Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 7
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 7
File number(s): SYG 3003 of 2018 Judgment of: JUDGE LAING Date of judgment: 17 January 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Tribunal took into account irrelevant considerations – whether the applicant was afforded procedural fairness – whether the Tribunal misinterpreted the applicable law, misapplied the law to the facts and/or failed to consider a claim or an integer of a claim – application dismissed. Legislation: Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) Schedule 2; cl 820.211, Schedule 3 criterion 3001
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
BYF15 v Minister for Immigration & Border Protection [2016] FCA 774
McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169
Waensila v Minister for Border Protection [2016] FCAFC 32; (2016) 241 FCR 121
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 28 October 2022 Place: Sydney Solicitor for the Applicant Mr N Dobbie (Dobbie and Devine Immigration Lawyers Pty Ltd) Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3033 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARISH KUMAR DHILLON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
17 January 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (partner visa).
BACKGROUND
The applicant is a citizen of India. On 6 May 2016, he applied for a partner visa on the basis of his relationship with his sponsor (Sponsor). At the time of the visa application, the applicant’s last substantive visa had ceased on 15 December 2010.
The Delegate refused the application on 14 September 2016. The Delegate was not satisfied that the applicant met the requirements in cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 1 October 2016, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 20 September 2018.
On 26 September 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion in issue before the Tribunal was cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations, which relevantly provided:
820.211
…
(2) An applicant meets the requirements of this subclause if:
…
(d)in the case of an applicant who is not the holder of a substantive visa…
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The Tribunal also had regard to criterion 3001 of Schedule 3 to the Regulations, which relevantly provided:
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day in relation to an applicant, is:
…
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully…
TRIBUNAL’S DECISION
The Tribunal identified that the issue before it was whether the applicant met the criteria in Schedule 3 of the Regulations, and if not, whether the criteria should be waived due to ‘compelling reasons’ (at [13]).
The Tribunal found that the applicant did not meet criterion 3001. The Tribunal observed that the applicant did not hold a substantive visa at the time of application, with his last substantive visa ceasing on 15 December 2010. The partner visa application was lodged on 6 May 2016, well beyond the 28 day time frame specified in criterion 3001 (at [15]-[16]).
The Tribunal then considered whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal noted that circumstances constituting ‘compelling reasons’ could arise at any time, referencing Waensila v Minister for Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (at [24]).
The Tribunal accepted that the applicant and Sponsor lived together and noted a Relationship Certificate they had registered on 7 July 2016. However, the Tribunal considered that a genuine relationship would not necessarily be a compelling reason for waiving the Schedule 3 criteria. The Tribunal also had ‘concerns as to the genuine nature of the relationship’ in the present case. Ultimately, the Tribunal was not prepared to waive the Schedule 3 criteria on the basis of the applicant’s claimed relationship with his Sponsor (at [34]).
The Tribunal found the applicant’s claims that his parents would not be accepting of the relationship unconvincing in light of other evidence (at [40]). The Tribunal was not persuaded to waive the Schedule 3 requirements on the basis of the applicant’s claim that he would not be supported to make a partner visa application in India but would instead be forced into an arranged marriage (at [40]).
The Tribunal considered that the parties had provided limited evidence to demonstrate that they would experience significant emotional or financial hardship if the applicant were to depart temporarily (at [41]). Whilst the Tribunal accepted that the applicant had formed a bond with the Sponsor’s daughter who would miss him if he returned to India, it considered that there was no convincing evidence of any detrimental impact on her resulting from temporary separation (at [42]). The Tribunal was not persuaded to waive the Schedule 3 criteria on the basis of compelling reasons relating to the Sponsor or her daughter (at [43]).
The Tribunal considered the applicant’s evidence regarding his previous partner (M), with whom he claimed to have a son (Son), to be ‘evasive and unreliable’ (at [46]). Little weight was given to her statements, on account of the applicant’s vagueness as to who wrote them (at [47]).
The Tribunal considered the applicant’s evidence regarding his relationship with his Son at [48]-[59]. It considered that he had been ‘less than truthful’ regarding how and when he became aware of the pregnancy and the birth (at [50]). The Tribunal observed that the applicant was unable to state his Son’s full name and that he had previously been substantially in arrears in child support payments (at [52] and [54]). The Tribunal accepted, however, that the applicant had subsequently become up to date with payments (at [54]).
At [55]-[60], the Tribunal stated:
55.The Tribunal asked the applicant if his parents in India, and with whom he is in regular contact, are aware he has a son, [redacted]. The applicant said he has not told his parents. Asked why not he said this was because he does not want them to think badly of him. He gave evidence that he will tell them if he gets a visa.
56. The Tribunal notes the Department of Health and Human Services records that [his Son] was born prematurely. And as a consequence is vulnerable and has medical needs. Concerns were raised about the parenting capacity of his mother and the ability of his maternal grandmother to supervise his mother. This led to the involvement of the Department of Health and Human services. [His Son] is the subject of a Protection order issued on 18 August 2016 in the Children’s Court. The Documents submitted indicate the applicant is allowed supervised contact with [his Son].
57. Asked about current arrangement and access visits to see [his Son] the applicant said he visits [his Son] every Monday. As well he sometimes gives [M] money. He said he also buys food. He said he takes, “nappies and toys” for the baby. The applicant has provided photographic evidence of himself with [his Son].
58. Significant decisions have been made regarding the care of [his Son]. However there is no evidence that the applicant was considered or recommended as an option for the care of [his Son]. Nor is there any evidence before the Tribunal that the applicant has sought to care for [his Son] above and beyond a weekly visit if he wishes. Whilst the Tribunal accepts the applicant engages in a supervised visit once a week it has significant concerns regarding his ongoing commitment to [his Son] whether in Australia or elsewhere. The Tribunal is troubled that the applicant has not revealed the existence of his son to his parents.
59. The Tribunal has very carefully considered all the evidence regarding the applicant’s relationship with his claimed child [his Son]. This includes a submission that [his Son]’s mother, [M] did not know her father and does not want the same situation for her son. Whilst acknowledging the visits and the gifts of nappies and toys and money, the Tribunal also notes the applicant has not sought to include [his Son] in his sponsor’s family and notes there has been meeting arranged between [his Son] and the sponsor’s daughter with whom the applicant lives. The Tribunal finds the evidence regarding any ongoing commitment by the applicant to his son is unsatisfactory. The Tribunal formed the view that the catch up on child support and visits are more closely linked to the applicant’s desire to obtain a visa than to care for his child whose circumstances are so dire.
60.Furthermore, like the delegate, the Tribunal gives weight to the fact that the applicant was not included as a potential carer for the child [his Son]. No evidence was given or submitted of the impact on [his Son] of a temporary separation if the applicant is required to return to his home country to make his application offshore. The Tribunal finds no compelling reasons to waive the schedule 3 criteria on the basis of the impact on [his Son] or the applicant’s relationship with him.
The Tribunal observed that the applicant and Sponsor had raised concerns that he may not be granted a visa to return if he went to India. The Tribunal was not persuaded that this was a compelling reason for waiving the Schedule 3 criteria (at [61]).
The Tribunal concluded that there was no reason why the applicant could not return to India to make an offshore application (at [62]). Whilst the Tribunal noted that his immigration history indicated that he had prolonged his stay in Australia by challenging decisions through the courts, the Tribunal made no finding as to the merits of those applications (at [64]).
Ultimately, the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the Tribunal found that the applicant did not meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations (at [65]).
The Tribunal therefore affirmed the Delegate’s decision (at [67]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings by an application filed on 23 October 2018. He ultimately pressed the following grounds:
1.The Second Respondent took into accountant an irrelevant consideration.
Particulars:
(i) The Tribunal took into account an irrelevant consideration:
(a)In determining whether the Applicant satisfied subclause 820.211(2)(ii) of the Migration Regulations 1994 (‘the regulations’), the Tribunal took into account an irrelevant consideration, being its own value judgement or its standards personal to the Member of what it considered would be a satisfactory commitment of the Applicant to his son, evident by the following:
(ai)that despite accepting that the Applicant made supervised weekly visits to see his son from a former relationship, and despite the Applicant buying presents and nappies for his son and giving money and food for his support, the Tribunal found that was unsatisfactory evidence of his ongoing commitment to his son, and it also required that the Applicant had to include his son in his sponsor’s family and also arrange a meeting between his son and his sponsor’s daughter.
2.The Second Respondent failed to accord the Applicant procedural fairness.
Particulars:
(i) The Tribunal failed to accord the Applicant procedural fairness:
(a)The Tribunal failed to put to the Applicant that it considered that the Applicant’s catching up on his son’s child support payments and the visits to his son were more closely linked to the Applicant’s desire to obtain a visa, than to care for his child, whose circumstances were dire…
(iv) The Tribunal failed to accord the Applicant procedural fairness:
(a)The Tribunal failed to put to the Applicant that it would give 'little weight' to letters (dated 16 April 2017 and 19 September 2018) from [M], the mother of the Applicant's son, merely because the she did not physically write the letters, despite the Applicant stating that the letters contained what she wanted in the letters…
4.The Second Respondent misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to consider a claim or an integer of a claim.
Particulars:
(i)The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to consider a claim or an integer of a claim.
(a)The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to consider a claim or an integer of a claim made by the Applicant, evident by the following:
(ai)the absence in its reasons of a finding as to whether the length of the relationship between the Applicant and the sponsor, which was claimed to be more than two years at the time of the Tribunal's decision, constituted a 'compelling reason' for the purposes of subclause 820.211 (2)(d)(ii) of Part 820 of Schedule 2 of the Migration Regulations 1994; and or
(aii)its reasons were merely limited to a statement that genuineness should form the basis of all partner visa applications.
Ground 1
Ground 1 contended that the Tribunal took into account an irrelevant consideration by imposing its ‘own value judgment’ or personal standards upon what would be considered to be a satisfactory commitment of the applicant to his Son.
The applicant accepted that findings of unreasonableness, where it is claimed that the decision maker had regard to an irrelevant consideration, are not lightly made. He also accepted that there were no prescribed circumstances in deciding the question of ‘compelling reasons’, although the decision needs to be made within the boundaries of legal reasonableness.
The applicant submitted that those boundaries were transgressed in the present case. In this regard, the applicant relied upon [57] to [59] of the Tribunal’s decision, which are set out above. Those paragraphs referred to the Tribunal’s assessment of the limited role played by the applicant in caring for his Son, as well as to evidence that the applicant had not revealed his Son’s existence to his parents nor sought to include his Son in his Sponsor’s family. The Tribunal concluded that the evidence regarding the applicant’s ongoing commitment to his Son was ‘unsatisfactory’, forming the view that the applicant’s visits and catch up on child support were ‘more closely linked to the applicant’s desire to obtain a visa than to care for his child whose circumstances [were] so dire’. The applicant submitted that this imposed the Tribunal’s own value judgment or undefined personal standards upon what it considered would be a satisfactory commitment. These were were submitted to be irrelevant considerations.
However, I accept the Minister’s submission that in assessing the evidence regarding any ongoing commitment by the applicant as ‘unsatisfactory’, the Tribunal was considering whether the relationship put forward by the applicant was sufficiently persuasive as to amount to a ‘compelling reason’ for the purposes of cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations. It was open to the Tribunal to consider that whether or not the applicant had an ongoing commitment to his Son was capable of bearing on the persuasiveness of the relationship in this regard. In turn, that evaluation was capable of being informed by the child’s relationship (or lack of relationship) with other people of consequence in the applicant’s life.
As was submitted by the Minster, an assessment of whether or not what had been put forward by the applicant was sufficiently compelling necessarily involved some level of subjective evaluation on the part of the Tribunal. As was observed by Bromberg J in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 at [12], the criterion requires an ‘evaluative judgment’. In McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 at [10], Whitlam J explained:
10.… Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment. In the present case the Tribunal considered whether the reasons advanced by the applicant justified not applying the criteria. That approach reveals no error.
The applicant has not demonstrated that the evaluative judgment made by the Tribunal in this case involved any matter that the Tribunal was prohibited from taking into account, or otherwise meets the high threshold for legal unreasonableness.
It follows that ground 1 is unable to succeed.
Ground 2(i)
Ground 2(i) contended that that the applicant was denied procedural fairness because the Tribunal failed to put to him that it considered that his catching up on child support payments and visits to his Son were more closely linked to his desire to obtain a visa than care for his Son.
The Tribunal’s reasoning in this regard was located at [59] of its decision, which is set out above.
At hearing, the applicant clarified that the relevant ‘issue’ in question was not the Tribunal’s assessment of the applicant’s evidence but rather the applicant’s motivations (and in particular whether the applicant was motivated by his visa situation or care for his Son). The applicant contended that in failing to raise that issue with the applicant, the Tribunal breached s 360 of the Migration Act 1958 (Cth) (Act) and fell into a similar species of error to that considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.
However, there are at least two difficulties with the ground as it was ultimately framed.
Firstly, the applicant’s motivations towards his Son were an issue that was raised by the Delegate. In this regard, the Delegate stated at CB 131 (emphasis added):
… I find you have made some effort to create the perception that you have caring responsibilities for this child, so that you may support your claim for a Schedule 3 waiver, however you have failed to provide a Birth Certificate or other evidence of your parentage, evidence that you have sought access, evidence of financial assistance or an explanation of how your temporary absence would impact on your claimed son. I give significant weight to the fact that you were not included for consideration as a potential carer in the DHHS assessment of [the Son’s] care arrangements. I have concerns whether you would continue to visit your claimed son in the future, or maintain or contribute to his well-being and financial future once you have gained residency. Overall, I do not find your temporary absence would cause adverse consequences for [the Son], and this is therefore not a reason to waive the Schedule 3 requirement…
I give significant weight to your immigration history. I note that you have previously been refused a visa on Public Interest Criteria (PIC) 4020 grounds, which resulted in an appeal process that took more than 2 years to finalise. You then lodged an application to the Minister. I note that after your Ministerial application you met and formed a relationship with your sponsor, and you apparently commenced a De Facto relationship 2 months after meeting. I have real concerns to the veracity of your application, relationship, your claims and your intentions. You have provided a receipt from The Department of Births, Deaths and Marriages, for Registration of Relationship, dated 9 June 2016. I do not consider it is the intention of the Schedule 3 waiver to facilitate persons who lodged fraudulent and unmeritorious applications in Australia while awaiting the circumstances which would allow them to make a visa application onshore.
The Tribunal also put to the applicant at hearing whether ‘regardless of today isn’t it your intention to stay in touch with your son?’ (at page 52 of the transcript affidavit in evidence).
I find that the above evidence was sufficient to put the applicant on notice that his motivations regarding his involvement with his Son were in issue and that, in particular, the Tribunal may be concerned that those motivations were potentially affected by the applicant’s desire for an immigration outcome.
The applicant submitted that the Delegate’s decision was influenced by a lack of supporting documents and that further evidence in this regard was subsequently provided to the Tribunal. He submitted that the evidence and issues in question were therefore different before the Tribunal. However, this does not mean that the issue in question was not relevantly raised through the Delegate’s decision. Further, this submission relates to the second difficulty faced by the ground, which is that it was the applicant who put into issue before the Tribunal additional evidence regarding his further child support payments and visits with his Son. The Tribunal was not obliged to inform the applicant that it may make different or additional findings regarding the evidence that he relied upon that was different from that which was before the Delegate: see SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14] and BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [46]. The applicant had, clearly enough, put forward that evidence with a view towards persuading the Tribunal that he intended to provide ongoing support for the reasons he had claimed i.e. because he was trying to ‘take care of [his] son’ (see CB 180). I am not persuaded that the Tribunal was obliged to put to the applicant its reasons for not accepting that the applicant’s motivation in this regard was as claimed prior to coming to its decision.
For the above reasons, ground 2(i) is unable to succeed.
Ground 2(iv)
Ground 2(iv) contended that the Tribunal denied the applicant procedural fairness by failing to put to him that it would give ‘little weight’ to letters on the basis that they had not been physically written by his former partner, M. This was in circumstances where M suffered from a disability. The applicant contended that this resulted in the Tribunal breaching its obligations under s 360 of the Act.
The Tribunal’s reasoning in this regard was at [47] of its decision:
47.Asked who wrote the correspondence provided by [M] as part of his supporting evidence to the Tribunal. The applicant gave a vague response saying that [M] talked to a counsellor who wrote it down for her or maybe a friend did that. For this reason the Tribunal gives little weight to [M]’s statements.
The following exchanges at the Tribunal hearing were relevant to this finding (from page 27 of the transcript affidavit):
TRIBUNAL MEMBER: And now when you were with, what was your previous partner's name?
APPLICANT: [M]
TRIBUNAL MEMBER: Was she on a disability pension?
APPLICANT: Yes. Yes.
TRIBUNAL MEMBER: Why was that?
APPLICANT: I think she's a bit younger than according to her age mental, mental wise, yeah.
TRIBUNAL MEMBER: So she's got some sort of mental - - -
APPLICANT: Yeah.
TRIBUNAL MEMBER: - - - incapacity?
APPLICANT: Yep.
TRIBUNAL MEMBER: When did you discover that?
APPLICANT: When I started living her, with her then slowly slowly we start talking. I think she didn't want to tell me straight away and when we start living together then she explained everything but I, I didn't actually care about that, that she is like that, yeah. It's not - - -
TRIBUNAL MEMBER: I have a letter from her.
APPLICANT: Yep.
TRIBUNAL MEMBER: Who wrote it?
APPLICANT: She, I think she was with her, she told to me that consultant or, like, you know, when you talk to the people, for the mental ones, she has appointment and she talked, explain everything and she wrote it for me, for her, yeah.
TRIBUNAL MEMBER: Accountant.
APPLICANT: Accountant, yeah, that's what she said I think, or maybe a friend or I don't know. She's told me this, yeah. But she told whatever she want to, want in, in the letter, yeah.
I accept that the Tribunal did not put to the applicant that it would give 'little weight' to M’s letters because she did not physically write them. However, I do not accept that this was the reason that the Tribunal afforded them little weight. The reason given for this at [47] was that the applicant had given vague (and therefore unsatisfactory) evidence regarding the provenance of the letters, following questioning by the Tribunal in this regard. Given the evidence extracted above (to the effect that, after some suggestions, the applicant didn’t ‘know’ who wrote them), this construction of the applicant’s evidence was unsurprising. It also occurred within the context of other concerns the Tribunal had in relation to the applicant’s evidence regarding M, which the Tribunal had found variously to be ‘evasive and unreliable’ and ‘less than truthful’ (at [46] and [50]).
The letters were provided by the applicant after the Delegate’s decision. The applicant had no basis for assuming that this evidence would be accepted or accorded the weight that he had intended. I am not persuaded that the Tribunal was obliged to put to the applicant for comment its ‘mental processes’ or ‘provisional views’ in the manner suggested by the applicant under this ground. I accept the Minister’s submission that such a finding would be inconsistent with cases such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
For these reasons, ground 2(iv) is unable to succeed.
Ground 4
Ground 4 contended that the Tribunal misinterpreted the applicable law, misapplied the law to the facts, and/or failed to consider a claim or an integer of a claim. This was said to have occurred because the Tribunal made no finding as to whether the length of the relationship constituted a ‘compelling reason’ and instead limited its reasoning to a statement that genuineness should form the basis of all partner visa applications.
In this regard, the applicant relied upon the following exchanges from page 61 of the transcript affidavit:
TRIBUNAL MEMBER: Now are there any other impacts on you or on [the Sponsor] or the children that you want to tell me about before I call her to give her evidence?
APPLICANT: On other, impact on [the Sponsor]?
TRIBUNAL MEMBER: Ah hmm.
APPLICANT: We, we love each other.
TRIBUNAL MEMBER: Ah hmm.
APPLICANT: Like this will be very hard to, we've been living like together for more than two years so we are really close. We are in love with each other and she's a beautiful person. You don't get nice people in your life and I'm already too old to keep doing this again and again. I want to be settled down and she is the, she is perfect for me.
At [34] of its decision, the Tribunal stated:
34.Whilst the parties claim the relationship is genuine and the Tribunal accepts the parties are living at the same address and has noted the relationship Certificate, as discussed at the hearing, a genuine relationship is not, necessarily in itself, a compelling reason to waive Schedule 3 criteria. This is because genuineness should form the basis of all partner visa applications. On the basis of the evidence before it the Tribunal has concerns as to the genuine nature of the relationship and does not waive the schedule 3 criteria on the basis of the claimed relationship.
The applicant contended that the Tribunal failed to consider or make a finding as to whether the length of the relationship, which was in excess of two years, constituted a ‘compelling reason’.
The Minister submitted that the applicant’s claims regarding the length of the relationship were additionally considered elsewhere in the Tribunal’s reasons, and were dealt with in its findings of greater generality: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47].
On balance, I am persuaded that this is the appropriate inference to be drawn in the present case.
The Tribunal was, clearly enough, aware of the length of the relationship. It had regard to the Relationship Certificate regarding the relationship, which was registered on 7 July 2016 (more than two years previously) (at [9], [28] and [34]). The Tribunal had regard to evidence that the couple had met in August 2015 (at [27] and [33]). The Tribunal also considered evidence that the applicant had resided at his Sponsor’s family home for ‘an extended period’ (at [28]) and that he ‘continue[d] to live with her’. At [34], the Tribunal accepted that the applicant and his Sponsor were living together. Read in the context of the Tribunal’s earlier reasoning, the Tribunal appears to have accepted that the couple had at least some form of relationship (and had lived together) for some time.
However, it is also apparent that the Tribunal did not find the relationship sufficiently compelling, notwithstanding the period of time that they had been or lived together. Even if the relationship were genuine, the Tribunal considered that this would not necessarily be a compelling reason as genuineness should form the basis of all partner visa applications. Further, the Tribunal expressed ‘concerns as to the genuine nature of the relationship’. Overall, the Tribunal found the relationship insufficiently compelling to waive the Schedule 3 criteria (at [34]). This was notwithstanding evidence the Tribunal had acknowledged at [9], [27]-[28] and [33]-[34]) regarding the length of the relationship.
It follows that I do not accept, on the facts, that the Tribunal made no finding as to whether the length of the relationship constituted a ‘compelling reason’ and instead limited its reasoning to a statement that genuineness should form the basis of all partner visa applications.
Ground 4 is therefore unable to succeed.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
56 I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 17 January 2023
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