Gill v Minister for Immigration
[2015] FCCA 2674
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2674 |
| Catchwords: MIGRATION – Application failed to particularise grounds of review – leave granted to file amended application but never filed – Applicant’s submissions primarily raise issues of the merit of the Tribunal’s decision – no specific grounds of review for Respondent(s) to respond to – in submissions Applicant contends that the High Court decision of Berenguel has been incorrectly interpreted in subsequent judgments of the Federal Court and in this Court. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 476(1) Migration Regulations 1994 (Cth), cl.820.221(2), Schedule 3 cls.3001, 3003 & 3004 |
| Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Banque Commerciale S.A. en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; (2010) 264 ALR 417 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428; 245 ALR 691 |
| Applicant: | RUPINDERPAL SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 53 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 March 2015 |
| Date of Last Submission: | 3 March 2015 |
| Delivered at: | Canberra |
| Delivered on: | 30 September 2015 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Hugh Ford (until 7th September 2015) |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz, Canberra |
ORDERS
The Application filed 7 September 2014 be dismissed.
The Applicant is to pay the First Respondent’s costs, fixed in the sum of $3000.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 53 of 2014
| RUPINDERPAL SINGH GILL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13th August 2014, the Migration Review Tribunal (“the Tribunal” or “the MRT”) affirmed a decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Partner (Temporary) Class UK) visa.[1]
[1] The reasons for this decision are set out in the Court Book (“CB”) at pp.447 – 453.
By an Application filed on 2nd September 2014, the Applicant contended that the Tribunal “had committed an error in making its decision to grant the partner visa.” In his supporting affidavit, filed at the same time, the Applicant deposed that, among other things,
(a)the Tribunal [allegedly] “sought evidence to waive Schedule 3 from my review case [and] that the Applicant was given 28 days to provide evidence for the waiver”;
(b)on 6th August 2014, the Applicant’s migration agent sent the Tribunal “series of evidences that we relied upon for the waiver” (e.g. a report from the Applicant’s Wife’s psychologist, and various statutory declarations that were said to confirm, among other things, the rental arrangement entered into by the Applicant and his Wife);
(c)a copy of a submission by the Applicant’s then Migration Agent provided to the Tribunal, dated 6th August 2014 (annexure F to the Applicant’s affidavit, filed 2nd September 2014); and
(d)although no extension of time was sought, the Applicant further deposed that “I seek an extension from the Federal Circuit Court to enable me to find a lawyer who can study my case. And also prepare for an appeal to the Federal Circuit Court.”
The Applicant filed written submissions on 29th January and 26th February 2015. The Minister filed submissions on 3rd March 2015; the matter proceeded to a hearing on 10th March 2015.
For the reasons that follow, the submissions of the Minister should be accepted, and in consequence, the Application filed on 2nd September 2014 must be dismissed with costs. However, having regard to the difficulty presented by the flawed nature of the Applicant’s representation (e.g. the Applicant’s lawyer’s failure to file an amended application as directed by the Court), in my view, some allowance should be given in the sum he is required to pay.
Summary of Facts
The following summary is taken from the reasons of the Tribunal as set out in the Court Book, and from the Minister’s written submissions.
Mr Gill is a 26 year old male citizen of India (CB 23). On 11th July 2009, Mr Gill arrived in Australia as the holder of a Temporary Skilled (Subclass 572) visa (CB 9, 296). On 24th August 2011, Mr Gill's Subclass 572 visa ceased (CB 450 at [20]). I note that the Applicant thereafter applied for a skilled visa, for which he was also unsuccessful.
On 17th December 2012, the Department received Mr Gill's Application for a Partner Visa together with an Application for sponsorship in the name of Mrs Shivastika Pooja Gounder (CB 26-57). Mrs Gounder is a 23 year old female citizen of Australia, who married Mr Gill on 1st December 2012 (CB 19, 21-22, 167).
On 22nd March 2013, the Minister's delegate determined to refuse Mr Gill's application for a Partner Visa on the basis that Mr Gill was not 'the spouse', as defined by section 5F of the Migration Act 1958 (Cth) (“the Act”), of Mrs Gounder, as required by clause 820.221(2) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 294-303).
As recorded in the Tribunal’s reasons, at [5], the Tribunal said that the delegate was not satisfied that the relationship between the parties was genuine. The delegate also noted that Mr Gill was subject to the Schedule 3 requirements as he was not the holder of a substantive visa when he applied for the partner visa.
On 23rd April 2013, Mr Gill applied to the Tribunal for review of the delegate's decision (CB 309-330).
On 3rd December 2013, Mr Gill's migration agent provided a written submission and supporting material including statements from Mr Gill and Ms Gounder, their parents, rental history details and various bills issued to Mr Gill and Ms Gounder (CB 342-371).
On 17th April 2014, the Tribunal invited Mr Gill to appear before the Tribunal on 1st July 2014 pursuant to s.360 of the Act (CB 376-385). The hearing was adjourned at Mr Gill's migration agent’s request (CB 386, 392-394). On 4th June 2014, the Tribunal issued a second letter pursuant to s.360 of the Act, inviting Mr Gill to attend a hearing on 8th July 2014 (CB 395-405).
At the hearing on 8th July 2014 before the Tribunal, Mr Gill, Ms Gounder, Ms Gounder's Mother and Mr Gill's migration agent appeared (CB 409). In summary, Mr Gill's migration agent submitted that there were compelling reasons for waiving the Schedule 3 criteria (CB 451 at [27]):
a) there are issues of separation for an extended period for Ms Gounder;
b) Ms Gounder would feel compelled to leave Australia;
c) Ms Gounder would suffer significant psychological and material hardship, if Mr Gill was obliged to leave Australia; and
d) Ms Gounder relies on Mr Gill for ongoing care.
The Tribunal noted the requirements contained in Schedule 3 of the Regulations, expressed a preliminary view that there appeared to be little to support a finding that there were compelling reasons not to apply the Schedule 3 criteria, and allowed Mr Gill until 8th August 2014 to supply any evidence or submissions concerning the Schedule 3 requirements (CB 499 [10]-[15]).
By letter dated 6th August 2014, Mr Gill's migration agent provided the Tribunal with further written submissions and supporting material, including a claim that Mr Gill's claim provided physical protection and emotional support to Ms Gounder and her mother (CB 412-439).
The Tribunal’s Decision
The following summary of the Tribunal’s decision is sufficient for current purposes:
On 12th September 2014, the Tribunal affirmed the decision not to grant Mr Gill the Partner Visa. Relevantly, in its decision record (CB 447-453) the Tribunal found that:
a)because Mr Gill was not the holder of a substantive visa at the time of his Partner Visa application, he must satisfy the criteria contained in Schedule 3 of the Regulations, unless there were compelling reasons for not applying that criteria ([17]-[18]);
b)Mr Gill did not satisfy criterion 3001 of Schedule 3 because his Partner Visa application was not lodged within 28 days of the relevant day, being 24th August 2011 (when Mr Gill last held a substantive visa) ( [20]). I note too that Mr Gill submitted his Partner Visa Application on 17th December 2012, which was some 16 months later, or 5½ months out of time;
c)Mr Gill did not satisfy the Tribunal that there were compelling reasons for waiving the criteria in Schedule 3 of the Regulations, in particular:
i)the Tribunal found that there was no "economic reason” for Ms Gounder to leave Australia with Mr Gill, in circumstances where Ms Gounder was not financially reliant on Mr Gill at the time of the visa application. The Tribunal noted that she was then employed at the Bureau of Statistics and was now working for the ACT government ( [33]);
ii)on the one hand, the Tribunal accepted that Mr Gill provided some degree of emotional support, and that Mrs Gounder took out a DVO against her former Husband, but on the other hand, the Tribunal also rejected claims that Mr Gill fulfilled a significant role in providing protection to Ms Gounder's Mother at the time of the Application on the basis that Mr Gill did not live with Ms Gounder's Mother and that claims that his presence was required for protection and support were "overstating the case" ([37]);
iii)the Tribunal rejected claims that Mr Gill fulfilled a significant role in providing protection to Ms Gounder on the basis that the Partner Visa application "betray [sic: “portray”] no sense that Ms Gounder was living in fear or apprehensive about her safety" ([39]);
iv)the Tribunal accepted claims that Mr Gill provided emotional support to Ms Gounder, but the Tribunal was not satisfied that this was a “compelling reason” to waive the Schedule 3 criteria ([40]); and
v)the Tribunal found that the delay caused by Mr Gill returning to India in order to lodge a fresh partner visa application was not a “compelling reason” to waive the Schedule 3 criteria ([41]);
d)Accordingly, the Tribunal was not satisfied that there were compelling reasons to waive the Schedule 3 criteria and affirmed the Minister's delegate's decision not to grant the applicant the visa.
The Applicant’s Submissions
The Applicant’s initial (January) submissions, summarised, provided as follows; I make some comments in the course of noting these submissions. Also, I note again that the submissions were made against the background of no amended application having been filed (as directed), and therefore, the grounds of review were never particularised. This meant, among other things, that the Court, and the Minister, to a significant degree having to guess what might be a possible ground of review in the light of the general submissions made. This lack of proper attention to detail by the Applicant’s lawyer did the Applicant no favour at all. In any event, doing the best that one can, the submissions were as follows:
(a)The Applicant initially sought a “work visa”; it was refused, which made him subject to the terms of s.48 of the Act. There is an exception to that section, namely for a “partner (temporary) visa;
(b)The terms or at least the implementation of “policy” means that it is in fact impossible to secure a partner visa. I note that the Applicant’s lawyer regularly makes this claim. Unfortunately, as here, it is a simple and very broad assertion, and is not substantiated by any proper evidence. Indeed, as here, it is stated in such a way as to be, and obviously intended to be, highly prejudicial. As such, such a submission is improper;
(c)It was submitted that fulfilment of the requirements of Schedule 3 is part of the requirements to satisfy cl.820.211(2) of Schedule 2 of the Regulations, and that, because satisfaction of the relevant parts of Schedules 2 and 3 are both “the time of the application” and “time of decision”, it was wrong for the Tribunal to conclude (so it was said) that Schedule 3 was not a time of decision criteria. To say that this submission was either (or both) circular or opaque is something of an understatement. Moreover, as with many of the Applicant’s submissions, the claim here is simply assertion, the evidence, and/or legal basis for it, is not set out;
(d)Further, it was said that the Tribunal [wrongly] limited itself to considerations as at the date of the Application;
(e)In relation to pars.27-44 of the Tribunal’s decision, the Applicant contended that the Court should properly question the Tribunal’s consideration of what did and what did not constitute “compelling reasons” for the purposes of Schedule 3 of the Regulations, as well as, generally, to consider that the Tribunal’s decision-making took into account irrelevant considerations, such as the fact of the Applicant’s inability to secure a valid visa.
(f)The Applicant contended that the Tribunal’s consideration, at [30], of ‘fraudulent documents’, was an irrelevant consideration, and that, contrary to what the Tribunal actually said, “the Tribunal should never have raised it and took account of a number of irrelevant considerations”. What is unfortunately not noted here is that, at [30] of the Tribunal’s reasons, it said (emphasis added): “notwithstanding the delegate’s concerns [regarding fraudulent trade documents] and given that there has been no merits review, the Tribunal places no weight on the skilled visa history.” Indeed, to make the submission here in the face of the completely contrary position set out in the Tribunal’s decision is not only unprofessional but misleading. It borders on being scandalous;
(g)The Applicant challenged certain matters (which were matters of fact as determined by the Tribunal) set out [31] and [33] of the Tribunal’s reasons, each of which (travel to the USA by the Applicant, and Ms Gounder travelling with the Applicant to India) was said to be either an irrelevant consideration or a compelling consideration for the purposes of the Regulations. However, this submission does not address that these findings are clearly findings by the Tribunal, which were clearly open to it on the material before it. As such, absent a clearly specified or particularised ground of error, it is not evident, other than simple assertion, what the basis for the alleged error is;
(h)The Applicant challenged the various, related findings regarding the [alleged] protection of his Mother-in-law, Mrs Jaimala Gounder, in the context of alleged domestic violence against her (and Ms Gounder) in 2009 as set out in [35] – [37] of the Tribunal’s reasons. While the Tribunal found, at [37] that the Applicant provided some emotional support for/to Ms Gounder’s Mother, it also found that the reasons advanced by the Applicant in support of his visa application arising out of this support did not otherwise amount to compelling reasons for the purposes of his visa application and Schedule 3 of the Regulations. The Applicant provided no discussion of what did, and what did not, amount to “compelling reasons”, including the not insignificant jurisprudence on that subject from various Federal Court decisions;[2]
(i)Pars.20 – 26 of the January submissions discuss the High Court decision of Berenguel v Minister for Immigration and Citizenship (“Berenguel”).[3] For current purposes, other than to note that the Applicant contends – unfortunately without any reference to any relevant authority - that later cases have incorrectly understood and misinterpreted Berenguel, I will consider the Applicant’s submissions in relation to this decision later in these reasons;
(j)The Applicant further contends that the Tribunal considered the wrong clause in Schedule 3 of the Regulations, saying that the relevant clause is 3003, and not 3001, which is the clause considered by the Tribunal.
[2] See, for example, Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428; 245 ALR 691.
[3] Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; (2010) 264 ALR 417.
The Applicant’s “Outline of Submissions” (February 2015), again summarised, argued that
(a)The Applicant was required to establish that there were compelling reasons to satisfy the requirements of Schedule 3 of the Regulations;
(b)The Court should apply the ordinary meaning of the word “compelling” (again there is no reference to any relevant authority as to what does and what does not constitute “compelling reasons”);
(c)The policy of the Department of Immigration and Border Protection was, in effect, a total prohibition on the grant of a partner visa, which in turn was “an unreasonable fetter” on the exercise of the Tribunal’s and the Court’s discretion. As such, it was necessarily ultra vires the Act. Again, this submissions is simple assertion without any relevant authority to support it;
(d)It is important to set out in full one particular submission, which informed much of the submissions filed on behalf of the Applicant generally. At par.6 of the February submissions, the following was set out:
The relevant policy must also be applied in a flexible manner. The relevant policy is however being applied inflexibly. The Tribunal in this case has made no real attempt to examine the particular personal circumstances of the Applicant before arriving at its decision to refuse the visa application.
These two aspects – (i) application of departmental policy, and (ii) relevant consideration of the individual circumstances of the Applicant – are set out in various other forms in the remaining part of the February submissions. It is unnecessary to repeat them. It is, however, important again to note that such broad submissions, without reference to any relevant authority, remain simple assertion. They might properly be characterised as akin to a person standing on a “soap box” exhorting listeners to adopt a certain course of action to remedy some perceived ill. As such, “soap box” submissions of the kind made in this matter are inherently political; they are not legal submissions supported either by facts and or relevant jurisprudence. Such submissions should be made in another forum, but not in this Court. The unparticularised brevity, and also the general breadth, of the submissions make them of little assistance to the Court. For the same reasons, they are of no assistance to the Applicant.
As well, to rail against the alleged or apparent injustice being done to the Applicant may well be correct, in a moral sense; however, because of the limits of review by this Court, which includes the restraint on the Court reviewing the merits of a particular decision, simple assertion, without fact or relevant authority, fails to assist the Court in the formal determination of the Application.
The Minister’s Submissions
The first matter to address is, in part, procedural. Relevantly, the Minister said (at paras.12 – 18):
a) On 2 September 2014, Mr Gill filed an application for review (the Application) pursuant to section 476(1) the Act, seeking an order that the decision of the Tribunal be quashed. The Application specified a sole ground of review being:
The Migration Review Tribunal committed an error in making its decision to grant (sic) the partner visa"
b) This sole ground of review, without particulars, does not raise an arguable case (MZZLM v Minister for Immigration & Anor [2013] FCCA 2295).
c) On 27 October 2014, Mr Gill was granted leave to file and serve any Amended Application by 17 December 2014 and to file submissions two weeks prior to the commencement of the hearing. No amended application has been filed or served.
d) On 29 December 2014, Mr Hugh Ford served the Minister with a document described as "Applicants Further Submissions" (AFS). The Minister notes that, notwithstanding the email from his Honour's Associate dated 19 February 2015, he has not been served with a Notice of Address for Service to confirm that Mr Ford acts for the Applicant.
e) Further, on 26 February 2015, the “Applicants Outline of Submissions” (AOS) was filed with the Court.
f) On the presumption that Mr Ford does act for the Applicant, the Minister notes Mr Ford's submission that the Tribunal's decision is affected by a number of putative errors. Those putative errors may, for convenience, be summarised as follows:
i.the Tribunal made an error of law by not 'discussing' criterion 3003 (AFS [27]); and
ii.the Tribunal made an error of law in failing to consider the Applicant's circumstances which came into existence after the date of the Partner Visa application (AFS [6]-[10], [20]-[26]); and
iii.the Tribunal took into account irrelevant considerations and failed to account a relevant consideration (AFS [11]-[19]).
iv.the Tribunal erred in failing to consider the relevant policy (AOS [4]-[10]).
g) The Minister submits that the Application, in its present form, does not provide particulars which are sufficient to allow the Court to understand how it relates to the decision, the reasons for decision, the circumstances of the decision, or the procedures concerned with the making of the decision, as the case may be. If an application for leave to amend the Application were made for the limited purpose of articulating the issues ventilated in Mr Ford's written submissions and discussed below, the Minister would not oppose the making of an order pursuant to rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (the Rules).
I accept these submissions. Having accepted them, this would be more than sufficient to dismiss the Application, essentially on the basis that the Respondent(s), and the Court, do not have a case to address, which is properly and or adequately defined. It is a long-standing principle, across all jurisdictions and all courts, and irrespective that each party should have adequate notice of the case that will have to be met at the trial or hearing. It may be that on the matters presented to the Court a relevant inference may be drawn about the case to be met.[4]
[4] Generally, see the comments by Mason CJ & Gaudron J in Banque Commerciale S.A. en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at pp.286-287.
I have already noted that the original Application as filed did not relevantly particularise the grounds of review. In the various submissions filed on behalf of the Applicant, the Court (and the Minister) has had to guess the various grounds of review. This has made everyone’s task ever so much more difficult.
In addition to the submissions made, I note that, by email dated 19th February 2015, the Court requested the Applicant’s solicitor to file a Notice of Address for Service. This has never occurred.
No less relevantly, the Applicant’s solicitor sought, and was granted, leave to amend the Application filed on 2nd September, primarily in order to ensure that detailed grounds for the Application were provided. As filed, the Application was, at best, scant in detail; at worst, it was fundamentally deficient because it lacked relevant particulars to enable the Respondent(s), and the Court, to know the bases of the Application.
No Amended Application was ever filed. At the hearing, notwithstanding the failure to comply with orders, as well as the Court’s various requests, it was open to the Court simply to dismiss the Application. The Court did not take that option.
More recently still, the Court requested both parties to provide copies of their submissions in electronic (and Word version) format. The Minister did so; the Applicant’s solicitor advised, by email, simply that the Applicant had instructed him to withdraw from the matter. So the electronic form of the submissions sought, like the other matters asked of the Applicant, was not provided.
In any event, and for completeness, in addition to accepting the Minister’s submissions on the procedural matters just noted, I will traverse, very summarily, the grounds of review as set out in the Minister’s further submissions.
In circumstances of the matter generally, and specifically having regard to the less than helpful manner in which the Applicant’s [former] solicitor conducted the Application, as well as the many opportunities afforded to the Applicant (and his [former] solicitor), which were not relevantly accepted, it is as well to set out in full the comprehensive submissions of the Minister, thus (with few grammar and/or other emendations):
1) The Minister notes that the criteria to be satisfied at [the] time of decision for a Partner Visa are set out in clause 820.21 of the Regulations. Clause 820.211(2)(d)(i)(B) relevantly provided at that time that an applicant meets the requirements of that subclass if, in the case of an applicant who is not the holder of a substantive visa:
“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."
2) The Schedule 3 criteria, in essence, provide additional criteria applicable to unlawful non-citizens and certain bridging visa holders. Criterion 3001 relevantly requires that a visa application must be validly made within 28 days after the applicant last held a substantive visa. An applicant is required to satisfy each of criteria 3001, 3003 and 3004 (where applicable), unless the Tribunal, standing in the shoes of the Minister, is satisfied that there are compelling reasons for not applying those criteria.
3) In this case, the Tribunal found that as Mr Gill last held a substantive visa on 24 August 2011 and his Partner Visa application was not made until 17 December 2012, more than 28 days had passed since the relevant day and accordingly Mr Gill did not meet criterion 3001 (CB 450 [19]-[20]). The Tribunal was not satisfied that there were compelling reasons for not applying criterion 3001 (CB 453 [41])
4) Mr Ford submits (at [27]) that “3001 is the wrong provision. The correct provision is 3003 … 3001 does not talk about the issue of compelling circumstances".
5) The Minister accepts that criterion 3003 contains the words “compelling reasons". However, the Minister submits that the inclusion of the words “compelling reasons” in criterion 3003 do not, of themselves, mean that the Tribunal was bound to consider that criterion. The Minister submits that criterion 3003, properly construed, does not apply to Mr Gill for reasons including that he was the holder of a substantive visa on after 1 September 1994 (cf. criterion 3003(a)).
6) The Minister submits that no error of law is revealed from the putative failure to consider a criterion that did not apply to Mr Gill. Rather, the Minister submits that the Tribunal correctly identified and applied criterion 3001. The Minister notes that the Tribunal expressly referred to each of “criteria 3001, 3003, and 3004” (CB 450 [18]). The Minister submits that on a fair reading of the Tribunal's decision record, it considered the applicable Schedule 3 criteria, being criterion 3001.
Did the Tribunal err in failing to consider the Applicant's circumstances after the date that the Partner Visa application was made?
7) In its decision record, the Tribunal states that (CB 450 [26]):
“The Schedule 3 criteria are clearly prescribed as 'time of application' criteria. In this respect, the tribunal would be precluded from considering compelling reasons that arose or occurred after the date of application".
8) The Minister submits that the Tribunal's statement is correct as a matter of law. As Wilcox J found in Boakye-Danquah v Minister for Immigration [2002] FCA 438; (2002) 116 FCR 557, 565 at [33] (emphasis added by the Court]:
"… it is clear that the criterion was intended to be satisfied as at the time of application - as cl 820.211 itself requires - and only as at that date. The criterion is concerned with the circumstances in which an application is made. The decision-maker has to make a judgment about those circumstances, but that is all. There was obviously no intention that an applicant be required also to demonstrate compelling reasons arising out of the circumstances applying at the date of decision."
9) Mr Ford submits that clause 820.211(2) is required to be satisfied at the time of the application and also at the time of the decision and cites the decision of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251 (Berenguel).
10) In Chan v Minister for Immigration & Anor [2015] FCCA 47 (Chan), Judge Driver considered whether the Tribunal was required to look at the Schedule 3 criteria and any compelling reasons for not applying those criteria as at the date of the application or as at the date of the decision. The applicant in that case sought to rely, as here, on the decision of the High Court in Berenguel. In Chan, his Honour remarked (at [36]):
“In my opinion, the present circumstances can be distinguished from those in Berenguel… . Berenguel concerns the proper construction of regulation 1.15B as it then stood. In my opinion, there is a critical distinction between a requirement that an applicant demonstrate competent English … and a discretion to waive a visa criterion requiring an application to be made within 28 days of the last substantive visa ceasing. It is logical to expect that the circumstances justifying the waiver of the condition would exist at the time that the visa application was made."
11) Consistent with Judge Driver's decision in Chan, the Minister submits that Berenguel should be distinguished from the present case. The Tribunal correctly identified that it was required to consider whether it was satisfied that there were compelling reasons to waive the Schedule 3 criteria at the time of the application. No error is revealed in this regard.
Did the Tribunal take into account irrelevant considerations or fail to take into account a mandatory relevant consideration?
12) Mr Ford submits that the Tribunal erred in taking into account irrelevant considerations and/ or failing to take into account relevant considerations and therefore the Tribunal fell into jurisdictional error. Before dealing with the specific issues said to reveal jurisdictional error, it is worthwhile to recall the general principles in relation to the law of relevant and irrelevant considerations.
13) In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) at 39, Mason J observed that (citations omitted):
“(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision … .
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. … If the relevant factors - and in this context I use the expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors which the decision-maker may legitimately have regard."
14) In Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, 375, Deane J observed that a decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an “exhaustive list of all of the matters which the decision-maker might conceivably regard as relevant".
15) In this case, Mr Ford has provided a long list of issues and asserted that they are either relevant or irrelevant. Mr Ford has not identified a basis upon which it is said that the Tribunal was either bound to consider those issues or forbidden from considering those issues. Nor has Mr Ford identified the way that those considerations affect the exercise of the Tribunal's power. Accordingly, no jurisdictional error has been revealed.
16) The Minister notes that there are no express mandatory relevant considerations or express statutory prohibitions upon what may be considered in reaching a state of satisfaction as to the existence of “compelling reasons” for the purposes of clause 820.211(2)(d)(ii) of the Regulations. Consistent with Mason J's decision in Peko-Wallsend, the identification of such considerations must be determined as a matter of implication from the subject matter, scope and purpose of the Act.
17) In McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10] (McNamara), Whitlam J remarked:
“There is no true construction of the expression in question. Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment. In the present case the Tribunal considered whether the reasons advanced by the applicant justified not applying the criteria. That approach reveals no error."
18) The Minister submits that in this case, like in McNamara, the Tribunal had regard to whether the claimed reasons advanced by the applicant justified not applying the Schedule 3 criteria. The Minister submits that no error is revealed in this regard.
19) In relation to specific matters that the Tribunal is said to have erroneously considered or failed to consider, Mr Ford submits that the following issues were irrelevant considerations that the Tribunal erroneously took into account:
a) “the nature of the relationship” AFS [14]);
b) “whether the applicant's visa ceased”, “that the applicant sought review,” and “fraudulent documents” (AFS [15]-[16]);
c) “that there is no evidence that the applicant has a right to return to the United States” (AFS [17]); and
d) “the issue of domestic violence” (AFS [19]).
The nature of the relationship
20) In relation to the “nature of the relationship", Mr Ford appears to submit that the Tribunal erred in finding that Mr Gill's relationship was “bogus” and, on that basis, dismissing the claimed “separation issues” (AFS [14]).
21) The Minister submits that on a fair reading of the Tribunal's decision record, the Tribunal did not find that the relationship was “bogus.” Rather, the Tribunal was unable to find that Mr Gill and Mrs Gounder's relationship was “long term” at the time of application (CB 461 [28]).
22) The Minister submits that the Tribunal properly considered the nature of Mr Gill and Mrs Gounder's relationship in addressing the claimed “separation issues.” The Tribunal found that Mr Gill and Mrs Gounder would be disappointed and upset if Mr Gill were required to return to India to lodge a fresh partner visa application and that such an occurrence would delay plans they claimed to have to start a family, however the Tribunal was not satisfied that these were compelling reasons to waive the Schedule 3 criteria (CB 452 [41]). The Minister submits that this was conclusion [sic] open to the Tribunal and that no jurisdictional error is revealed.
Whether the applicant's visa ceased, that the applicant sought review and 'fraudulent' documents
23) Mr Ford submits that:
a) “It is irrelevant to the issue of separation whether the applicant's visa ceased or for that matter that the applicant sought the review of a decision by the Tribunal.” (AFS [15]);
b) “The issue of fraudulent documents is also an irrelevant consideration. … The Tribunal should never had raised it …” (AFS [16]).
24) The Minister submits that these matters are referred to by the Tribunal for the limited purpose of highlighting that the Tribunal decided the matter on an alternative basis to that of the delegate.
25) In any event, the Minister notes that on a fair reading of the Tribunal's decision record, the Tribunal gave those issues “no weight" (CB 451 at [29]). The Minister submits that the fact that the Tribunal attributed no weight to those issues means that those factors did not affect, one way or another, the Tribunal's lack of satisfaction as to the claimed compelling reasons and that therefore the putative error identified by Mr Ford is harmless (Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at 40 [120]-[125]).
Mr Gill's rights to return to the United States
26) Mr Ford appears to submit that the Tribunal erred in having regard to the Applicant's evidence that he had no right of return to the United States (AFS [17]).
27) The Minister submits that on a fair reading of the Tribunal's decision, the Tribunal simply accepted the evidence given by Mr Gill that he would return to India where he had no immediate family, albeit that the Tribunal was not satisfied that this was not a compelling reason to waive the Schedule 3 criteria (CB 453 [42] and CB 451 [31]). The Minister submits that no jurisdictional error is revealed in this regard.
Domestic violence
28) Mr Ford appears to submit that the Tribunal did not consider Mr Gill's claimed role in providing protection to Mrs Gounder and her mother (AFS [19]).
29) The Minister submits that the Tribunal gave extensive consideration to Mr Gill's claim, albeit that the Tribunal rejected those claims as a sufficient basis to conclude that there were compelling reasons (CB 452-453 [34]-[39]). In this context, the Applicant's submissions invite the Court to engage in impermissible merits review.
Did the Tribunal err in failing to consider the relevant policy
30) Mr Ford submits that the Tribunal made an error of law by not 'examining' the policy (AOS [10]).
31) The Minister notes that the Tribunal expressly cited the policy guidelines and observed that they provide examples which may constitute compelling reasons in an individual case (CB 450 [25]). The Tribunal went on to observe, in the Minister's submission correctly, that the Tribunal was not bound by the policy (CB 450 [24]) (Nikac v Minister for Immigration and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65) and that:
"… the fact that a person may or may not meet a particular policy guideline does not necessarily rule in or rule out compelling reasons. It all depends on the facts of the particular case.”
32) The Minister submits that there is no error revealed in the Tribunal's observations as to the application of the policy guidelines. The Minister submits that the Tribunal was plainly aware of the policy guidelines and had taken them into account. The Tribunal then proceeded, correctly, to consider the facts and circumstances of Mr Gill's particular case to determine whether there were compelling reasons.
In addition to the occasional comment noted by the Court in the course of the Applicant’s submissions, I accept the Minister’s submissions. Further, although the Minister submitted only in one respect that the Application sought impermissible merits review, in my view, it is more than arguable that most if not all of the Applicant’s submissions were an extended exercise of, or attempt at, merits review. Such a course has long been impermissible, according to the regularly quoted words of Brennan J in Attorney-General for the State of New South Wales v Quin, where his Honour said, at pp.35-36 (emphasis added):[5]
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.
[5] Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1.
Brennan J’s words aptly describe the Application before the Court. In my view, no jurisdictional error has been relevantly particularised or established.
Accordingly, for the reasons given, and the submissions accepted, the Application, filed 2nd September 2014, must be dismissed. For the brief reasons given, notably in relation to the difficulties posed to the Court by the poor attention to relevant detail by the Applicant’s former lawyer for which the Applicant cannot be held responsible, the Applicant is to pay the Minister’s costs fixed in the sum of $3000.00.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 30th September 2015
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