions of the Federal Court, and then providing her own view of the proper construction and interpretation of the relevant regulation, at [40] and [41], her Honour said (emphasis added):
[40] In both McNamara and Babicci, the judges treated the Minister, rather than the applicant, as the implied predicate, that is as the person the legislature intended to be ‘compelled’ by the ‘compelling reasons’ or ‘compelling circumstances’ respectively, reflecting the syntax of the waiver provisions under consideration.
[41] The subclause here is somewhat different syntactically. The expression ‘compelling reasons for the absence’ must, I think refer to the applicant’s absence. Whilst the drafting style is one which requires the Minister’s satisfaction as to a matter of fact, it seems to me this does not mean the Minster’s decision on this aspect involves only a subjective judgment as in McNamara’s case. If, as I think is correct, the applicant is the one who must have been ‘compelled’ by the reasons for his absence, the requirement that the Minister be satisfied in respect of them means that the Minister is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the appellant. Even if I am wrong, and the subclause does not introduce any objective standard, any subjective judgment made by the Minister as to whether the reasons were compelling would still have to be reasonable in the administrative law sense.
After confirming, at [51], that to err in the construction of an expression in delegated legislation, which forms part of the criteria for the grant of a visa, is equally to err in law, her Honour concluded, at [53] (emphasis added):[17]
As a result of an error in construing the legislative expression, the Tribunal asked itself a wrong question: ‘Were the reasons for the absence compelling in that they “demand or rouse strong attention, interest or admiration or . . . tend to demand action?” If the Tribunal wished to ask the question posed by the case by reference to the ordinary meaning of ‘compelling’, the correct question was: ‘Were the reasons for the absence compelling in that they were forceful?’ In answering that question, the Tribunal would commit a mistake of law if it put a gloss on ‘forceful’ so as to exclude reasons for the absence which are forceful in that they involve moral necessity, or are convincing by reason of some forcefulness….
[17] See also her Honour’s comments about the Tribunal applying a higher test than the express words of the Regulation required, at 143 FCR at [47].
Disposition
In the current matter, at [26] – [28] of its reasons, the Tribunal found that the reasons and circumstances advanced by the Applicant for remaining in Italy did not relevantly constitute “compelling reasons” for the purposes of clause 155.212(3A) of the Regulations. In particular, at [27] of its reasons, the Tribunal said: “My view on all the evidence before me is that while there may be compelling reasons behind the Applicant returning to Italy when he did, he then settled in Italy with ordinary motivations to stay and be near his immediate family in circumstances that I do not find to be relevantly compelling.”
In my view, the approach and conclusion of the Tribunal in this matter falls foul of almost exactly the same flaws found by Crennan J in Paduano. Among other things, the “ordinariness” of the Applicant’s reasons for remaining in Italy for as long as he did, do not, thereby, render those reasons any less compelling than other, perhaps, more extraordinary reasons. As her Honour said, at [37]:
… ‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing….
In my view, the reasons given by the Applicant, which were not questioned by the Tribunal as to their veracity or accuracy, readily come within the ambit of her Honours discussion regarding “moral necessity”, and equally Crennan J’s comments regarding the terms of the subclause not being read, in terms, “narrowly.”
Also in the light of Crennan J’s comments in Paduano, in my view, the decision of the Tribunal is infected with error, in relevantly legal senses, in that:
(a)contrary to her Honour’s conclusion at [37] and [41] in Paduano, the Tribunal said that it was not satisfied that the reasons given by the Applicant were not compelling, whereas her Honour held (in the same place) that it is the Applicant who must be compelled. In my view, clearly the Applicant felt compelled by the “moral necessity” of his family circumstances, and
(b)also contrary to her Honour’s conclusion at [41] in Paduano, the Tribunal did not relevantly apply the administrative law standard of reasonableness namely “such as a reasonable person in the same circumstances as the [Applicant].”
More generally, and in addition to the reasons I have given, I should be taken otherwise to accept the submissions of the Applicant.
Accordingly, the Applicant should have the relief sought, namely, that
(i)the decisional record of the Tribunal be brought into this Court, a writ of certorari issue to quash the decision of the Tribunal;
(ii)a writ of mandamus issue to direct the Tribunal to determine the matter according to law.
One final matter needs to be addressed.
In the Applicant’s original Application (filed 1st October 2014), but curiously not in his Amended Application (filed 20th January 2015), he sought an extension of time pursuant to s.477(2) of the Act. That part of the Application was supported by an Affidavit filed by his solicitor (and migration agent), Ms Feeley, filed 1st October 2014.
The substance of that affidavit was that (a) the Applicant had moved to Adelaide [to be closer to family], (b) the Applicant’s English was poor and needed a translator, (c) the translator chosen was busy, and could only attend to the translation required “after hours” (because that person worked full time in other employment) which led to the Applicant’s documents taking some time to be returned to the Applicant’s solicitor.
The Minister opposed the extension of time Application on the bases that (a) the substantive Application was unmeritorious, and (b) the reasons for delay, and in particular the difficulties with the chosen translator, were an insufficient or inadequate explanation for not filing the substantive Application within the time prescribed by s.477(1) of the Act.
Although the reasons for the delay are, respectfully, “modest”, in my view, the interests of the administration of justice warrant the extension of time application to be granted.
As sought in the Amended Application, there should also be an order for costs in the Applicant’s favour, fixed in accordance with the Schedule to the Rules of this Court in the sum of $6825.00.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 14th August 2015
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