Fiefia v Minister for Immigration
[2020] FCCA 2941
•30 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FIEFIA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2941 |
| Catchwords: MIGRATION – Subclass 820 visa – decision by the delegate of the Minister of Immigration and Border Protection to not grant Subclass 820 visa – failure to satisfy criteria 3001 of Schedule 3 of Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal’s decision was effected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider compelling reasons – length of relationship – consideration of departmental policy – difficulty with fertility – ability to conceive – failure to consider period of separation – active intellectual engagement – failure to consider consequences of separation -– application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 137L, 366A, 473DD. Migration Regulations 1994 (Cth) Schedule 2, clause 820.211; Schedule 3, criterion 3001. |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 Minister for Immigration and Ethnic Affairs v Wu Shan Liang 91996) 185 CLR 259 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Minister for Home Affairs v Omar [2019] FCAFC 188 Hands v Minister for Immigration and Border Protection (2019) 364 ALR 423 BAL19 v Minister for Home Affairs [2019] FCA 2189 |
| Applicant: | SEINI IVA FIEFIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2724 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 8 May 2020 |
| Date of Last Submission: | 8 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Krohn |
| Solicitors for the applicant: | Erskine Rodan & Associates |
| Counsel for the respondents: | Mr Hosking |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 14 December 2016 and as amended on 17 August 2017, 20 April 2020 and 21 April 2020 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2724 of 2016
| SEINI IVA FIEFIA |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of the Minister for Immigration and Border Protection’s delegate (‘the Minister’) to refuse to grant the applicant a Subclass 820 visa (‘the visa’).
By a further amended application filed on 21 April 2020,[1] the applicant raised five grounds of review and argues that the Tribunal’s decision is effected by jurisdictional error.
[1] Applicant’s amended initiating application filed on 21 April 2020.
Background
The background is set out in the Minister’s written submissions which are summarised below.[2]
[2] First respondent’s outline of submissions filed 7 August 2017.
The applicant is a citizen of Tonga, arriving in Australia on a Tourist (Class TR) (Subclass 676) visa, which expired on 17 February 2012.[3]
[3] First respondent’s outline of submissions filed 7 September 2017 at paragraph 3; see also court book page 146.
On 23 May 2013, the applicant applied for:
a)a Partner (Temporary) (Class UK) (Subclass 820) visa; and
b)a Partner (Residence) (Class BS) (Subclass 801) visa.[4]
[4] First respondent’s outline of submissions filed 7 September 2017 at paragraph 4.
The applicant was in a relationship with an Australian citizen, Mr Felekoni Paea, who was her sponsor.[5]
[5] First respondent’s outline of submissions filed 7 September 2017 at paragraph 5; see also court book page 27.
At the relevant time, clause 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) provided that a primary criterion for the grant of a Subclass 820 visa was that at the time of the application for the visa that:
(1)The applicant:
(a)…
(b)meets the requirements of subclause (2), (3),(4), (5), (6), (7), (8) or (9).
(2)An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen …; and
(ii)…
(b)…
(c)the applicant is sponsored:
(i)if the applicant’s spouse … has turned 18, by the spouse …; or
(ii)…
(d)in the case of an applicant who is not the holder of a substantive visa – either:
(i)the applicant:
(A) …
(B) Satisfies Schedule 3 criterion 3002;or
(ii)the applicant satisfied Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.[6]
[6] First respondent’s outline of submissions filed 7 September 2017 at paragraph 6.
It is common ground that at the time of her application, the applicant did not hold a substantive visa and did not hold a visa referred to in clause 820.211(2)(d)(i) of the Regulations. It is also common ground that at the time of her application, the applicant did not satisfy any of the requirements of sub-clauses (3) to (9) of clause 820.211.[7]
[7] First respondent’s outline of submissions filed 7 September 2017 at paragraph 7.
The issue in this case therefore is whether the applicant satisfied clause 820.211(2)(d)(ii), that is, whether she satisfied clause 3001 of Schedule 3 to the Regulations, relevantly provided at the time in question:
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day in relation to an applicant, is:
(a)…
(b)..
(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.[8]
[8] First respondent’s outline of submissions filed 7 September 2017 at paragraph 8.
There was over one year between the expiry of the applicant’s substantive visa, namely 17 February 2012, and the date on which she applied for a partner’s visa being 23 May 2013.[9] A delegate of the Minister refused the applicant’s application for a Subclass 820 visa on 24 October 2014 on the basis that the applicant did not satisfy the requirements of clause 820.211(2)(d)(ii). This was because she did not satisfy the Schedule 3 criterion 3001 and there were no compelling reasons for not applying that criteria.[10]
[9] First respondent’s outline of submissions filed 7 September 2017 at paragraph 9.
[10] First respondent’s outline of submissions filed 7 September 2017 at paragraph 10.
Procedural History
This application has a lengthy procedural history.
On 7 November 2014, the applicant sought a review of the delegate’s decision by the Tribunal.[11] The applicant’s representative provided written submissions to the Tribunal on 4 December 2014.[12] On 12 January 2016, the Tribunal handed down its decision, affirming the delegate’s decision.[13]
[11] Court book pages 150 to 160.
[12] Court book pages 232 to 240.
[13] Court book pages 246 to 252.
On 12 January 2015, the Tribunal affirmed the delegate’s decision.
On 9 March 2016, the applicant applied to this court for an extension of time in which to seek judicial review of the Tribunal’s decision.[14] By consent, this court ordered that the matter be remitted to the Tribunal.[15]
[14] Court book pages 257 to 262.
[15] Court book pages 283 to 284.
On 12 July 2016, the applicant’s representative provided written submissions to the Tribunal (differently constituted).[16] The applicant was invited to appear before the Tribunal on 3 November 2016 to give evidence and present arguments.[17] On 28 October 2016, the applicant’s representative provided further written submissions to the Tribunal.[18] The applicant appeared before the Tribunal on 3 November 2016 together with her representative and an interpreter.[19]
[16] Court book pages 310 to 317.
[17] Court book page 375.
[18] Court book pages 390 to 392.
[19] Court book pages 402 to 403.
On 15 November 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Subclass 820 visa.[20]
[20] Court book pages 408 to 418.
Tribunal’s decision
The Tribunal set out the background to this application. It noted that the applicant and the sponsor had met on 19 November 2011, committed to spend their lives with each other on 28 December 2011 and then were married on 28 January 2012.[21]
[21] Court book page 410 at paragraph 11.
The Tribunal further noted that it accepted the claims made by the applicant and the sponsor that they were in a ‘genuine and continuing spousal relationship’.[22] The Tribunal then went on to consider whether the applicant met the Schedule 3 criteria, noting that at the time of application, the applicant was not the holder of a substantive visa.[23]
[22] Court book page 410 at paragraph 13.
[23] Court book page 410 at paragraphs 14 to 15.
Relevantly, the Tribunal noted that as it had concluded that the applicant did not meet the relevant Schedule 3 criteria, it was required to consider whether there were compelling reasons for not applying that criteria.[24] The Tribunal noted that the term ‘compelling reasons’ is not defined.[25] However, it noted that the stated reasons needed to be ‘sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to a positive finding in favour of waiving the required criterial’.[26] The Tribunal also noted that the factors which might constitute compelling reasons could arise at any time, including after the making of the application. Moreover, the Tribunal noted that it had considered the kinds of reasons included in the Explanatory Statement and in the Department’s Procedures Advice Manual.[27]
[24] Court book page 410 at paragraph 19.
[25] Court book page 411 at paragraph 20.
[26] Court book page 411 at paragraph 20.
[27] Court book page 411 at paragraph 21.
The Tribunal then went on to consider:
a)the applicant’s immigration history;[28]
b)the circumstances in which the applicant and the sponsor met;[29]
c)the reasons for the delay in the applicant applying for the visa;[30]
d)the parties’ financial position and the strain on their financial resources if the applicant were required to return to Tonga to make an application for a partner visa;[31]
e)the length of the parties’ relationship and whether there are any children of that relationship;[32]
f)health issues and care needs of each of the parties, including fertility difficulties;[33]
g)the impact on each of the parties and their relationship, if the applicant were required to return to Tonga to make an application for a partner’s visa;[34] and
h)considered the reasons advanced by the applicant as to why the Schedule 3 criteria ought not apply to her application but concluded that the applicant did not meet the criteria for the partner visa and affirmed the delegate’s decision.[35]
[28] Court book page 411 at paragraph 22.
[29] Court book page 411 at paragraphs 22 to 23.
[30] Court book page 411 at paragraphs 23 and 25.
[31] Court book page 411 at paragraphs 25 to 29.
[32] Court book page 412 at paragraphs 30 to 31.
[33] Court book pages 412 to 414 at paragraphs 32 to 39.
[34] Court book pages 414 to 415 at paragraphs 41 to 48.
[35] Court book pages 415 to 416 at paragraphs 49 to 54.
Grounds of review
The applicant submits that the Tribunal’s decision is affected by jurisdictional error and raises five grounds of review.
It is submitted on behalf of the Minister that none of the grounds advanced ought be accepted and that the application ought be dismissed with costs. For the reasons which follow I find that none of the grounds of review are made out.
Ground One
Ground one of the applicant’s application was stated as follows:
The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal applied the wrong legal test in relation to ‘compelling reasons’.
Particulars
(a)The Tribunal erred in imposing a requirement of ‘significant hardship’.
(b)The Tribunal erred in construing ‘compelling reasons’ to mean that the circumstances must be exceptional or unusual.[36]
[36] Applicant’s amended initiating application filed on 21 April 2020 page 3.
In support of this ground the applicant submits that in considering whether there were compelling reasons, the Tribunal applied the incorrect test, namely a more stringent test than that specified in the legislation.[37]
[37] Applicant’s outline of submissions filed 17 August 2017 page 2 at paragraph 8.
It was submitted for the applicant that the test for ‘compelling circumstances’ requires that ‘something about the individual’s circumstances is sufficiently persuasive for the decision-maker to determine that the schedule 3 criteria should not apply in that case, so as to relieve the applicant of the obligation to leave Australia to lodge an offshore application…’[38]. The applicant therefore submitted that the focus on whether the individual’s circumstances were unusual or exceptional was an error by the Tribunal, in circumstances where the Tribunal only needed to be satisfied that the circumstances were compelling.[39]
[38] Applicant’s outline of submissions filed 17 August 2017 page 2 at paragraph 10.
[39] Applicant’s outline of submissions filed 17 August 2017 page 2 at paragraph 10.
Moreover, it was submitted that the legislative framework pursuant to which this decision was made, did not require the establishment of ‘hardship’ as part of the consideration of whether compelling circumstances existed. Rather, the existence of hardship may be one of the situations in which compelling circumstances may be found to exist.[40]
[40] Applicant’s outline of submissions filed 17 August 2017 page 3 at paragraph 11.
Nor does the statutory test require that the applicant’s circumstances are ‘exceptional or unusual’ to be compelling.[41] It is submitted for the applicant that Parliament has applied a test of ‘exceptional circumstances’ in other areas of the Migration Act 1958 (Cth) (‘the Act’).[42] It was further submitted that the use of the term ‘compelling reasons’ rather than ‘exceptional’ circumstances in clause 820.211(2)(d) was intentional. Therefore, there is no requirement that the reasons required for compelling circumstances to be established to also be exceptional or unusual.[43]
[41] Applicant’s outline of submissions filed 17 August 2017 page 2 at paragraph 10.
[42] For example, sections 137L, 366A, and 473DD Migration Act 1958 (Cth).
[43] Applicant’s outline of submissions filed 17 August 2017 page 2 at paragraph 10.
It was submitted that the proper test was whether the applicant’s reasons were enough to convince the Tribunal to waive the Schedule 3 requirements.[44] To the extent that the Tribunal applied additional criteria to its inquiry, it was in error.
[44] Applicant’s outline of submissions filed 17 August 2017 page 3 at paragraph 13.
In support of this submission, the applicant also relied upon a transcript of the proceedings before the Tribunal, which is found at annexure A to the affidavit of Erskine Hamilton Rodan affirmed 3 April 2020. In particular, the applicant relies upon the following comments made by the tribunal member in introducing the task before it:
The law says the schedule 3 criteria will be applied unless there are compelling reasons not to apply them. The law doesn’t precisely explain or specify what a compelling reason is. A way to think about a compelling reason, it’s a situation where there would be significant hardship to yourself or to other people that are important to you if the schedule 3 criteria were imposed. That’s because the application criteria would mean that you would have to depart from Australia and lodge the visa application...[45]
[45] Affidavit of Erskine Hamilton Rodan affirmed and filed on 3 April 2020 at annexure A, page 5.
I am not persuaded that the extract from the transcript alters the analysis set out below as to whether the Tribunal erred in applying the wrong test in determining whether there were compelling reasons. The transcript does not form part of the Tribunal’s reasons for decision. Moreover, if regard is to be had to the transcript, regard must be had to the whole of the transcript and not selective parts of it. In any event, it should be noted that, even in the extract above, the Tribunal did not say that this was the only circumstance in which compelling reasons could be established. Rather, the Tribunal was clearly giving an example of what might amount to compelling circumstances. In any event, I note that the Tribunal went on to say:
Now, there’s been a relatively recent case in the Federal Court of Australia which has clarified the way a decision maker such as this tribunal should approach its consideration of whether there are compelling reasons. That case has made it clear that a decision-maker should not restrict their focus to the circumstances at the time of the application…
That case made it clear that a decision-maker should consider all relevant reasons that are put before it by the applicant. Today it is important that you make me aware of all reasons that you would consider to be a compelling reason to modify the schedule 3 criteria, which if it was applied would mean that you would have to leave Australia and apply for the visa.[46] (emphasis added)
[46] Affidavit of Erskine Hamilton Rodan affirmed and filed on 3 April 2020 at annexure A, page 6.
In response, it is submitted that a fair reading of the Tribunal’s reasons, disclose that the Tribunal indeed applied the correct test. As noted by the Tribunal’s decision record, the term ‘compelling reasons’ is not defined.[47] However, also as noted by the Tribunal, that term has been the subject of judicial consideration. The Tribunal specifically referred to a number of cases in which that term was considered, including some now relied upon by the applicant.[48]
[47] Court book page 411 at paragraph 20.
[48] Court book page 411 at paragraph 20.
In Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285, the Full Court of the Federal Court held:
There are … shades of differences between the various dictionary definitions of ‘compelling’. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.[49]
[49] Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285, [24] (Bromberg J).
Moreover, in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, Bromberg J said the following in relation to the meaning of ‘compelling reasons’:
…“compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).
As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [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 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.[50]
[50] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [10] to [12] (Bromberg J); citing Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211, [39] (Crennan J); also citing McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096, [10] (Whitlam J).
In addition, and importantly, after considering various authorities on this point, Bromberg J went on to say:
What each of those statements of principle show is that if jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at.[51]
[51] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [17] (Bromberg J).
In considering whether there is a jurisdictional error made out in this case, the court therefore must have regard to whether there was an error in the process by which the Tribunal reached its conclusions as to its state of satisfaction that there were no compelling reasons not to apply the criteria. It is not sufficient to conclude that if the court were to consider the matter it would have come to a different conclusion.
It is evident from a fair reading of the Tribunal’s reasons, that it was aware of the statutory task required of it to determine whether there were compelling reasons not to apply the Schedule 3 criteria to the applicant.[52]
[52] Court book page 410 at paragraphs 15 and 19.
The Tribunal was aware of the judicial interpretation given to the phrase ‘compelling reasons’.[53] The Tribunal was also aware of the types of reasons given as examples which might fall within the concept of ‘compelling reasons’ contained in the Explanatory Statement and in Department’s Procedures Advice Manual.[54]
[53] Court book page 411 at paragraph 20.
[54] Court book page 411 at paragraph 21.
The Tribunal then went on to consider the matters raised by the applicant in support of her claim that there were compelling reasons not to apply the Schedule 3 criteria to her. It concluded that none of those reasons amounted to a compelling reason. The Tribunal also considered whether the reasons provided by the applicant cumulatively amounted to a compelling reason not to apply the Schedule 3 criteria to her and concluded that they did not.[55]
[55] Court book page 415 at paragraph 52.
It is submitted that to the extent that the applicant points to the use of the terms:
a)‘severe financial hardship’;[56]
b)‘severe hardship’;[57]
c)‘degree of hardship or adverse consequences’;[58]
the applicant is taking these phrases out of context and inviting the court to adopt an approach contrary to that advocated for in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.[59]
[56] Court book page 411 at paragraph 26; see also page 415 at paragraph 51.
[57] Court book page 413 at paragraph 45.
[58] Court book page 415 at paragraph 52.
[59] First respondent’s outline of submissions filed 7 September 2017 page 7 at paragraph 38.
In the oft quoted extract from that case,[60] the High Court said, after referring to Collector of Customs v Pozzolanic (1993) 43 FCR 280:
In that case, a Full Court of the Federal Court … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker … the court continued:
‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
[60] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Minister submitted that in referring to the degree of hardship, the Tribunal was simply indicating that the degree of hardship was not such as to provide a compelling reason. It was not substituting a different test.[61] Similarly, it was submitted that when the Tribunal was comparing the applicant to others in a similar situation, it was not applying a different test to determine whether or not compelling reasons existed, but rather it was explaining the factors which it was having regard to in determining whether the reasons provided fell within the concept of compelling reasons.[62]
[61] First respondent’s outline of submissions filed 7 September 2017 page 7 at paragraph 39.
[62] First respondent’s outline of submissions filed 7 September 2017 page 7 at paragraph 40.
There is much force to this submission, when the Tribunal’s reasons are read in their entirety.
As noted by Bromberg J in MZYPZ, the reasons must be ‘sufficiently convincing to move the decision-maker to make a positive finding…’.[63] A comparison between how the factors raised by the applicant as relevant considerations impact on the applicant, as compared to other applicants in a similar position, may well be a matter which goes to the Tribunal’s state of satisfaction. It is clear from a fair reading of the Tribunal’s reasons, in the sense contemplated by the court in Wu Shan Liang,[64] that by referencing these comparisons, the Tribunal was doing no more than explaining its reasons for reaching the conclusion that the reasons pointed to by the applicant did not, either individually or cumulatively, satisfy it that there were compelling reasons not to apply the Schedule 3 criteria.
[63] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [10] (Bromberg J).
[64] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
For these reasons, ground one of the applicant’s application is not made out.
Ground two
Ground two of the applicant’s application was stated as follows:
The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal erred in finding that the length of the applicant and her husband’s relationship could not itself form a compelling reason not to apply the schedule 3 criteria.[65]
[65] Applicant’s amended initiating application filed on 21 April 2020 page 3.
It is common ground that at the time of the Tribunal’s decision, the applicant and her husband had been married for five years. The Tribunal said in its decision record:
The tribunal accepts the parties have been in a relationship since their marriage in February 2012, which is a period of over four and a half years. The tribunal has considered the length of the relationship and finds this is in excess of the two year period which is frequently used as an indicator that a couple are in a long term relationship. Whilst the length of the parties’ relationships dos not in and of itself, in the view of the tribunal constitute a compelling reason to not apply the Schedule 3 criteria, it does consider it to be a reason of some significance and something to be considered in conjunction with other reasons put before it in the current matter.[66]
[66] Court book page 412 at paragraph 31.
It is submitted that the Tribunal erred by finding that a long term relationship could not itself constitute compelling reasons.[67] The applicant refers to the Explanatory Statement to 1996 amendments to the Regulations, by which clause 820.211(2)(d) was inserted, relevantly provide:
[67] Applicant’s outline of submissions filed 17 August 2017 page 6 at paragraph 30.
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. 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. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a ‘strongly compassionate’ nature such as:
- where there are Australian-citizen children from the relationship; or
- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived. (emphasis added)[68]
[68] As extracted in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 at page 124.
It was submitted that the Explanatory Statement makes it clear that the identified circumstances are examples of ‘compelling reasons’ to waive the Schedule 3 criteria. In those circumstances, it is submitted that the finding that the length of the relationship in this case, could not of itself constitute compelling circumstances meant that the Tribunal’s decision was affected by jurisdictional error.[69]
[69] Applicant’s outline of submissions filed 17 August 2017 page 6 at paragraph 32.
I am not persuaded by this submission. When one considers the explanatory statement in its entirety, including the words emphasised above, it is clear that not every circumstance in which an applicant has been found to have been in a long term relationship will result in a finding that compelling circumstances have been found to exist. Rather, it is clear that the length of the relationship between the parties and indeed a long term relationship is one situation which may, but does not necessarily, constitute a compelling reason to waive the requirements of Schedule 3.
As is clear from the Tribunal’s decision record, the Tribunal gave it due regard and noted that the length of the parties’ relationship was a ‘reason of some significance and something to be considered in conjunction with other reasons put before it in the current matter’.[70] Similarly, the Tribunal again referred to the length of the parties’ relationship and their genuine and loving relationship with one another at [49] of the decision record where it noted that ‘these are reasons the tribunal has placed some weight upon.’[71]
[70] Court book page 412 at paragraph 31.
[71] Court book page 415 at paragraph 49.
There is nothing in the Explanatory Statement which support a conclusion that the comments made by the Tribunal evidence an error of the kind asserted by the applicant.[72] The Tribunal properly had regard to the length and nature of the applicant’s relationship and weighed that factor with others before it in coming to its conclusion about whether compelling circumstances existed in this case to waive the Schedule 3 criteria. The conclusion reached was reasonably open to the Tribunal. At its highest, this ground seeks the court to engage in impermissible merits review.
[72] Court book page 412 at paragraph 31.
Consequently, ground two is not made out.
Ground three
The applicant’s application sets out ground three as follows:
The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to have regard to the departmental policy.[73]
[73] Applicant’s amended initiating application filed on 21 April 2020 page 3.
It is submitted that whilst a Tribunal is not required to inflexibly follow departmental policy, such policy should be applied unless there are sound reasons for departing from it.[74]
[74] Applicant’s outline of submissions filed 17 August 2017 page 6 at paragraph 33.
In this case, the applicant concedes that the relevant policy which applied at the time of the applicant’s application is the Department’s Procedures Advice Manual (‘PAM3’).[75]
[75] First respondent’s written submissions filed 7 September 2017, annexure A.
The applicant refers to and relies upon the following statement in the PAM3:
The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.[76]
[76] Transcript of proceedings page 21.
Moreover, the PAM3 goes on to say:
As a general rule, the existence of a genuine spouse or defacto relationship between the applicant and the sponsor and partner and the hardship suffered from the separation if the applicant were to leave, are not in themselves compelling reasons not to apply the schedule 3 criteria.[77]
[77] First respondent’s written submissions filed 7 September 2017, annexure A.
It is submitted that by its reasoning at [46] and [48] of the decision record, the Tribunal effectively applied a universal rule rather than considering the specific facts of the case before it.[78] It is submitted that in order to succeed on this ground, the applicant must show that the Tribunal ‘used that part of PAM3 in a way that … prevented itself from having regard to the circumstances of this case.’[79]
[78] Court book page 414 at paragraph 46; see also page 415 at paragraph 48.
[79] Transcript of the proceedings page 38.
A fair reading of the Tribunal’s reasons discloses that in addition to having regard to PAM3, and the Explanatory Statement, the Tribunal did consider the applicant’s and the sponsor’s individual circumstances before concluding that compelling reasons did not exist to waive the Schedule 3 criteria.
So much is evident from the Tribunal’s decision record from paragraph [21] onwards. As stated, the applicant relies upon the Tribunal’s comments at paragraph [46] and [48] of the decision record to support this ground.[80] The comments made at paragraph [46] to which the applicant refers, must be read in the context of the opening part of that paragraph. The Tribunal stated as follows:
With regard to the emotional distress that would be experienced by the parties if they were separated, by the sponsor remaining in Australia and the applicant going offshore to lodge an offshore Partner visa application, the tribunal accepts they might find it difficult for a period of time. However, the tribunal notes that all applicants who apply for offshore Partner visas must wait while the visa application is processed and tolerate some level of physical separation. Couples often keep in contact and provide support to each other through holiday visits, frequent telephone, electronic or other means of contact. The tribunal notes an off-shore application for a Partner visa takes a limited period of time to be processed and does not in and of itself result in the permanent separation of the parties and a breakdown in their relationship.[81]
[80] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraphs 9 and 10.
[81] Court book page 414 at paragraph 46.
When viewed in its entirety and against the background of the matters discussed at paragraphs [41] to [45],[82] I do not accept the applicant’s submission that a fair reading of the Tribunal’s reasons indicate that the Tribunal applied a ‘general rule’ that hardship suffered if the applicant were to leave Australia and apply for her visa off shore is not a compelling reason. Rather, it is clear from the Tribunal’s reasons, that it accepted that the parties might find this difficult and would need to tolerate some level of physical separation. Ultimately, the Tribunal had regard to steps which could be taken to mitigate these difficulties and concluded that in the case of the applicant and the sponsor, a temporary separation did not provide a compelling reason to waive the Schedule 3 criteria.
[82] Court book page 414 at paragraphs 41 to 45.
For completeness, the conclusions reached at paragraph [48] must be read in the context of the Tribunal’s discussion of the applicant’s claims in relation to the hardship the parties would face as a result of their separation.[83]
[83] Court book pages 414 to 415 at paragraphs 41 to 48.
For each of these reasons, ground three is not made out.
Ground four
The applicant’s fourth ground is set out as follows:
The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to give proper consideration to the applicant’s submission that the interference with the efforts of her and her husband to conceive a child constituted a compelling reason not to apply the schedule 3 criteria.[84]
[84] Applicant’s amended initiating application filed on 21 April 2020 page 3.
The essence of the applicant’s submission in relation to ground four, was that the period of separation resulting from the application of the Schedule 3 criteria would potentially prevent the couple from conceiving a child and that this was a compelling reason to waive the Schedule 3 criteria.[85]
[85] Applicant’s outline of submissions filed 17 August 2017 pages 7 to 8.
It was further submitted that other than focusing on the medical aspects of the applicant’s infertility, the Tribunal did not properly consider this aspect of her claim.[86] It is submitted for the applicant that this failure to deal with a claim, or alternatively, the Tribunal misunderstanding the applicant’s claim, amounts to a failure to carry out its statutory task and therefore amounts to a jurisdictional error.[87] In support of this aspect of ground four, the applicant in oral submissions referred to the fact that there was evidence before the Tribunal about a condition that the applicant had which may have affected her fertility.[88] It is submitted that the fact that the Tribunal did not refer to these test results is indicative of the Tribunal’s failure to properly grapple with the claims made relating to the impact on the applicant’s ability to conceive.[89]
[86] Applicant’s outline of submissions filed 17 August 2017 at paragraphs 41 to 43.
[87] Applicant’s outline of submissions filed 17 August 2017 paragraphs 44 to 45; see also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].
[88] Transcript of the proceedings pages 27 to 28; see also court book page 358.
[89] Transcript of the proceedings page 28.
In response, it is submitted that the Tribunal did consider the applicant’s claim that if she were to return to Tonga it would reduce her chances of getting pregnant. As noted in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593:
… The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidenced advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[90]
[90] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] to [47].
The Tribunal decision record makes it clear that the Tribunal was aware of the applicant’s claims that she suffered fertility issues and that she had experienced difficulties in falling pregnant since the parties married in 2012.[91] The Tribunal relevantly noted:
The applicant told the tribunal starting a family is a priority for the parties and that a period of separation, if she were to return to Tonga for a period of time, would reduce her chance of falling pregnant. … Mr Rodan submits that if the applicant is forced to return to Tonga it would completely eradicate the possibility of the parties being able to start a family in the foreseeable future…[92]
[91] Court book page 413 paragraph 36.
[92] Court book page 413 paragraph 36.
At paragraph 37, the Tribunal notes the reasons given for why the applicant and the sponsor had not actively pursued fertility treatment to date and that they would not be able to save for the necessary treatment if the applicant were to return to Tonga.[93]
[93] Court book page 413 paragraph 37.
The Tribunal relevantly noted that the applicant was not currently engaged in fertility treatment and that it did not accept that this was adequately explained by the applicant and the sponsor’s financial constraints.[94] It therefore concluded that it was ‘not satisfied the applicant has established treating her infertility condition is a current priority for the parties.’ [95]
[94] Court book page 414 paragraph 39.
[95] Court book page 414 paragraph 39.
It is against this finding that the Tribunal then went on to say that it had considered the ‘applicant’s health and fertility difficulties and is not, on the basis of the evidence before it, satisfied that the sponsor’s health conditions and fertility difficulties provide a compelling reason to not apply the Schedule 3 criteria.’ [96]
[96] Court book page 414 at paragraph 40.
In relation to the submission that the failure to refer to the test results referred to above is evidence that that it did not consider this aspect of the applicant’s claim, I note that the test results were undertaken over two years prior to the Tribunal’s decision and related to a treatable condition.[97] I accept the Minister’s submission, therefore, that nothing turns on the absence of any reference to that document in the Tribunal’s reasons for decision.
[97] Transcript of the proceedings pages 40 to 41.
When viewed in its context, it is clear that the Tribunal was aware of the claim that if required to return to Tonga, this would potentially limit the applicant’s ability to get pregnant. The Tribunal considered that but concluded on the basis of the totality of the evidence before it that it was not satisfied that this amounted to a compelling reason to grant a waiver.
On a fair reading of the Tribunal’s reasons for decision, the Tribunal did consider the applicant’s claim that a return to Tonga would impact her ability to get pregnant. For each of these reasons, ground four is not made out.
Ground five
The applicant’s fifth ground is set out as follows:
The decision of the Tribunal was affected by jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a)Further to Grounds 3 and 4, the Tribunal failed to consider how long may be the separation of the Applicant and her sponsor if she were required by the Tribunal to leave Australia and apply for a Partner visa from outside Australia;
(b)Further to Particular (b)(sic), the Tribunal did not consider with an active intellectual engagement the consequences to the Applicant and her sponsor, including financial burdens and effects on their health, relationship and prospects of having children, if she were required by the Tribunal to leave Australia and apply for a Partner visa from outside Australia.[98]
[98] Applicant’s amended initiating application filed on 21 April 2020 page 3.
Ground five asserts that the Tribunal failed to take into account relevant considerations. It is common ground that the Tribunal is required to consider all relevant considerations. It is also common ground that consideration of a relevant matter requires an active intellectual engagement with the issue. As recently noted by the Full Court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188:
… As Robertson J stated in DOB18 at [190] (with whom Logan J agreed), “the nature and content of submissions made to the Minister” in support of a revocation request … is relevant. There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.
The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error …[99]
[99] Minister for Home Affairs v Omar [2019] FCAFC 188 at [40] to [41]. Cases referred to excluded.
The first aspect of this ground is that the Tribunal failed to consider the duration of any absence that the applicant would have to endure from her sponsor if required to return to Tonga whilst applying for a partner visa.[100] Moreover, it is asserted by the applicant that the Tribunal failed to consider the consequences to the applicant and her sponsor if she were required to apply for a partner visa from offshore.[101]
[100] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 18.
[101] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 19.
It is further submitted for the applicant that the Tribunal failed to identify the period of time during which the applicant and the sponsor would be separated if the applicant had to return to Tonga.[102]
[102] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 21.
It is submitted by the Minister that this ground is not made out for the following reasons:
a)there was no obligation on the Tribunal to make a finding about the precise period of time for which the applicant and the sponsor would be separated if the applicant were required to return to Tonga to apply for a partner visa;[103]
b)the applicant did not identify in any of her submissions any period of separation which would occur if she were required to leave the country to apply for a partner visa off shore, nor was there any material before the Tribunal upon which a finding about this could have been made;[104]
c)this is not a case in which there was an obligation on the Tribunal to make inquiries about the duration of any absence from Australia if the applicant were required to return to Tonga to apply for a partner visa;[105] and
d)in any event, it is clear from the Tribunal’s reasons that the Tribunal formed the view that any separation would be ‘temporary’[106] and only for a ‘limited period of time’.[107] Therefore, it did have regard in a general sense to the possible length of any separation consequent upon the applicant having to leave Australia to apply for a partner visa.
[103] First respondent’s supplementary outline of submissions filed 27 April 2020 at paragraph 12.
[104] First respondent’s supplementary outline of submissions filed 27 April 2020 at paragraph 14.
[105] First respondent’s supplementary outline of submissions filed 27 April 2020 at paragraphs 15 and 16.
[106] Court book page 415 at paragraphs 46 and 48.
[107] Court book page 415 at paragraph 46.
The applicant submitted that the Tribunal had to consider, as part of its assessment as to whether there are compelling reasons to waive the Schedule 3 criteria, how long the applicant might remain off shore. It was submitted that this was relevant to the financial burden on the applicant and the sponsor, the effects on their health, relationship and prospects of having children and was therefore a relevant question which was squarely raised on the material before the Tribunal.[108]
[108] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 18.
It was further submitted that the question of the duration of the applicant’s absence whilst off shore was squarely raised on the material before the Tribunal.[109] It was submitted that this was because the gravity of the issues expressly raised by the applicant depended upon the duration of the applicant’s absence from Australia.[110]
[109] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 19.
[110] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 19.
In these circumstances, it is submitted that the Tribunal did not consider the ‘range and probability of the length’ of the possible separation by the parties as a result of the applicant having to return to Tonga and therefore this led the Tribunal into error.[111]
[111] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 21.
The applicant’s submission then purported to include evidence as to the processing times for applications for subclass 100 visas of between 13 months to 24 months.[112] It is submitted for the applicant therefore that the possible separation of the applicant from her husband was a significant period ‘capable of being found by the Tribunal to be compelling reasons to waive the requirement of criterion 3001.’ [113]
[112] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 24.
[113] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 25.
There are a number of difficulties with the applicant’s submission in support of ground five. Firstly, the applicant did not put any evidence before the Tribunal as to the amount of time that she asserted would pass whilst her off shore application was considered. Indeed, there is no evidence before this court as to the processing times at the time of the Tribunal’s decision.
Moreover, a fair reading of the Tribunal’s reasons indicate that the Tribunal did consider the length of time that the applicant would be required to be separated from her husband whilst off shore and concluded that this was not a significant or lengthy period. The Tribunal stated:
The tribunal notes an off-shore application for a Partner visa takes a limited period of time to be processed and does not in and of itself result in the permanent separation of the parties and a breakdown in their relationship.[114]
[114] Court book page 414 at paragraph 46.
Furthermore, the Tribunal noted:
The tribunal does not accept the stability of being in a committed, genuine and exclusive relationship is intrinsically threatened by limited period of separation…[115]
[115] Court book page 415 at paragraph 47.
The Tribunal concluded:
The tribunal has reviewed all of the available evidence and is not satisfied the parties’ temporary separation whilst awaiting the outcome of a visa application provides a compelling reason for not applying the Schedule 3 criteria.[116]
[116] Court book page 415 at paragraph 48.
Whilst the Tribunal did not expressly identify any particular length of time that the applicant would be separated from her husband, whilst applying for a partner visa offshore, it is apparent from a fair reading of the Tribunal’s reasons that the Tribunal did consider the length of such separation and whether this constituted a compelling reason. Its conclusion that it did not constitute a compelling reason to waive the Schedule 3 criteria was one which was reasonably open to the Tribunal to make.
The second aspect of this ground is an assertion by the applicant that the Tribunal failed to consider the consequences of separation which its decision might cause. This ground relies on the assertion that the tribunal failed to consider ‘“with an active intellectual engagement” the consequences to the applicant and her sponsor, including financial burdens, and effects on their health, relationship, and prospects of having children’ of any absence if she were required to return to Tonga.[117]
[117] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 26.
It is well settled that in considering claims made by an applicant on review, the decision maker must give active intellectual engagement with those claims. The Full Court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 relevantly said:
Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister … simply acknowledging or noting that the representation have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact …
…There had to be ‘an actual intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm’.[118]
[118] Minister for Home Affairs v Omar [2019] FCAFC 188 at [39] to [40].
It was submitted that this is particularly so in cases where decisions have the potential for drastic consequences.[119]
[119] Hands v Minister for Immigration and Border Protection (2019) 364 ALR 423 at [3], as quoted in BAL19 v Minister for Home Affairs [2019] FCA 2189 at [39].
Whilst the applicant acknowledged that the Tribunal mentioned the possible separation of the applicant and her husband, it did not give active intellectual consideration with this question in that it failed to consider the length of the possible period of separation.[120] In doing so, it did not properly consider the hardship that such separation might result in. Rather, it did little more than make conclusions which were formulaic, unrealistic or unreasonable and lacking in an intelligible basis.[121]
[120] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 31.
[121] Applicant’s supplementary outline of submissions filed 20 April 2020 at paragraph 32.
I am not persuaded by the applicant’s submission in this regard. For the reasons set out above, I am satisfied that the Tribunal did consider he likely length of a period of separation between the applicant and her husband.[122]
[122] Court book page 414 at paragraph 46.
The Tribunal’s reasons clearly demonstrate that it considered the submissions made by the applicant as to the consequences of any such separation on:
a)the financial resources of the applicant and the sponsor;[123]
b)the sponsor’s health problems;[124]
c)the applicant’s ability to get pregnant;[125] and
d)the emotional hardship and practical difficulties which the applicant and her husband would face by a separation.[126]
[123] Court book page 411 at paragraphs 25 to 29.
[124] Court book page 412 at paragraphs 32 to 35.
[125] Court book page 413 at paragraphs 36 to 40.
[126] Court book page 414 at paragraphs 41 to 48.
As stated above, the Tribunal did give consideration to the likely duration of any separation between the applicant and the sponsor in general terms. In my view it was not necessary for the Tribunal to determine a specific period of separation in order to give active intellectual consideration to these claims. Ultimately, the Tribunal was of the view that the separation would be of a limited and temporary duration. These findings were reasonably open to the Tribunal.
For completion, I note that this case is distinguishable from the facts in Hands and Omar both of which involved the cancellation of a visa which had the effect of permanent exclusion of the individuals concerned from Australia. The comments made by the courts in those cases therefore need to be considered in context and do not assist in this case.
For each of these reasons, ground five is not made out.
Conclusion
As none of the grounds of review have been made out, I order that the applicant’s application be dismissed with costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 30 October 2020
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