Fu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 964
•31 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 964
File number(s): SYG 971 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 31 October 2023 Catchwords: MIGRATION - Partner visa – decision of Administrative Appeals Tribunal (Tribunal) – construction and application of section 80 Migration Act 1958 (Cth) – meaning of ‘transit purposes’ – whether compelling reasons existed for waiving requisite criteria in subclause 820.211(2)(d)(ii) – whether failure by Tribunal to consider the combination of circumstances said to constitute compelling reasons not to apply Schedule 3 criteria. Legislation: Immigration Restriction Act 1901-1949 (Cth)
Migration Act 1958 (Cth) ss 4, 5, 80, 166, 169, 476,
Migration Reform Act 1992 (Cth) (Act No. 184 of 1992)
Migration Legislation Amendment Act 1994 (Cth) (Act No. 60 of 1994),
Migration Legislation Amendment Bill (No.1) 2008
Migration Regulations 1994 (Cth)
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner of TaxationvConsolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Gajjar v Minister for Immigration and Border Protection (2013) 281 FLR 370
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZYPC v Minister for Immigration and Border Protection (2021) 177 ALR 464; [2021] HCA 17
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24
Tickner v Chapman (1995) 57 FCR 451
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121
Division: Division 2 General Federal Law Number of paragraphs: 149 Date of hearing: 12 July 2023 Counsel for Applicant: Mr B Zipser Solicitor for Applicant: Juris Cor Legal Counsel for First Respondent: Mr HPT Bevan and Ms K Hooper Solicitor for Respondents: Australian Government Solicitor ORDERS
SYG 971 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: WENWEN FU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 15 March 2019.
2.A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the applicant’s application according to law.
3.The First Respondent is to pay the Applicant’s costs.
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 GOODCHILD:
This is an application made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for the review of a decision of the Administrative Appeals Tribunal made on 15 March 2019. By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Immigration to refuse to grant the applicant a Temporary Partner Visa.
It is the applicant’s case that jurisdictional error on the part of the Tribunal is made out on two main bases, which the Minister disputes.
In summary, the issues for me to determine in this Judgment are:
(1)Whether the Tribunal erred in its construction and application of s 80 of the Act, which deals with when certain persons are taken not to have left Australia. In particular, it is the applicant’s primary complaint that the Tribunal erred in finding that the facts, as found by it, fell within the statutory description of “transit purposes”; and
(2)Whether the Tribunal erred in its reasoning process when it found that it was not satisfied that there were compelling reasons to not apply the ‘Schedule 3 criteria’ of the Migration Regulations 1994 (Cth) (“the Regulations”), to effectively allow the applicant the visa.
BRIEF BACKGROUND
The applicant is a 36-year-old national of China.
On 12 July 2016 the applicant was granted a Subclass 600 Visitor visa which allowed her multiple entries into Australia, with the last date to arrive being 12 July 2017, and to stay in Australia for up to three months at a time.
On 28 July 2016, the applicant entered Australia for the first time but returned to her home country shortly after on 1 August 2016.
The applicant’s second entry into Australia was on 12 September 2016, at which time she was in a relationship with Mr L, an Australian citizen, who she would later marry in January 2017.
The departure to New Zealand
On 9 December 2016, shortly prior to their marriage, the applicant and Mr L departed Australia on a passenger cruise ship bound for New Zealand. The total duration of this trip to New Zealand was 13 nights, with the cruise ship arriving back in Australia on 23 December 2016.
On 4 March 2017, the applicant applied for a Temporary Partner visa nominating Mr L, who by that stage was her husband, as her sponsor. When making the visa application, the applicant learned from an online Visa system that her Visitor visa had expired.
On 27 March 2017, the Department of Immigration sent a letter to the applicant informing her of the following information and inviting her (and Mr L) to comment and put forward any claims they wanted the Department to consider:
When you lodged your Partner visa application you were not the holder of a substantive visa because your Visitor visa (subclass 600) ceased on 12 December 2016.
For Partner visa applications lodged within Australia, the Migration Regulations state that, if you are not the holder of a substantive visa at the time of lodging your Partner visa application, you must satisfy additional Schedule 3 criteria (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying the standard Partner visa criteria…
Criterion 3001 requires that an application was made within 28 days after your substantive visa ceased. You do not meet criterion 3001, however the Migration Regulations allows the Schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria.
The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria. Circumstances are considered on a case by case basis.
…
You should explain in detail the circumstances that led you to become a person who is not the holder of a substantive visa and provide information relating to any compelling reasons you may feel apply to your case.
You should also provide any relevant documents to support your claims.
(As per original)
As part of the above correspondence, the Department also asked the applicant to provide further evidence to demonstrate that she and Mr L met the criteria for a Partner visa.
On 31 March and 3 April 2017, the applicant emailed the Department responding to the invitation to comment. In her correspondence, the applicant detailed her confusion as to why her Visitor visa had ceased, noting particularly that she could not have “overstayed” her visa given she left Australia on a cruise ship to travel to New Zealand which she believed had reset the three-month period in which she was allowed to stay in Australia. The applicant also told the Department that when travelling to and from Australia during this trip, no immigration officer took issue with the validity of her visa.
By reply email sent on 4 April 2017, the Department reiterated to the applicant that her visa expired on 12 December 2016. In support, the Department referred the applicant to information found on their website concerning “round trip cruises”, stating that such information would help explain to the applicant “why [she] [has] not been considered to have left Australia as per the cruise [she] stated [she] travelled on”.
On 5 April 2017, the applicant once again emailed the Department, insisting that she, as a foreigner, was unaware of the special circumstances of round trip cruises for the purposes of her visa, and also questioned why she had not been notified of the cessation of her visa at the residential addresses or email address she provided to the Department. The applicant also included an image of a page on New Zealand’s immigration website that she claimed she checked before departing on the cruise. That page read, in part:
Immigration Instructions state that passengers arriving and departing on the same cruise ship are deemed to hold a Visitor Visa for 28 days (without the need to make an application).
Once again on 19 April 2017 the applicant emailed the Department further evidence in support of her case.
On 4 May 2017 a delegate of the then Minister for Immigration made a decision to refuse the applicant a Partner visa.
On 18 May 2017 the applicant lodged an application to the Tribunal for a merits review of the delegate’s decision and attended a Tribunal hearing on 15 November 2018.
On 15 March 2019 the Tribunal made its decision affirming the delegate’s decision not to grant the applicant a Partner visa. It is in respect of this decision that the applicant applied for a judicial review in this Court on 18 April 2019.
JUDICIAL REVIEW APPLICATION
By her Amended Application filed 23 June 2023, the applicant seeks final orders that:
·A writ of certiorari be issued to quash the decision of the Tribunal.
·The Court declare that the applicant is not a person taken to have left Australia pursuant to s 80 of the Act when she was outside of the migration zone from 9 December 2016 to 23 December 2016.
·A writ of mandamus be directed to the Tribunal to re-determine the applicant’s review application according to law, and
·A writ of prohibition be issued to restrain the first respondent, his employees, officers, delegates, or agents from acting upon or given effect to the Tribunal’s decision.
The two grounds upon which the applicant relies in seeking the above orders, are as follows:
1.The Tribunal misconstrued and misapplied s 80 of the Migration Act 1958.
Particulars
(a)Section 80 of the Migration Act, on its true construction requires consideration of the primary purpose of the applicant’s travel outside the migration zone.
(b)In this case the Tribunal failed to consider whether the primary purpose of the Applicant’s departure from Australia and entry into New Zealand was for transit purposes.
2.The Tribunal erred in finding at [82] that it was “not satisfied [there are] compelling reasons to not apply the Schedule 3 criteria”.
The Tribunal erred in the following ways:
(a)The Tribunal erred in its reasoning process at [62]-[67]. Specifically, first, the Tribunal was critical of the applicant at [64] and [67] for not “visiting the Department’s website” before she departed on the cruise in December 2016. This criticism assumed that, if the applicant had visited the Department’s website, she would have known that the cruise to New Zealand would not reset the three month stay condition on her visitor visa. However, keeping in mind that the Tribunal at [48] did not find that “this trip has [round trip cruise] status”, based on the evidence before the Tribunal, there was no information on the Department’s website which stated or suggested that the cruise to New Zealand would not reset the three month stay condition on her visitor visa. The Tribunal erred in erroneously assuming there was information on the website which would have given the applicant the knowledge the Tribunal believes she would have gained if she had visited the website. Second, the Tribunal’s reasoning process assumed that the proper construction of s 80 of the Migration Act was clear, and that it would have been clear or obvious to a migration lawyer that, even if the New Zealand cruise did not have round trip cruise status, the cruise would not reset the three month stay condition on her visitor visa. The Tribunal’s assumption was erroneous. Even if the Tribunal’s construction of s 80 turns out, following a determination by the Court in this matter, to be correct, the proper construction of s 80 at the time of the Tribunal’s decision in March 2019 was unclear. The Tribunal overlooked this. Third, the Tribunal erred in requiring the applicant to ensure, rather than requiring the applicant to take reasonable steps to ensure that she complied with conditions attaching to her visa.
(b) The Tribunal erred in its reasoning process at [68]-[71]. Specifically, the Tribunal stated at [71] that “the parties have failed to further satisfy me that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria”. This is not the correct question to ask. The correct question is whether “there are compelling reasons for not applying” one or more of the applicable Schedule 3 criteria. The correct question is not whether the applicant “has satisfied [the Tribunal]” that a particular matter “is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria”. The Tribunal thereby asked the wrong question which is a jurisdictional error.
Prior to delving into the Tribunal’s decision, it is prudent to first set out the legislative and regulatory framework relevant to the case at hand and the relevant history.
RELEVANT LEGISLATIVE AND REGULATORY FRAMEWORK
“Transit Purposes”
Australia’s first legislative scheme which placed restrictions on immigration and provided for the removal from the Commonwealth of prohibited immigrants, was the Immigration Restriction Act 1901-1949 (Cth) (“the Immigration Act”). Provisions relating to a non-citizen transiting from Australia to neighbouring countries (or overseas) on certain vessels were not yet contained in the legislation, and were not added until the Migration Act 1958 (Cth) which replaced the Immigration Act in 1958.
The Migration Act 1958 saw the earliest provisions concerning “entry permits” and the concept of persons departing from, but then returning to, Australia. The earliest iteration was found in s 9 of the Migration Act 1958 that was valid up until 21 December 1975. Section 9 of that version of the Migration Act provided:
Entry permit to lapse upon departure from Australia
Sect 9. (1) Where an immigrant who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.
(2) The last preceding sub-section does not apply in relation to a temporary entry permit upon or after a re-entry of the holder into Australia after having left Australia if-
(a) within six months before that re-entry, an authorized officer made a notation on the entry permit to the effect that the permit would not be invalidated by absence of the holder from Australia; and
(b) at the time of the re-entry, the entry permit has not, or had not, expired or been cancelled.
The Explanatory Memorandum accompanying the introduction of the above provision stated:
It is necessary that an entry permit should be good for only one entry, so that when an immigrant after living here for a time goes overseas, and is found during his absence to be an undesirable, he may be prevented from re-entering (as he may be under existing law by means of the dictation test). However, departure from Australia in a technical sense only - such as on a fishing expedition outside our territorial waters, or on a “round trip” to adjacent countries (leave and returning on the same ship) or a visit to one of Australia’s external territories - will not necessitate securing a fresh entry permit on “return” to Australia.
Following the Report of the Committee to Advise on Australia’s Immigration Policies, major amendments were introduced to the Migration Act in 1989 to allow the Government to control Australia’s immigration program more effectively.
Subsequent amendments in 1992 (with the passing of the Migration Reform Act 1992 (Cth) (Act No. 184 of 1992) (“the 1992 Reform Act”)) continued the reform and streamlining of the Migration Act, including important changes intended to clarify the status of all non-citizens in Australia.
Matters relating to the effect on a visa of leaving Australia and the definition of when a person is taken to not have left Australia indeed became more pronounced with the 1992 reform, which introduced ss 26ZT and 26ZU into the Migration Act.
Section 26ZT provided:
Effect on visa of leaving Australia
If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if:
(a) the visa is permission for the re-entry; and
(b) the visa is in force on re-entry.
Section 26ZU provided:
Certain persons taken not to leave Australia
For the purposes of s 26ZT, a person is not taken to leave Australia if:
(a) he or she goes outside the migration zone for no longer than a prescribed period; and
(b)while outside, goes to neither a foreign country nor an external Territory to which this Act does not extend (fishermen and others).
The terms “leaves Australia” and “migration zone” as contained in ss 26ZT and 26ZU had also been inserted in s 4(1) of then current Migration Act, and defined in the Act as follows:
‘leaves Australia’, in relation to a person, means, subject to section 26ZU (leaving without going to other country), leave the migration zone
‘migration zone’ means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or a Territory but not in a port…
The Explanatory Memorandum in respect of the insertion of ss 26ZT and 26ZU stated:
97. [Section 26ZT] makes it clear that after leaving Australia, the holder of a visa may only re-enter Australia if the visa is permission for that re-entry and it is still in force at that time…
98. [Section 26ZU] states that a person is taken not to have left Australia if that person goes outside the migration zone for no longer than the prescribed period and while outside does not go to a foreign country nor an external Territory to which the Principal Act does not extend. For example, fishermen.
In 1994, further changes to the Migration Act were introduced through the Migration Legislation Amendment Act 1994 (Cth) (Act No. 60 of 1994) (“the 1994 Amendment Act”). Some of these legislative changes were originally drafted as part of the 1992 reform but had been deferred until 1994 to allow for various amendments of a technical nature to ensure that the legislation operated smoothly.
By the 1994 Amendment Act, s 26ZU was repealed and substituted with the following section which relevantly refers to the expression “transit purposes”:
Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
By the 1994 Amendment Act, s 26ZU was also renumbered to s “80". The Explanatory Memorandum accompanying the new s 80 stated that the old s 26ZU had been redrafted to “better express the policy intention which is that passengers and crew on round trip cruises, fishermen, and others who leave Australia and return within a prescribed time are taken not to leave Australia provided that they do not go to a foreign country (other than for transit purposes)”. Section 80, in its current form (the operation of which is the central question for ground 1 of the applicant’s judicial review application), remains as set out in [33] above.
Other amendments brought about by the 1994 Amendment Act included changes to ss 54HM and 54HP which were renumbered to s 166 and 169, respectively.
As at September 1994, s 166 provided:
Persons entering to give certain evidence of identity etc
(1)Subject to section 167(3) and (4), this section and sections 168 and 169, a person, whether a citizen or non-citizen, who enters Australia must, without reasonable delay:
(a) show a clearance officer:
(i) if a person is a citizen…
(ii)if the person is a non-citizen, evidence of the person’s identity and of a visa that is in effect and is held by the person; and
(b)give the clearance officer any information required to be given by this Act or the regulations.
As at September 1994, s 169 provided:
Section 166 not usually apply
If:
(a) a person goes outside the migration zone; and
(b) under s 80 us not taken to leave Australia;
the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.
According to the Explanatory Memorandum, s 54HM (renumbered to s 166) was amended:
…to provide that the requirement placed on Australian citizens to show an Australian passport or prescribed evidence of identity and citizenship is taken to have been complied with if a clearance officer knows or reasonably believes that the person is an Australian citizen. The purpose of this amendment is to allow for the efficient processing of persons who cannot provide, or are unwilling to provide, the required documentation, but who an officer knows or reasonably believes to be Australian citizens.
In 2008, with the passing of the Migration Legislation Amendment Bill (No.1) 2008, s 169 was amended to become the current s 169(1), and related subsections - such as subsections (2) to (5) of s 169 - were inserted under the title “International passenger cruise ships”. Those sections provide:
Section 166 not usually to apply
(1)If:
(a) a person goes outside the migration zone; and
(b) under section 80 is not taken to leave Australia;
the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.
International passenger cruise ships
(2)However, subsection (1) does not apply if the person goes outside the migration zone on an international passenger cruise ship (see subsection (4)).
Note: The effect of this subsection is that people on international passenger cruise ships are required to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of this section).
(3)However, the Minister or Secretary may, in writing, determine that, despite subsection (2), subsection (1) does apply to a class of persons that includes the person.
(4)In this section, a ship is an international passenger cruise ship if:
(a)the ship has sleeping facilities for at least 100 persons (other than crew members); and
(b)the ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and
(c)that service:
(i)is provided in return for a fee payable by persons using the service; and
(ii) is available to the general public.
(5)A determination made under subsection (3) is not a legislative instrument.
The Explanatory Memorandum accompanying the 2008 Amendment Bill said of the changes to s 169, the following:
Part 3 – Round trip cruises
Migration Act 1958
Item 18 Section 169
14. This item amends section 169 in Division 5 of Part 2 of the Act by inserting “(1)” before the word “If”.
15. Section 169(1) provides that a person is not required to comply with the immigration clearance requirements in section 166 (unless directed by a clearance officer to do so) if that person goes outside and then re-enters the migration zone and under section 80 is taken not to have left Australia.
16. This amendment is consequential to the amendment to section 169 made by item 19 of this Schedule which inserts new subsections 169(2), (3), (4) and (5).
…
Item 19 At the end of section 169
18. This item amends section 169 in Division 5 of Part 2 of the Act by adding new subsections 169(2), (3), (4) and (5) at the end of section 169.
19. New subsection 169(1) (previously section 169) will provide that a person is not required to comply with section 166 (unless directed by a clearance officer to do so) if that person goes outside the migration zone and then re-enters the migration zone but is taken not to have left Australia under section 80.
20. New subsection 169(2) will provide that new subsection 169(1) (previously section 169) does not apply if the person leaves the migration zone on an “international passenger cruise ship”. The purpose of new subsection 169(2) is to provide that, as a general rule, passengers aboard international passenger cruise ships on round trip cruises are required to comply with the immigration clearance requirements in section 166.
21. The note following new subsection 169(2) will indicate to the reader that the effect of subsection 169(2) is to require persons on international passenger cruise ships to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of section 169).
22. New subsection 169(3) will provide that the Minister or Secretary may, in writing, determine that despite subsection 169(2), subsection 169(1) does apply to a class of persons that includes the person.
23. The purpose of new subsection 169(3) is to provide a mechanism in the legislation to allow the Minister or Secretary to exempt certain classes of persons on round trip cruises from having to comply with the immigration clearance requirements of section 166. For example, the Minister or Secretary may choose to exempt certain international cruise ship voyages by specified carriers from having to comply with section 166 (that is, the relevant classes of persons would be passengers and crew aboard specified voyages by specified carriers). An example of such an instrument would be one that specifies a number of voyages by selected commercial international cruise ship carriers, and provides that subsection 169(1) applies to these voyages with the effect that the specified carriers will not be taken, on re-entering the migration zone, to enter Australia for the purposes of section 166 (but may nevertheless be directed by a clearance officer to comply with section 166).
24. New subsection 169(4) defines “international passenger cruise ship” as: a ship that has sleeping facilities for at least 100 persons (other than crew members); a ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and that service is provided in return for a fee payable by persons using the service and is available to the general public.
…
I will consider the above legislative history in more detail when returning to the applicant’s submissions later in the Judgment.
Partner Visas
With respect to a visa of the subclass applied for by the applicant (subclass 820 - Partner visa), cl 820.21 at Schedule 2 of the Regulations outlines the criteria to be satisfied at the time an application for a Partner visa is made.
Clause 820.211(2) in particular stipulates:
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de factor partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18-- by the spouse or de facto partner; or
(ii)if the applicant’s spouse has not turn 18-- by a parent or guardian of the spouse who:
(A)has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa-- either:
(i) the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B)satisfies Schedule 3 criterion 3002; or
(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.
Criteria 3001 at subparagraph (1) specifies that:
The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
The relevant date is defined in criteria 3001(2)(c)(i) to be a date on which the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994
More relevantly, criteria 3001(2)(c)(iii) provided that:
(iii) the last day when the applicant held a substantive or criminal justice visa;
Criteria 3003 and 3004 contains additional criteria that ordinarily applies in conjunction with criteria 3001, but which is not relevant here and thus need not be repeated.
In respect of “compelling reasons” that the Minister must be satisfied of to not apply the Schedule 3 criteria, such term is not defined in legislation but has been considered by the Full Court of the Federal Court to involve circumstances that are sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (“MZYPZ”) at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. It has also been held that circumstances that may be compelling are not limited to the time of the application: Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 (“Waensila”).
THE TRIBUNAL’S DECISION
In the early paragraphs of its decision, the Tribunal relays findings made by the delegate in refusing to grant the applicant the Partner visa.
Relevantly, the Tribunal summarised that:
·The delegate had found that the applicant’s cruise to New Zealand did not constitute a departure offshore and that the applicant was not considered to have departed Australia on 9 December 2016 as per information on Departmental website;
·While the delegate had accepted that the applicant may not have been aware that a cruise to New Zealand did not constitute a departure offshore for the purpose of resetting the three-month stay condition on her Visitor visa, it was the applicant’s responsibility to be aware of and comply with her visa condition;
·The delegate had noted that the applicant had checked the online Visa system to ascertain the status of her parents’ Visitor visa and learned from this online system that she also did not hold a current Australian visa but did not take any steps to rectify that situation at that time; and
·The delegate had not been satisfied that the applicant and Mr L’s intention to have a child, their claimed fertility difficulties, or the care and support needs of Mr L’s parents provided compelling reasons to not apply the Schedule 3 criteria.
The applicant who was represented before the Tribunal provided the Tribunal written submissions and various other records that she relied upon to evidence her relationship with Mr L. At [16] of the Decision the Tribunal reproduces the applicant’s written submissions in their entirety. In those submissions the applicant argued that the most appropriate approach the Tribunal should take in reviewing the delegate’s decision, is to first determine whether, under law, the applicant was or was not the holder of a substantive visa at the time of making the Partner visa application. It was submitted on the applicant’s behalf that a close examination of the applicant’s travel and visa history is needed to make that assessment and that, only if the Tribunal finds that the applicant did not hold a substantive visa at the time she applied for a Partner visa, is it conceded that the applicant would not meet Schedule criterion 3001 and it would then be necessary for the Tribunal to consider whether there are compelling reasons for not applying criterion 3001.
Under the heading “Consideration of Claims and Evidence” ([30]), the Tribunal summarised that the live issues in the case were the following:
i.Whether it is necessary to consider cl. 820.211(2)(d) [of the Regulations]; and, if so,
ii.Whether the applicant held a substantive visa at the time of her Partner visa application or had applied within 28 days of the day her last substantive visa ceased; and, if not
iii.Whether there were compelling reasons that existed at the time of application not to apply the Schedule 3 requirements.
In considering the first two issues, the Tribunal correctly summarised that one of its tasks was to determine whether by departing on a cruise ship from Australia on 9 December 2016 and returning to Australia on the same vessel on 23 December 2016 the applicant is taken to have, or not have, left Australia. Reference here was made to s 80 of the Act relating to when certain people are taken not to have left Australia. The Tribunal found that the applicant satisfied two of the requirements of s 80 (ss 80(b) and (c)) with the remaining issue to be considered being whether pursuant to s 80(a) the applicant travelled to New Zealand in December 2016 “other than for transit purposes”.
The Tribunal in its decision at [40] acknowledged that the word “transit” is not defined in the Act and that as a consequence, “the ordinary dictionary meaning applies”. The Tribunal referred in particular to the Macquarie Dictionary (6th ed) definitions, which the Tribunal indicated emphasised ‘transit’ as meaning “the act or fact of passing across or through; passage from one place to another; conveyance from one place to another; to pass across or through a place or thing; or in relation to being ‘in transit’, passing through a place, staying for only a short time”.
The Tribunal did not accept the applicant’s contention that the intention or purpose of the cruise (namely, travel for leisure or tourism purposes) is relevant to the definition of the term ‘transit’ ([42]). The Tribunal further discussed that the applicant did not refer to the meaning of ‘in transit’ provided in the Macquarie Dictionary definition which includes “staying for only a short time”. The Tribunal considered this particularly relevant to the applicant’s case, stating that the New Zealand component of the cruise trip was of a relatively short duration ([43]).
At [45] of the decision, the Tribunal concluded that it was not persuaded that the ordinary meaning of ‘transit’ precludes a brief entry into a place after travel from one place to another. The Tribunal also concluded that it was not persuaded that the deemed provision of a brief Visitor visa by the New Zealand immigration authorities to cruise boat passengers, negates the status of passengers, such as the applicant, in relation to the provisions of s 80 of the Act.
Ultimately, the Tribunal was satisfied that the ordinary meaning given to the term ‘transit’ encompasses the applicant’s entry into New Zealand such that s 80(a) is met and the applicant is taken to not have left Australia as a consequence of her cruise trip in December 2016. Against these findings, the Tribunal considered that the applicant’s substantive Visitor visa ceased three months after her entering Australia on 12 September 2016 - namely on 12 December 2016 - and thus it was “necessary” for the Tribunal to consider cl 820.211(2)(d) of the Migration Regulations 1994 (Cth) which forms part of the criteria an applicant must satisfy when applying for the proposed Partner visa, and which is especially enlivened when the applicant is not the holder of a substantive visa.
The decision records that in coming to the above conclusions, the Tribunal had regard to the policy guidance in the Department’s Procedures Advice Manual (PAM 3) and in particular Parts 59 and 61. Those Parts state:
Part 59
Section 80 generally applies to passengers and crew on:
·departmentally-approved “round-trip” cruises” (international passenger voyages that have been granted an exemption under s 169(3) of the Act) (see section 61);
·cruises classified as “domestic voyages”
·yachts that briefly go outside and re-enter the migration zone and
·fishing vessels.
Section 80 is not restricted to the circumstances above, and may also apply to any person who:
·leaves the migration zone
·remains on the same vessel that they boarded in the migration zone and
·returns within the prescribed period.
Part 61
Persons travelling on a voyage covered by s 80 are deemed not to have departed Australia and will not have a departure or arrival recorded in the department’s movement records system for this voyage.
As such, visas (and visa stay periods) are not affected by the visa holder undertaking a s 80 voyage. For example:
·a single entry visa will not cease (under s 82(8)) when its holder re-enters the migration zone (because the person is taken not to have left Australia) and
·a person who has stayed in Australia for six weeks and takes a two week journey covered by s 80 will be taken not to have left Australia and will therefore return and be considered as having stayed in Australia continuously for 8 weeks.
As a result:
·persons who hold a multiple entry temporary visa are unable to reactivate the stay period on their visa by undertaking a voyage that is covered by s 80 (for example, travelling outside the migration zone briefly on a yacht, or travelling on an RTC [round trip cruise])
·persons on a s 80 voyage are not considered to be “outside Australia” and cannot apply for or be granted a visa (if the visa must be applied for or granted while the applicant is offshore) and
·persons on a single entry visa are able to undertake a s 80 voyage during their stay in Australia (although if they are unexpectedly required to depart the vessel offshore, they would need to apply for and be granted another visa in order to re-enter Australia).
Having been satisfied that it was necessary for it to consider cl 820.211(2)(d), the Tribunal went to consider in the balance of its decision ([53] to [84]) the question: whether the applicant met the Schedule 3 criteria or whether those criteria should be waived on the basis of compelling reasons not to apply those criteria.
The Tribunal found at [56] that the applicant did not satisfy Criterion 3001 of Schedule 3 as she did not make the application for a Partner visa within the required 28 days of her substantive visa ceasing. The Tribunal recorded that the applicant applied for a Partner visa on 4 March 2017, when her substantive visa had ceased on 12 December 2016. The Tribunal then acknowledged that in the circumstances it is required to consider whether there are compelling reasons for not applying the Schedule 3 criteria.
At [59] the Tribunal acknowledged that the expression “compelling reasons” is not defined in legislation but that the case law and Departmental policy suggests that the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria. It also stated at [61] that what amounts to compelling reasons in each case is a question of fact having regard to all the circumstances of the case.
At [62]-[67] the Tribunal first considered the question: Do the reasons for not holding a substantive visa provide a compelling reason to not apply the Schedule 3 criteria.
Under a heading in those words, the Tribunal considered the applicant’s claim that information about the potential impact of the applicant taking a brief round-trip cruise was not easily accessible on the Department’s website and that it is unreasonable for her to have perceived a need to go beyond the information provided to her on the Visitor visa grant notice. The Tribunal was not persuaded by this claim and stated at [64] that it did not accept that it is illogical for a lawful, temporary non-citizen in Australia to have an obligation to be aware of and comply with their visa conditions. The Tribunal indicated at [67] that it placed some weight on the lack of information at the applicant’s point of departure from the Departmental staff who checked her passport regarding the potential impact of s 80 of the Act, but ultimately concluded that it was not satisfied that:
it was beyond the applicant’s control to have visited the Department’s website and reviewed information relevant to her intended cruise trip, or otherwise sought advice about how she could ensure she fully complied with conditions attached to her Visitor visa.
Next, at [68]-[71], the Tribunal addressed the question: Does the duration of the parties’ relationship provide a compelling reason to not apply the Schedule 3 criteria?
Under this heading, the Tribunal referred to the Explanatory Statement accompanying the introduction of the Schedule 3 criteria. The Tribunal noted that the waiver provision was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a “strongly compassionate” nature. The Tribunal noted that according to the Explanatory Statement, examples of circumstances where a waiver may be justified include where there are Australian-citizen children from the relationship, or, where the applicant and his or her nominator are already in a long-standing spouse relationship which has been in existence for two years or longer.
The Tribunal noted that there is no child from the parties’ relationship but acknowledged that at the time of the decision the parties had been in a relationship for over two years ([70]). Although acknowledging that the parties’ relationship can be appropriately regarded as long term, the Tribunal stated that a long-standing relationship is one factor to be considered but does not inevitably result in waiver ([70]).
The decision-maker stated that he reviewed financial, social, household, travel and other evidence provided by the applicant with her visa and review application to support the genuine nature of her relationship with Mr L. The Tribunal noted (at [71]) that a “genuine relationship is a basic requirement for a Partner visa application”, before concluding “the parties have failed to further satisfy me that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria”.
Other questions with respect to compelling reasons that the Tribunal addressed were: “does the parties’ wish to conceive a child provide a compelling reason to not apply the Schedule 3?” at [72]-[72]; “the impact of separation of the parties” at [75]-78]; “do the care and support needs of [Mr L]’s parents provide a compelling reason to not apply the Schedule 3 criteria” at [79] and “does the construction contract to build a new house....provide a compelling reason to not apply with Schedule 3 criteria?” at [80]-[81].
Ultimately, at [82]-[84] of its decision under the heading “Overall Assessment” the Tribunal concluded:
82. I have considered all of the claims made by the applicant in relation to this matter. I have had regard to the parties knowing each other for nearly three years and being married for over two years. I have considered the circumstances whereby the applicant did not hold a substantive visa when she applied for a Partner visa. I have considered the applicant’s claims in relation to the parties’ wish to have a child and their age-related fertility concerns relating to [Mr L] and other complications arising from her blood pressure condition. I have considered the emotional and financial and practical impact a period of separation would have on both the applicant and [Mr L]. I have considered the applicant’s past claims in relation to the reliance [Mr L]’s parents have on her care and support. I have considered the evidence pertaining to the genuine nature of the parties’ relationship, including property investments owned by [Mr L]. I have considered these reasons separately and cumulatively and in the circumstances of this matter, for the reasons outlined in this decision, is not satisfied they provide compelling reasons to not apply the Schedule 3 criteria to the applicant’s application for a Partner visa.
83. Accordingly, the applicant does not meet cl. 820.211(2)(d)(ii). There is no evidence before the Tribunal that the applicant meets the requirements set out in the alternative subclauses in cl. 820.11.
84. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
In the foregoing circumstances, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa.
CONSIDERATION
Ground 1 - s 80 of the Migration Act
Applicant’s submissions
The parties agree that the resolution of this ground of review turns on the proper construction of “other than for transit purposes” in s 80 of the Act.
The applicant submitted that in determining the meaning of “transit” the Tribunal relied on a literal approach and did not consider the purpose of s 80 and the context in which it appears, creating an unexpected consequence for Australian non-citizens and international cruisers who visit foreign countries.
The applicant submitted that the concept of transit does not involve a person who is visiting the country. The applicant submitted that “for transit purposes” is a composite phrase and the meaning of the phrase in the statute is not the sum of the meaning of the individual words in the phrase. The applicant submitted that the Tribunal and the first respondent rely too much on the dictionary definition of “transit” thereby “making a fortress out of the dictionary”.
Contrary to the submission of the first respondent, the applicant contends that entry as a visitor and entry for transit purposes are mutually exclusive.
The applicant rejects as “wrong” Part 59 of the PAM 3 in respect of the identified application of s 80, contending that Departmental policy cannot determine the proper construction of a statutory provision.
The applicant submitted that whether or not the cruise is departmentally approved under s 169(3), which did not exist until 14 years after the amendments to the Act in 1994, does not determine whether or not s 80 applies. The applicant submitted that if a person goes on a round-trip cruise and while in a foreign country they enter the country to visit the country even for one day, they have left Australia.
First respondent’s submissions
The first respondent submitted that the task of statutory construction must begin and end with consideration of the text read in context: Commissioner of TaxationvConsolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 per French CJ, Hayne, Crennan, Bell and Gageler JJ at [39] (“FCT”).
Relying upon the meaning of ‘transit’ (Macquarie Dictionary (8th ed) 2020) including relevantly, “the act or fact of passing across or through…”, and ‘in transit’ as defined as “passing through a place; staying for only a short time”, the first respondent submits this is how the Tribunal correctly interpreted the phrase. The first respondent submits that properly construed s 80(a) applies to a person who enters a foreign country/countries as a visitor for up to 30 days provided that his or her entry is still capable of falling within the statutory phrase of entry for “transit purposes”. Entry as a ‘visitor’ and entry for ‘transit purposes’ are not mutually exclusive concepts.
The first respondent contended that the Tribunal asked itself the correct question and then answered that question by reference to the facts as found by it. The first respondent submitted that the Tribunal was correct to find the following facts fell within s 80(a) of the Act: the cruise ship left Australia, travelled to New Zealand, and stopped at a series of locations in New Zealand for a period of no longer than 12 hours in each location before returning to Sydney. The applicant of necessity must have returned to the cruise ship on each occasion. The total duration of the cruise was 12-14 days.
The first respondent submitted that the individual’s subjective purpose is not relevant to the application of the section. The first respondent did not agree with the applicant’s contention that the true construction of the section requires consideration of an applicant’s primary purpose for travelling outside of Australia’s migration zone. The first respondent considered that this would involve reading into the legislation an additional word contrary to the permissible extent to which a court may depart from the statutory text as stated by the High Court majority in Taylor v The Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[40].
The first respondent submitted that what is relevant to the application of s 80 is whether, objectively, an individual can be described as entering a foreign country for transit purposes.
Did the Tribunal fall into jurisdictional error in relation to s 80 of the Migration Act?
Having regard to the legislative history of the Act, the extrinsic materials and bringing a common sense meaning to the statutory text, in my view, the Tribunal correctly interpreted s 80 and its operation, and thus did not err in applying the provision the way it did.
The Tribunal was correct in determining that the ordinary meaning given to the term ‘transit’ encompasses the applicant’s entry into New Zealand. The Tribunal was correct in rejecting the submission by the applicant that the Department’s policy on this issue in PAM 3 were unlawful policies.
Picking up the first respondent’s reference to FCT, the Court said at [39]:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [59]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is there examination an end in itself.
In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24, Crennan, Bell, Gageler and Keane JJ, when construing s 85 of the Act and considering the validity of a determination by the Minister limiting the number of protection visas that could be granted in a financial year, referring to FCT, said at [25]:
…The numerous amendments that have been made to the [Migration] Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together “as a combined statement of the will of the legislature”. The timing of amendments might assist in determining the ‘hierarchy’ of apparently conflicting provisions of the Act as amended, but notions of “implied repeal” have no place.
(Citations omitted)
The object of the Act is, “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4(1)). “To advance its object”, the Act “provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. Section 5(1) of the Act provides that “leave Australia” means, subject to s 80 (leaving without going to another country), leave the migration zone.
The earliest iteration of s 80 can be seen in the Act as enacted in 1958. The creation of a ‘legal fiction’ as to when a person or persons are deemed not to have left Australia was, according to the relevant Explanatory Memorandum, to allow persons who departed Australia in a “technical sense only” - such as on a fishing expedition outside our territorial waters or on a “round-trip” to adjacent countries (leave and returning on the same ship) or a visit to one of Australia’s external territories - would not require the person to secure a fresh entry permit on “return” to Australia.
It was clear from the statutory language and the Explanatory Memorandum that the legislative focus of s 9 of the Migration Act 1958 was to not require an entry permit on return to Australia for people undertaking a round trip cruise from Australia to an adjacent country, leaving and returning on the same ship. There was nothing in this early iteration speaking of going to foreign countries ‘other than for transit purposes’, but presumably going on a ‘round trip’ in 1958 to adjacent countries meant people holidaying and visiting other countries. The only explicit condition contemplated with this early iteration was ‘leaving and returning on the same ship’.
Sections 26ZT and 26ZU were introduced in 1992, then repealed in 1994 and replaced with ss 79 and 80. The creation of the legal fiction continued and it is in the 1994 amendments that “other than for transit purposes” appears. Again, reflecting on the statutory language and Explanatory memorandum of the new s 80, the “section was redrafted to better express the policy intention which is that passengers…on round trip cruises …who leave Australia and return within a prescribed time are taken not to leave Australia provided that they do not go to a foreign country (other than for transit purposes)”. Section 80 is within “Subdivision AG -- Other provisions about visas”; “Division 3 -- Visas for non-citizens”, of “Part 2 -- Arrival, presence and departure of persons”, noting that Division 3 regulates the visa regime permitting non-citizens to enter or remain in Australia.
The first respondent refers to further amendments brought about by the 1994 Amendment Act with the introduction of ss 166 and 169 of the Act. These provisions appear within Division 5 of Part 2 and regulate immigration clearance and the identity evidence required at immigration clearance. The first respondent calls in aid these provisions to assist in understanding the application and operation of s 80 of the Act and the meaning of “for transit purposes”.
Section 166 of the Act requires all persons who enter Australia to present a passport and/or visa as evidence of identity to be immigration cleared. Section 169 (1) of the Act provides that s 166 does not apply if, under s 80, a person is taken to not leave Australia.
Further provisions within Division 5 were introduced in 2008 which regulated international passenger cruise ships. Sections 169(2) and (3) operate to require persons on international passenger cruise ships to be immigration cleared unless the Minister determines in writing that persons on an international passenger cruise ship are not required to be immigration cleared. By these provisions, Parliament introduced the same legal fiction facilitating an exemption from immigration clearance for persons travelling on international cruise ships from Australia as those persons that are deemed by s 80 to not leave Australia.
The first respondent submits that the Explanatory Memorandum to the 2008 amendments makes clear that the legislative intention of the package was, should the Minister or Secretary determine, alleviate the administrative burden that would be required for “international passenger cruise ships” to go through immigration clearance.
The clear and plain intention of Parliament since the enactment of the Act has been to deem, for migration purposes, certain categories of persons to have not left Australia. That category of person has, not surprisingly, included fisherman (and possibly persons travelling in airspace: Gajjar v Minister for Immigration and Border Protection (2013) 281 FLR 370) and facilitating tourism, providing for brief transitory travel of a vessel travelling from an Australian port to a foreign port with passengers and crew.
The applicant submitted that “whatever transit means it doesn’t mean visiting”. I think that is exactly what it means in this legislative context.
The construction set out above conforms with and promotes the purpose and object of the 1994 amending Act. As directed by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at [408]:
…the modern approach to statutory interpretation (a) insists that context be considered in the first instance and not merely when ambiguity might be thought to arise and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which.… one may discern the statute was intended to remedy…
Further, the extracts from the Explanatory Memorandum support the preferred contextual construction of s 80.
In the foregoing circumstances, I am not satisfied the ground one establishes jurisdictional error in the Tribunal’s decision. Accordingly, this ground fails.
Ground 2 – compelling reasons
As the Tribunal had found that the applicant did not meet the relevant Schedule 3 criteria, the issue for the Tribunal was whether it was satisfied that there were compelling reasons for not applying those criteria.
The relevant statutory scheme
The applicant applied for a Partner (Temporary) (Class UK) visa under s 65 of the Act on 4 March 2017 on the basis of her relationship with her sponsor. This application was refused by a delegate of the first respondent on 4 May 2017. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa were set out in Part 820 of Schedule 2 to the Regulations 1994.
Sub-clause 820.211(1)(b) provided that an applicant was required to meet the requirements of various subclauses. Clause 820.211(2)(d)(ii) required an applicant, who is not the holder of a substantive visa and did not enter Australia holding a diplomatic visa or special purpose visa, to satisfy criteria 3001, 3003 and 3004 in Schedule 3 to the Regulations, unless the decision-maker is satisfied that there are compelling reasons for not applying those criteria. As the applicant was not the holder of a substantive visa, a diplomatic visa, or a special purpose visa, she was required by criterion 3001 to lodge her application for a visa within 28 days after the “relevant day”. If she failed to do so, the applicant could only satisfy the criteria in cl 820.211 if, by cl 820.211(2)(d)(ii), the decision maker “is satisfied that there are compelling reasons for not applying (the Schedule 3) criteria”.
The “relevant day” in this case is the day that the applicant last held a substantive Visa which was 12 December 2016 when her Subclass 600 Visitor visa ceased. The applicant submitted her application for the Partner Visa on 4 March 2017 and as such the Tribunal found that the applicant did not make the application within 28 days of the relevant day. Consequently, the applicant did not satisfy criterion 3001.
The Tribunal was then required to consider if it was satisfied that there were compelling reasons for not applying the criteria. The purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if compelling circumstances arise and to avoid hardship to the visa applicant. It was designed to give decision-makers some flexibility and has been described as an “ameliorating provision”: Waensila at [2], [18],[53] and [54].
The applicant’s case for compelling reasons was put in summary form by the applicant and reproduced in the Tribunal’s reasons for decision as follows:
The following is a summary of the circumstances to which we submit both singularly and collectively amounts to compelling reasons:
·Should the Tribunal find the review applicant not being a holder of a substantive Visa at the time of the Visa application, we submit the circumstances leading to the cessation of the review applicant subclass 600 Visitor (Class FA) visa on 12 December 2016 was out of the ordinary practice of international travel movements that itself amounts to a compelling reason.
·The review applicant and her husband (“the sponsor”) is actively seeking a conceive a child and has consulted medical professionally. The urgency and desire to conceive a child is due to the fertility issue facing the couple as well as the age of the sponsor. Consequently, we submit the unique situation makes it a necessity and compelling reason for the review applicant to remain in apply for the Partner Visa in Australia thus appropriate to not apply the relevant Schedule 3 criteria.
·Long-standing relationship
The Tribunal generally accepted the evidence provided by the applicant with respect to the matters put forth as compelling reasons.
Ground 2(b) – impermissibly imposing a burden of proof on the applicant
With respect to the applicant’s ground 2(b), the applicant has two complaints. The first is that the Tribunal “asked the wrong question” when it stated that “the parties have failed to further satisfy me that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria”.
The applicant argued that the Tribunal has erroneously placed an onus on the applicant “to further satisfy [the Tribunal] that [a proposed specified reason] is a compelling reason”, contrary to the approach in accordance with cl 820.211 (2)(d)(ii) which provides:
...
(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 applicant observed that the wording in the clause is “unless the Minister is satisfied there are compelling reasons”, not “unless the applicant satisfies the Minister there are compelling reasons”. The applicant argues that the operative difference is that the applicant has an onus to satisfy the decision-maker and this places a greater burden on the applicant than if a decision-maker is simply required to be satisfied. The applicant submitted that the difference may seem minor but within the context of the Migration Act holds some significance because there are other provisions where there is an onus on an applicant to satisfy the Minister, giving an example of s 501(1).
The applicant’s second complaint is that “…compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria” is not part of the statutory test and operates to place a further burden (and an almost insurmountable hurdle) on the applicant, to satisfy the Minister not only of compelling reasons, but reasons that should compel the Minister not to apply the relevant criteria.[1]
[1] Note here that “proceedings of the Tribunal are administrative in nature or inquisitorial and there is an onus upon neither an applicant nor the Minister”: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [40].
The first respondent submitted that the Tribunal was required to be affirmatively satisfied that it should waive the Schedule 3 criteria. The first respondent submitted that as a matter of practicality the applicant needed to put such submissions and evidence before the Tribunal that allowed it to reach that state of satisfaction, that there was no error in the Tribunal saying that the parties needed to satisfy it. The first respondent contends that the Tribunal properly had regard to the relationship between the applicant and her sponsor, to its longevity and considered that that period of longevity is not of itself enough.
The first respondent submitted that the language of “should compel” repeats the statutory language and is consistent with the legal principles. The first respondent submitted that it was surplusage and a repetitive use of the regulatory language of no significance.
The first respondent submitted that the question for consideration is whether the Tribunal has engaged in a looseness of language or whether the Tribunal has applied the incorrect test in the sense that the Tribunal has required something more than a level of satisfaction, or if the Tribunal has imposed an unacceptable and/or impossible onus on the applicant.
I agree with the first respondent’s characterisation of the question for consideration - that having regard to the words used by the decision-maker, did it apply the incorrect test or were the words used simply a ‘looseness’ of language, noting of course the trite observation that the reasons of an administrative decision-maker should not be construed minutely and finely with an eye keenly focussed on the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
To determine this review ground, it is necessary to examine closely the Tribunal’s reasoning. Specifically on the issue of whether the duration of the applicant’s relationship with her sponsor provides a compelling reason to not apply the Schedule 3 criteria, the Tribunal reasoned in four discrete paragraphs, in summary, as follows.
At paragraph [68] the Tribunal records acceptance that based on the evidence before it the applicant and sponsor met in April 2016, commenced a committed relationship in November 2016 and married in January 2017, observing “consequently they have now been in a relationship for over two years”.
Paragraph [69] of the Tribunal's decision repeats the portion of the Explanatory Statement accompanying the introduction of the Schedule 3 criteria and refers particularly to the purpose of the 'waiver' provision as being “to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a 'strongly compassionate' nature”. The paragraph also highlights that one example referred to in the Explanatory Statement of a circumstance where a waiver may be justified is when “the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer”.
At [70] the Tribunal acknowledged that either an Australian citizen child from the relationship or a long-standing genuine relationship, on their own, can be sufficient to establish a compelling reason. The Tribunal acknowledged that the applicant and sponsor had been married for over two years and that their relationship could be appropriately regarded as long-term. The Tribunal acknowledged that a long-standing relationship is one factor to be considered but did not inevitably result in a waiver.
At [71] the Tribunal records that it had reviewed the financial, social, household, travel and other evidence provided with the visa and review application in support of the genuine nature of the parties’ relationship and noted that a genuine relationship is the basic requirement for a partner visa. The Tribunal then states “… and the parties have failed to further satisfy me that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.”
It is not apparent on the face of the Tribunal’s reasons why the duration of the parties’ relationship did not provide a compelling reason to not apply the criteria. No reasons are apparent from the Tribunal’s consideration of the other individual circumstances of the case, apart from the fact that each such circumstances were not seen by the Tribunal as in itself constituting a compelling reason. Absent a comprehensive evaluation or engagement with the material available to it relevant to the issue, I am of the view that the four paragraphs of the Tribunal’s reasoning reflects that the Tribunal decided to reject the nature and duration of the relationship in discharge of some onus that the applicant had to satisfy. The mere recitation of the fact of reviewing material and a reference to the Explanatory Statement does not disclose an evaluation of the applicant’s argument, or an engagement with the issues, such that it is at least discernible as to why the longevity or the nature of the parties’ relationship were such that it did not amount to a compelling reason not to apply the criteria.
It is not possible to identify from the ‘reviewed’ factual matters what it was that impugned the requisite satisfaction. I am not satisfied that the Tribunal’s ‘reasons’ for not being satisfied that the duration of the parties’ relationship provides a compelling reason, discloses a necessary conscious process of considering and weighing the evidence in respect of this issue, an issue clearly material to its consideration.
The use of the words “… and the parties have failed to further satisfy me…” do not in my view amount to mere surplusage or looseness of language. These words operate as a concluded finding following a statement in which the notation "a genuine relationship is the basic requirement for a partner visa application" is made. In my view, this effectively suggests that the Tribunal was not persuaded about the genuine nature of the parties' relationship, without actually stating that. It is to be remembered here that this paragraph of the Tribunal's decision, which addresses whether the duration of the relationship provides a compelling reason to not apply the criteria, opens with the statement that the Tribunal had “reviewed the financial, social, household, travel and other evidence...in support of the genuine nature of the parties' relationship”. That is the extent of any engagement with the material available to the Tribunal. This, in my view, reflects a substantive approach that the applicant was required to prove her case by providing evidence in support of the genuine nature of her relationship with the sponsor, rather than a substantive approach of engagement and consideration of material to reach a satisfaction of a factual state of affairs, in this case about the longevity of the relationship.
The process required by the clause entails a duty to consider whether a compelling reason exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the Tribunal was bound to consider. To comply with the duty conferred, the Tribunal had to engage in an “active intellectual process” in which the prescribed circumstance “receives [the Tribunal’s] genuine consideration”: Bromberg J in MZYPZ at [19] referring to Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57] (Stone, Foster and Nicholas JJ), citing Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (Gleeson CJ and Gummow J). This is especially so in this case where, there was substantial documentary material relied upon by the applicant to evidence the genuine nature of her relationship with the sponsor, and where the genuineness and longevity of that relationship was but one of several circumstances relied upon by the applicant in her case.
The first respondent submitted that the Tribunal does not set out its reasons for rejecting a particular argument, that the Explanatory Statement does not give any particular ‘status’ to a relationship of two or more years duration. It merely identifies this is an example of a situation in which reasons of a strongly compassionate nature might exist. The Explanatory Statement may not provide a particular ‘status’ to a relationship of two years or more but it needs to be remembered that the preface to the long-standing relationship which has been in existence for two years or longer is as an example of a reason of a “strongly compassionate” nature.
Counsel for the applicant submits that in light of the Explanatory Statement, one would expect the Tribunal to provide a rational explanation as to why, in this case, where there was a relationship of more than three years, why that lead to a failure to form a state of satisfaction required by the statute.
Counsel for the applicant submitted that the reason why there was no explanation from the Tribunal as to why it was not satisfied there were compelling reasons, was because it applied the incorrect test - that is, the reason it was not enough is because the applicant had to further satisfy the decision maker that it is a compelling reason to compel the decision maker not to apply the Schedule 3 criteria. The applicant submitted that this, in combination, is the wrong test.
With respect to the second complaint regarding “...compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria”, I accept the applicant's submission that this is not part of the statutory test for the following reasons.
The statutory test requires the reasons to be compelling. It is the reasons to which regard must be had to reach a level of satisfaction - it is not for the Tribunal to be compelled. The function of forming the opinion vests in the designated decision-maker. The Tribunal here is not required to be compelled not to apply the Schedule 3 criteria. Indeed, as submitted by the applicant, such a requirement places a very high bar over which the applicant must reach.
Taken in context, the words in combination “…failed to further satisfy me that…is a compelling reason that should compel…” suggest that the task of the applicant was to provide sufficiently probative material that the longevity of the relationship was so compelling that the decision-maker would be compelled to not apply the Schedule 3 criteria. This is not mere surplusage. This bears no resemblance to the task required of the Tribunal to reach a state of satisfaction of a compelling circumstance.
The applicant contends that the error is material. That if the Tribunal had asked her the correct question and thereby correctly had regard to the statutory purpose, the Tribunal’s decision may have been different. The authorities are clear that the question to consider for materiality is whether there is a realistic possibility that the Tribunal's decision could have been different if the Tribunal had not made the error it made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45], [48] and [49]. In the present case, it is not difficult to see that if the Tribunal had not applied the wrong test such that it avoided misconceiving its task of satisfying itself of the existence of compelling reasons, there is a realistic possibility that the Tribunal could have found in favour of the applicant considering the strength of the compelling reasons put forward by her. Again, by applying the wrong test the Tribunal placed an inappropriate onus on the applicant which, if not present, could have realistically led to the necessary state of satisfaction in the Tribunal. For these reasons, I accept the Tribunal's error is material.
Ground 2(a) – the Tribunal’s reasons for not holding a substantive visa provided a compelling reason to not apply the Schedule 3 criteria
The applicant’s complaint in this ground concerns the Tribunal’s reasoning process in determining that the reasons why the applicant did not hold a substantive visa were not a compelling reason to not apply the Schedule 3 criteria.
The Tribunal concluded that it was the responsibility of visa holders to take reasonable steps to ensure compliance with conditions of their visa. The Tribunal was not satisfied that it was beyond the applicant’s control to have visited the Department’s website and reviewed information relevant to the intended cruise ship, or otherwise sought advice about how she could ensure she fully complied with conditions attached to her visa.
In my view, the applicant was clearly mistaken as to the effect her cruise to New Zealand had in resetting her visa for the purposes of the visa conditions.
The applicant pointed to the reliance upon the Visa Grant Notice and there being nothing in the Visa Grant Notice directing her attention that there may be circumstances where certain departure from and return to Australia may not be considered as leaving Australia.
The applicant pointed to the border officer who checked the applicant’s passport at the point of departure, assuming that he or she was aware of the RTC or s 80, and therefore must have been aware that the applicant would be an unlawful non-citizen upon returning to Australia. Although the Tribunal placed some weight on this fact, it was not satisfied that it sufficiently mitigated the responsibility of the application to ensure she was aware of, and complying with, her visa conditions.
The applicant pointed to the fact that the applicant and the sponsor were entitled to GST refunds through the Tourist Refund Scheme and that such scheme is only available to people who are departing Australia.
The applicant pointed to the difficulties with navigating the Department’s website suggesting that the information regarding “What is a ‘round trip cruise’?” is not easily accessible to an ordinary person like the applicant. The applicant submitted that to be able to access such information, a person must first form some doubt as to whether they would have a visa to re-enter Australia. In the present case, it was submitted that, based on the Visa Grant Notice that was given to the applicant, prima facie there was no reason for the applicant to suspect she would not have a valid sub-class 600 visitor visa when returning to Australian on 23 December 2016.
My view is that the decision was harsh in the circumstances if one accepts that the applicant was mistaken in her understanding as to the resetting effect of her travel on the cruise ship to New Zealand. The applicant provided details and comprehensive submissions with respect to the circumstances that arose because of her being unaware that certain departures from Australia may not be considered as circumstances were a person has left Australia. The Tribunal was satisfied that it is was likely that the applicant had an intention to reset the three-month stay condition attached to her visitor visa. The Tribunal acknowledged that the applicant may have thought her brief cruise trip in December 2016 would have prevented her from breaching the three-month stay condition and her visitor visa. Unfortunately, however, the decision being harsh or unreasonable does not expose the decision to judicial review – unless an extreme illogicality is demonstrated: see for example Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 137 per Robertson J.
Any application for judicial review needs to establish some legal error and does not extend to a review of the factual merits of the decision under review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36. Brennan J (as his Honour then was) there observed:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174 [23] per French CJ, Gummow, Hayne, Kiefel, Heydon, Crennan and Bell JJ.
The Tribunal considered the applicant’s claims and the decision made was open to it on the evidence. The applicant’s ground 2(a) is not made out.
Compelling reasons – separately versus collectively
There is a further aspect to the Tribunal’s reasons that is of concern. The Schedule 3 criteria not to be applied in this case (3001) was the requirement of the applicant to lodge her application for a visa within 28 days after the relevant day. The relevant day in this case was 12 December 2016 and the applicant did not make an application for her visa until 4 March 2017. The exercise of the Minister’s discretion must have regard to the statutory context in which it is being exercised. In this case, it is satisfaction of compelling reasons to allow a visa application to be made 54 days out of time.
In this case, the applicant raised a combination of circumstances in support of the contention that there were compelling reasons justifying the waiver of the Schedule 3 criteria. In its submissions, the applicant relied upon the circumstances both singularly and collectively amounting to compelling reasons.
The Tribunal observed (at [59]) that the reasons should be sufficiently convincing to move it to exercise its discretion to waive the requisite criteria; that the circumstances must be sufficiently powerful to lead the decision-maker to make a positive finding in favour of waving the required criteria, referring correctly to MZYPC v Minister for Immigration and Border Protection (2021) 177 ALR 464; [2021] HCA 17 (“MZYPC”). The Tribunal reasons record (at [60]) its regard to the policy guidelines and the intent of those guidelines. It recorded it was not bound by departmental policy and stated that what amounted to compelling reasons in each case was a question of fact having regard to “all” the circumstances of the case. It stated that to find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.
The Tribunal found that the particular circumstances raised by the applicant did not separately constitute a compelling reason not to apply the Schedule 3 criteria. It then concluded generally (without further consideration or explanation) (at [82]), the following:
I have considered these reasons separately and cumulatively and in the circumstances of this matter, for the reasons outlined in this decision, is not satisfied they provide compelling reasons to not apply the Schedule 3 criteria to the applicant’s application for a partner visa.
What is absent from the Tribunal conclusion is any consideration of why the identified circumstances did not cumulatively amount to compelling reasons. In the absence of such explanation, it appears on the face of the Tribunal decision that the Tribunal proceeded on the basis that each matter raised in support of the contention that there were compelling reasons must, in itself, be a compelling reason. There was no proper, genuine, and realistic consideration in the sense of active engagement with the applicant’s argument that a combination of circumstances amounted to compelling reasons in her case.
The Tribunal’s reasons reveal no process of assessment of the weight to be given to the various matters relied on by the applicant beyond the finding that each matter individually was not a compelling reason. As Bromberg J pointed out in MZYPZ at [12]: “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”.
The applicant outlined a number of circumstances, not solely as each necessarily amounting to a compelling reason, but also as amounting cumulatively to compelling reasons. The Tribunal failed to consider properly or have regard to “all” of the circumstances in determining whether the matters raised by the applicant, considered cumulatively, amounted to compelling reasons to not apply the Schedule 3 criteria.
Accordingly, jurisdictional error in my view arises in this regard.
CONCLUSION
In all of the foregoing circumstances, although I am not satisfied that jurisdictional error is established under the applicant’s grounds 1 and (2)(a), I order that the matter be remitted to be re-determined by the Tribunal, on the basis of jurisdictional error established under the applicant's ground 2(b), and my own concerns that the Tribunal failed to properly consider the applicant's compelling reasons cumulatively.
The orders I make are set out at the forefront of this Judgment.
I certify that the preceding one-hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 31 October 2023
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