DANESHPOUR v Minister for Immigration
[2020] FCCA 879
•23 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANESHPOUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 879 |
| Catchwords: MIGRATION – Partner visa application – where Tribunal affirmed delegate’s decision to refuse visa – whether Tribunal misapplied PAM3 criteria – whether failure by Tribunal to discharge its core function of review – whether failure to undertake cumulative assessment of all circumstances of application – Tribunal failed to consider reasons as a whole – application for judicial review allowed – decision quashed – application referred back to make decision according to law. |
| Legislation: Federal Circuit Court of Australia Act1999 (Cth), ss.67, 68 |
| Cases cited: ATT20 v Minister for Immigration and Boarder Protection [2020] FCCA 499 |
| Applicant: | NAVID DANESHPOUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1947 of 2018 |
| Judgment of: | Judge Kelly |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Kenneally |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Ms J. Lucas |
| Solicitors for the Respondents: | Mills Oakley |
THE COURT ORDERS THAT:
By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
By consent, the applicant have leave, now for then, to file the amended application filed on 19 March 2020.
The amended application filed 19 March 2020 be allowed.
A writ of certiorari issue directed to the second respondent quashing its decision dated 1 June 2018 (case number 1607464).
A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the applicant for review of the decision of a delegate of the first respondent made on 9 May 2016 under s 65 of the Migration Act 1958 (Cth).
The first respondent pay the costs of the applicant as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1947 of 2018
| NAVID DANESHPOUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 19 March 2020 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 1 June 2018 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, I have concluded that the application should be allowed. In substance, I accept that the Tribunal failed to discharge its core function of review in that, in determining to affirm the decision to refuse the visa, it did not undertake a cumulative assessment of the matters relied upon by the applicant. I have also concluded that the other ground of review, Ground 1, is without merit.
Background
The background to the application was essentially common ground.
The applicant is a 29-year-old Iranian citizen who first arrived in Australia on 15 February 2011 on a Subclass 573 Student visa which ceased on 12 February 2014. On 16 April 2014, the applicant was granted a Bridging visa on condition that he would lodge an application for a Partner visa or depart Australia. On 24 April 2014, the applicant was granted a further Bridging visa on departure grounds as he had not lodged that application. Then, on 15 February 2015, the applicant was granted a further Bridging visa on the basis that he would lodge an application for a Protection visa. This visa ceased about a fortnight later and thereafter the applicant remained in Australia unlawfully.
On 29 July 2015, the applicant married his sponsor, Ms Emily Stewart-Thornton. On 4 November 2015, the applicant was granted a further bridging visa on the basis that he would lodge an application for a substantive visa. On 4 December 2015, he applied for the visa. On 9 May 2016, a delegate rejected the application and on 1 June 2018 the Tribunal affirmed that decision. In practical effect, the issue was whether the applicant should be allowed to make the application in Australia, or be required to return to Iran to pursue the application.
The applicable legal principles were not in dispute. The issues to be determined by the Tribunal were whether the applicant met the Sch 3 criteria being those in Items 3001, 3003 and 3004, in accordance with par 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) (regulations) and if not, whether there were compelling reasons to waive the Sch 3 criteria.
As the applicant did not hold a substantive visa, he needed to satisfy all of the Sch 3 criteria, Items 3001, 3003 and 3004. The first of those criteria required that the visa application had been lodged within 28 days of expiry of the applicant’s Student visa. The applicant could not satisfy that criterion. Clause 820.211(2)(d)(ii) further provided that the Sch 3 criteria could be waived if the Minister was satisfied there were compelling reasons for not applying those criteria. The only question for the purposes of the present application relates to the quality of the Tribunal’s consideration of whether there were compelling reasons for not applying those Sch 3 criteria. The applicant’s lawyers lodged detailed submissions with the Tribunal, before and following the hearing. He also appeared to give evidence to the Tribunal, as did his partner.
The Tribunal found there were no compelling reasons to allow the applicant to be granted the Partner visa on-shore rather than making an offshore application from Iran. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons).
The applicant had put forward the following reasons for waiving the Sch 3 criteria which were addressed by the Tribunal as follows:
a)he and his sponsor were in a genuine relationship: [29];
b)the relationship was a long-standing one of more than three years’ duration: [32];
c)his sponsor suffered anxiety and irritable bowel syndrome, and the applicant assisted her to deal with her anxiety: [33]-[39];
d)the applicant would suffer depression if he and his sponsor were separated: [40];
e)his sponsor would suffer emotional hardship in the applicant’s absence: [41];
f)the safety of the applicant and his sponsor would be compromised if they were required to travel to Iran to make an offshore application: [44];
g)the applicant would need to do military service on return to Iran. This would cause hardship to him personally and would make it more difficult to maintain contact with his sponsor: [45].
There was no criticism of the statement of applicable principles by the Tribunal. The Tribunal correctly observed that cl 820.211(2)(d)(ii) allowed certain persons who were unlawful non-citizens in Australia to regularise their status if compelling reasons existed for doing so. It recognised that the regulations prescribed the circumstances that needed to be considered when assessing whether or not compelling reasons exist. The Tribunal observed that the phrase ‘compelling reasons’ was not defined for these purposes and that the intent of the waiver provisions was to allow persons whose circumstances are genuinely compelling to regularise their status: [17]-[19].
The Tribunal referred to authority,[1] observing that the suggested reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead the decision-maker to make a positive finding in favour of waiving the required criteria. It further observed that circumstances which constitute ‘compelling reasons’ for not applying the Sch 3 criteria can arise at any time, including after the visa application has been made.[2]
[1] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478.
[2] Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
The Tribunal noted that it had regard to PAM3 in relation to ‘compelling circumstances’ under cl 820.211(2)(d)(ii), in which the focus was the conduct of the visa applicant. It observed that recent changes to the PAM3 suggested there was only limited provision of unlawful non-citizens to successfully apply for UK 820 visas. It further noted that the provisions were not intended to facilitate persons who failed to comply with their visa conditions, deliberately manipulated their circumstances to give rise to compelling reasons or who could leave Australia and apply for a Partner visa outside Australia: [22].
The Tribunal summarised the information submitted by the applicant to address factors he considered compelling reasons for the waiver of the Sch 3 criteria: [23]-[45]. The Tribunal also set out, in full, a submission provided by the applicant following the hearing: [11].
The Tribunal considered the parties’ claim to be in a genuine spousal relationship. While it accepted that the parties were married, it noted that a genuine relationship did not, in or of itself, necessarily constitute a compelling reason to waive the Sch 3 criteria since genuineness should form the basis of all partner visa applications. The Tribunal identified the evidence that was tendered on this issue and noted that while the parties lived in a property owned by the sponsor’s parents, the fact of the marriage had been kept a secret from their respective parents: [28].
The Tribunal noted that compelling reasons must involve something in addition to the basic pre-requisite criteria for the grant of the visa and that compelling reasons must go beyond whether or not the applicant and the sponsor were in a genuine spousal relationship. The Tribunal determined that it would not waive the Sch 3 criteria on the basis of the genuine relationship between the applicant and sponsor: [28]-[31]. Further, in respect of the applicant’s claim that he and the sponsor were in a long-standing relationship of over three years duration, the Tribunal also found that this alone was not a compelling reason not to apply the Sch 3 criteria: [32].
The parties further claimed that the sponsor’s mental health provided a compelling reason to waive the Sch 3 requirements. The Tribunal noted the medical evidence showing that the sponsor suffered from an anxiety disorder. While accepting that diagnosis, it considered the evidence lacked detail and did “little to shed light on how the sponsor’s mental health is linked to her relationship with the applicant. It does not address temporary separation…” The Tribunal took the medical and psychological opinions into account in accepting that the applicant experienced anxiety and that she had done so for some time. However, it considered that the evidence provided little insight into the sponsor’s need to have the applicant’s support and the effect on her of a temporary separation. The Tribunal was not satisfied that the sponsor’s health was a compelling reason to waive Sch 3 criteria: [33]-[38].[3]
[3] Nothing was sought to be made of the change in font size in the Reasons at [29]-[32].
The Tribunal observed that there was little evidence provided to demonstrate the level of care the applicant provided to the sponsor and noted that the sponsor’s parents visited them; her mother has been staying recently and her sister resided with her: [39].
The Tribunal did not find any reliable evidence to support the applicant’s claim that he too suffered from depression: [40].
The Tribunal acknowledged that the parties may expect to experience some emotional hardship due to the temporary separation for an extended period of time. However, the Tribunal was not satisfied that in this application emotional hardship amounted to a compelling reason to waive the Sch 3 criteria: [42].
Concerning the sponsor’s claim that if the applicant were forced to leave Australia and return to Iran, she would be torn between accompanying the applicant to Iran and remaining in Australia, the Tribunal noted that the applicant would travel to Iran of her own volition: [44].
Respecting the claims that the applicant could be forced to undertake compulsory military service on return to Iran and that it would be difficult to communicate with the sponsor, the Tribunal found the evidence submitted was general and did not satisfactorily particularise the concerns that the applicant claimed would affect him: [45].
In giving consideration to the applicant’s migration history, the Tribunal had regard to the intention of the Sch 3 waiver not to facilitate persons who had chosen to remain unlawfully in Australia or for those who had lodged unmeritorious applications in order to prolong their stay while awaiting the circumstances which would allow them to make a visa application offshore. Upon consideration of all of the evidence, the Tribunal found that the applicant had not provided any persuasive reason or convincing explanation for remaining unlawfully in Australia. In particular, the Tribunal considered that weight should be given to the lengthy period of time the applicant had remained unlawfully in Australia. It found there was no reason why the applicant could not return home to make his application offshore: [46].
Not being satisfied there were compelling reasons for not applying the Sch 3 criteria the Tribunal found that, in the result, the applicant did not meet cl 820.211(2)(d)(ii) and affirmed the delegates decision: [47]-[49].
Procedural history
On 5 July 2018, an application for judicial review was lodged together with a supporting affidavit. The application comprised of two grounds:
a)Ground 1: The Tribunal misapplied the relevant law regarding whether the Sch 3 criteria should be waived on the basis of a genuine relationship between the applicant and sponsor.
b)Ground 2: There was an insufficient logical or evidentiary basis for the Tribunal to find there were not compelling reasons to waive the Sch 3 criteria.
On 26 July 2018, the first respondent filed a response contending that the Tribunal’s decision was not affected by jurisdictional error and that the application ought be dismissed with costs.
On 7 October 2019, the applicant obtained legal representation.
On 19 March 2020, an amended application was filed and which reformulated the alleged errors of the Tribunal.
The amendment of the grounds of review was not opposed.
Consideration
By the amended application two grounds of review were advanced.
Ground 1 – inflexible application of PAM 3 guidelines
Ground 1 of the amended application reads:
The Tribunal asked itself the wrong question pursuant to cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) or unlawfully confined, fettered or circumscribed its discretion to be satisfied that there were ‘compelling reasons’ for not applying for not applying the criteria in items 3001, 3003 or 3004 of Schedule 3 to the Regulations (the Schedule 3 criteria).
The applicant contends that the Tribunal restricted its understanding of compelling reasons by reference to the Departmental policy contained in the Procedures Advice Manual (PAM). In substance, it was said that the Tribunal erred in construing the policy as explaining or amplifying the intent of the applicable regulations.
The applicant accepted that the Reasons indicate the Tribunal stated:
a)it had paid regard to PAM3, revised from 1 July 2014 in relation to ‘compelling circumstances’ under cl.820.211(2)(ii), which required the focus to be on the conduct of the visa applicant: [20];
b)the provisions were not intended to facilitate persons who fail to comply with their visa conditions, deliberately manipulated their circumstances to give rise to compelling reasons or could leave Australia and apply for a Partner visa outside Australia: [21];
c)recent changes to PAM3 suggested the provision for unlawful non-citizens to successfully apply for a UK 820 visa was only limited: [22].
The applicant acknowledged that the statement in the Reasons at [22] was a correct reference to Pt 8.7 of the policy in PAM3 at that time.
The applicant provided an accurate statement of the applicable legal principles which it is convenient to adopt. The applicable statutory task of an administrative decision-maker is evaluative and discretionary. Relevantly, the decision-maker must reach the state of satisfaction that there are compelling reasons to exercise the discretion.[4]
[4]MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [10]-[13] (Bromberg J).
The phrase ‘compelling reasons’ is not defined in the regulations. It has been held that the ordinary meaning of ‘compelling’ reasons means ‘forceful’ or ‘irresistible’.[5] The Tribunal is permitted to consider a policy in construing a regulation, however, an inflexible application of the policy is to commit jurisdictional error. Further, if the Tribunal relies on policy that differs from or confines the regulation, the Tribunal will fail to answer the question posed by the applicable regulation.[6]
[5]Paduano v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 204, [37] (Crennan J).
[6]Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203, [20] (Lee, Carr and Moore JJ); Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; 132 FCR 93, [42] (French, Sackville and Hely JJ).
In Choi v Minister for Immigration and Border Protection,[7] Allsop CJ addressed in obiter the relationship between the phrase ‘compelling reasons’ in cl 820.211(2)(d)(ii) and the PAM policy, stating:
On a side note, it is notable that Department policy has narrowed the range of factual circumstances falling within the scope of the waiver. In the delegate’s decision for this matter, it was stated that the provisions are “not intended to facilitate persons who can leave Australia and apply for a partner visa offshore”. Rather, it is aimed at persons who, due to involuntary circumstances beyond their control like illness or incapacity, became unlawful non-citizens and were prevented from regularising their immigration status. This seems directly contrary to the initial Explanatory Statement referred to above. Such an approach is also (perhaps implicitly) criticised by Crennan J in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs,[8] stating “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”.
The Explanatory Statement accompanying the introduction of the compelling reasons standard was referred to at [31] of his Honour’s reasons as follows:
. . . the Explanatory Statement for the Migration Regulations (Amendment) 1996 No 75 states that a genuine long-standing relationship may justify waiver because of the hardship which could otherwise result. It also provides that: “The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.” This emphasises the primary role of hardship in the consideration of “compelling reasons”.
[7] [2018] FCA 291, [33].
[8] (2005) 143 FCR 204, [37].
Upon those principles, the applicant submitted that the Reasons demonstrated the Tribunal had simply adopted and applied the standard as stated in the policy in determining whether there were compelling reasons. It was said that the Tribunal’s consideration of the PAM 3 at [20]-[22] indicated it had employed the policy not as a guide but as a basis to construe the meaning of compelling reasons. In particular, it was submitted that the Tribunal’s statement there was limited provision for unlawful non-citizens to apply for a subclass UK 820 visa, suggested the Tribunal had relied on the policy to adopt a higher standard for compelling reasons than was required by the regulations.
For those reasons, the applicant submitted that the Tribunal had applied the PAM policy in a manner that fettered or confined its consideration of the meaning of compelling reasons and had thereby failed to address the question asked by the regulations, instead requiring the applicant to meet a higher standard than those regulations presented.
Contrary to the applicant’s submissions, I consider that the Tribunal demonstrated a correct understanding of the meaning of the phrase ‘compelling circumstances’ for the purposes of the applicable regulation, including that it had regard to the applicable case law.[9] The Reasons make plain that the Tribunal understood the need to consider PAM3, but in my view it did not unlawfully confine itself to the terms of that policy.
[9]Citing MZYPZ v MIAC [2012] FCA 478, [10]; Monakova v Minister for Immigration and Multicultural Affairs [2006] FMCA 849, [27]-[28]; and, Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
I agree that the Tribunal’s reference to the PAM3 policy was a direct reference to cl 820.211(d) and the limited circumstances for unlawful non-citizens to apply for the visa (i.e. those applicants to whom sub cl 820.211(2)(a) and (c) do not apply). However, to say as much does not indicate that the Tribunal was fettered by a proper understanding of the policy. Nor does it suggest that the Tribunal relied on the policy to adopt a higher standard for compelling reasons.
In support of this amended ground, the applicant identified two statements in the Reasons which were said to be indicative of this error.
First, in dealing with the applicant’s claim that his departure from Australia would cause hardship to the sponsor, the Tribunal was not satisfied the sponsor “would not be able to survive” without the support of the applicant: [39]. The applicant submitted that this standard was extraordinarily high and would be nigh on impossible for most applicants and sponsors to satisfy. I agree in the Minister’s submission that this statement must be read in light of the balance of the Reasons at [39] where the Tribunal found that there was “little evidence provided to demonstrate the level of care and support the applicant provides to the sponsor”. It observed that when the sponsor was asked specifically about this, she replied that the applicant “sometimes walks her to class”. In addition, the Tribunal observed that the evidence provided little insight into the sponsor’s need to have the applicant’s support and the effect on her of a temporary separation. The Tribunal concluded that it could not be satisfied that the sponsor’s health was a compelling reason to waive the Sch 3 criteria: [38]. I agree that in light of those findings, the Tribunal’s statement that the sponsor “would not be able to survive without the support of the applicant” should, fairly, not be read as imposing a higher legal standard than ‘compelling reasons’ permits.
Secondly, the applicant pointed to the Tribunal’s conclusion at [46] where it had relied on the PAM3 interpretation of compelling reasons as not providing a vehicle for unlawful non-citizens who had made unmeritorious visa applications to make applications on-shore. On this further basis it was said that the Tribunal had given decisive weight to PAM3 in evaluating the applicant’s failure to provide a reason for being an unlawful non-citizen: [46]. I do not accept this submission. When regard is had to the Reasons as a whole I am not satisfied that the Tribunal simply applied PAM3 policy without regard to the applicable regulation and principles as expounded in the authorities it cited. To the contrary, the Reasons demonstrate that the Tribunal considered the applicant’s immigration history, all of the evidence and the pre and post hearing submissions that were lodged. The Tribunal found that the applicant had not provided any persuasive reason or convincing explanation for having remained unlawfully in Australia. The weight given to this factor was a matter for the Tribunal.
Ground 1 of the amended application is rejected.
Ground 2 – failure to consider all matters as a whole
Ground 2 of the amended application reads:
The Tribunal asked itself the wrong question, and/or denied the applicant procedural fairness, by failing to consider whether the applicant and sponsor’s overall circumstances amounted to “compelling reasons”.
In substance, the applicant contends that the Tribunal failed to consider the entirety of the circumstances of the applicant and his sponsor in determining if compelling reasons existed and had instead assessed only whether each individual reason was in and of itself, compelling.
The applicant submitted the applicable regulation required that the Tribunal be satisfied that there were compelling reasons not to apply – that is to waive – the Sch 3 criteria. Specifically, it was said that the applicant did not need to establish that one reason was compelling, but rather could have satisfied the Tribunal through a combination of reasons. In support of that proposition, reliance was placed upon MZYPZ v Minister for Immigration and Citizenship,[10] where Bromberg J stated:
In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred. (Emphasis added)
The Minister accepted that this was a correct statement of principle.
[10] [2012] FCA 478, [12].
Contrastingly, in the present case, it was said that the Tribunal made findings in relation to each reason put forward by the applicant, but had failed to consider whether together the reasons were compelling. Accordingly, it was submitted that the Tribunal had failed to complete its statutory task to consider the circumstances as a whole.
It may be accepted that an administrative decision-maker must reach a state of satisfaction that there are compelling reasons to exercise the discretion.[11] However, I am not satisfied that the Tribunal undertook a cumulative assessment of the matters which were put forward to support a conclusion that compelling reasons were made out to waive the criteria otherwise to be applied. I accept the applicant’s submission that the Tribunal’s treatment of the reasons as separable is plain from its Reasons:
a)the Tribunal found that “a genuine relationship is not, necessarily in itself, a compelling reason” (emphasis added) [29];
b)the Tribunal found that the long-standing relationship was not alone a compelling reason not to apply the Sch 3 criteria: [32];
c)the Tribunal concluded that the sponsor’s health was not a compelling reason: [38];
d)the Tribunal found that the emotional hardship to the applicant did not amount to a compelling reason: [42];
e)in respect of the difficulties of the sponsor travelling to Iran the Tribunal stated “The Tribunal does not waive Sch 3 criteria on this basis”: [44];
f)the Tribunal was not satisfied the applicant’s military service obligations were “a sufficient reason to compel” the waiver of the criteria: [45].
[11] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [10]-[13].
It may also be accepted that the Reasons contain some indications that the Tribunal was aware of the need to undertake a cumulative consideration of the matters which had been put forward to support a conclusion that the applicable criteria ought to be waived. However, in my view, the Tribunal did not expressly consider the applicant’s circumstances as a whole and I am not prepared to infer that it evaluated the cumulative force of the reasons which he put forward.
Nor do I accept the Minister’s primary submission that having regard to the Tribunal’s findings in relation to the individual factors which had been put forward by the applicant, there was no necessity to undertake a consideration of the cumulative effect of those matters. In those circumstances, I consider that the case is distinguishable from Minister for Immigration and Border Protection v DDK16.[12] The Full Court there accepted that the Minister or a delegate would be under no obligation to undertake a cumulative assessment where individual claims had been rejected. While counsel for the Minister properly submitted DDK16 concerned a Protection visa application, it was contended that an analogy might be drawn with the principle there stated. In my opinion, the analogy might be apt where the decision-maker had rejected the individual claims in their entirety. But that did not occur.
[12] [2017] FCAFC 188, [32]-[34].
The Tribunal’s core function is one of review and the closest that the Tribunal came to undertaking a cumulative evaluation was to express, in the most conclusory form, that it had considered all of the evidence: [46].
For those reasons, I accept that the Tribunal fell into jurisdictional error both by failing to address the question required by the regulations and in failing to consider whether collectively, the applicant’s overall circumstances amounted to compelling reasons for waiver.
As concerns materiality, I agree that the Tribunal may have found that together the matters advanced by the applicant may have constituted compelling reasons for waiver. The Tribunal’s approach of considering whether each reason was sufficient to waive the requirement distracted it from its statutory task to make an overall assessment of the reasons.
I agree that the Tribunal thereby fell into error of the kind which was identified by Judge Barnes in ATT20 v Minister for Immigration:[13]
The Tribunal’s reasons reveal no process of assessment of the weight to be given to any of the various matters relied on by the Applicant, beyond the findings that each such matter individually was not a compelling reason. As explained in MZYPZ, it was necessary for the decision-maker to consider the circumstances as a whole in the context of cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations. The Applicant and his agent raised several matters, not as each necessarily amounting to a compelling reason, but as amounting cumulatively to compelling reasons. This was not considered by the Tribunal.
[13]ATT20 v Minister for Immigration and Boarder Protection [2020] FCCA 499, [79].
The applicant submitted that the error was material to the ultimate decision in that it affected the Tribunal’s consideration when the reasons related to each other. By way of example, it was identified that while the applicant’s representative had submitted that the sponsor’s anxiety would be increased by the applicant having to complete three months of military service in a camp, the Tribunal did not consider this submission in its reasons at all.
The Tribunal’s rejection of the reasons put forward for why compelling reasons existed does not meet the complaint made by Ground 2 that a cumulative consideration of the claims might have been capable of producing a different result.[14]
[14]Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, [34].
Ground 2 of the amended application is made out.
Conclusion
The application should be allowed, the decision of the Tribunal quashed and an order made remitting the application for reconsideration according to law. As the parties were agreed that costs should follow the event, the applicant is entitled to an order for costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 23 April 2020
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