Gjecaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 936
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gjecaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 936
File number: MLG 2104 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 11 November 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Partner (Temporary) (Class UK) visa – whether Tribunal misunderstood or misapplied the term ‘compassionate … circumstances’ in Public Interest Criterion 4020(4)(b) – whether Tribunal decision was legally unreasonable – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth), ss 476, 477
Migration Regulations 1994 (Cth), Sch 2 cl 820.226, Sch 4 PIC 4020
Cases cited: Chan v Minister for Immigration and Border Protection [2018] FCA 1323
Damouni v Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 40 FCR 76; [1989] FCA 246
Gjecaj v Minister for Immigration and Border Protection [2016] FCCA 2812
Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300
Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184
Kumar v Minister for Immigration and Border Protection [2016] FCA 1330
Minister for Immigration and Border Protection v Mohammed (2019) 269 FCR 70; [2019] FCAFC 49
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480; [1992] FCA 3
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109
Teo v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 242; [1994] FCA 778
Thongpraphi v Minister for Immigration and Multicultural Affairs [2000] FCA 1590
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 358 FLR 269; [2021] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 14 December 2021 Place: Perth Counsel for the Applicant: Mr M Albert and Ms E Tadros Solicitor for the Applicant: Aila Rose Melasecca Barristers & Solicitors Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2104 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANTON GJECAJ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari issue quashing the decision made by the second respondent on 28 August 2017.
3.A writ of mandamus issue directed to the second respondent requiring the second respondent to reconsider the application for review according to law.
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 LADHAMS:
INTRODUCTION
This is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 28 August 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).
The originating application to this Court was filed on 2 October 2017. The applicant now relies on an amended application filed on 17 November 2021 which raises two grounds of application. The first ground asserts that the Tribunal misunderstood or misapplied the phrase ‘compassionate … circumstances’ in Public Interest Criteria (PIC) 4020(4)(b) and the second ground asserts that the Tribunal decision was legally unreasonable.
For the reasons explained below, I have found that there is jurisdictional error in the Tribunal’s approach to PIC 4020(4)(b). I therefore issue writs of certiorari and mandamus to quash the Tribunal decision and remit the matter to the Tribunal for reconsideration according to law.
BACKGROUND
The applicant applied for the partner visa on 15 October 2013 with the assistance of a migration agent. The applicant was sponsored by his wife, Ms Bojanic (sponsor). The applicant and the sponsor married on 24 December 2012.
On 19 December 2013 a delegate of the Minister refused to grant the applicant a partner visa on the basis that the applicant failed to satisfy cl 820.226 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because he did not satisfy PIC 4020. The delegate found that the applicant did not meet PIC 4020 because he had given a bogus document to the Department, namely a passport in another person’s name, in relation to a visa which he held in the 12 months before applying for the partner visa. The delegate was not satisfied that there were any relevant compassionate or compelling reasons to justify the grant of the visa.
On 7 January 2014 the applicant applied to the Migration Review Tribunal (MRT) for review of the delegate’s decision. On 18 December 2014 the MRT affirmed the decision under review.
The applicant sought judicial review of the MRT decision and on 9 November 2016 the Federal Circuit Court of Australia set aside the MRT decision and remitted the matter to the Tribunal for reconsideration: Gjecaj v Minister for Immigration and Border Protection [2016] FCCA 2812. Judge McGuire held that the MRT fell into jurisdictional error by failing to consider two statutory declarations directly relevant to whether there were compassionate or compelling circumstances.
On 28 August 2017 the Tribunal, differently constituted, affirmed the decision under review.
TRIBUNAL DECISION
The Tribunal found, and the applicant did not dispute, that the passport on which the applicant had travelled to Australia was a bogus document which the applicant had given or caused to be given to the Minister or an officer. The Tribunal found that the applicant therefore did not meet PIC 4020(1).
The Tribunal acknowledged that the requirements of PIC 4020(1) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.
The Tribunal did not identify any compelling reasons that might affect the interests of Australia on the evidence before it.
The Tribunal did not consider the circumstances raised by the applicant affecting his parents, who are permanent residents, to be compassionate or compelling. The Tribunal accepted that the applicant is close to his parents and is of benefit to their well-being. However, the Tribunal considered that the closeness of the applicant to his parents arose in the context of his breach of immigration laws and any distress felt by the separation of the applicant’s parents to the applicant was a direct consequence of his continued attempt to circumvent Australia’s immigration law.
The Tribunal accepted that the applicant has a close relationship with his older brother and the older brother’s preference was for the applicant to remain in Australia. However, the Tribunal had limited evidence before it to suggest that any hardship suffered by the applicant’s departure would be other than what other close siblings might feel. The Tribunal did not identify any compassionate or compelling circumstances that affect the interests of the applicant’s brother that justify the granting of the visa. The Tribunal also accepted that the applicant played a role in assisting his brother and wife raise their young family but this was not sufficient to amount to compelling or compassionate circumstances that affect the interests of these Australian permanent residents and citizens to justify granting the visa. The Tribunal considered that the applicant’s relationship with his nieces and nephews did not amount to compassionate or compelling circumstances to waive the PIC 4020(1) requirements.
The Tribunal accepted that the sponsor found the thought of being separated from the applicant distressing and the applicant’s migration status has precipitated some mental health concerns for the sponsor. The Tribunal also accepted that the sponsor is vulnerable because of her upbringing. The Tribunal accepted that the sponsor would suffer a decline in her mental health if she did not seek assistance from a medical practitioner or mental health expert, and even with that support, she may continue to experience distress if the applicant is away overseas. However, the Tribunal had no reason to consider that she could not access the tools at her disposal to seek assistance as required from medical professionals. The Tribunal also took into account that the sponsor’s distress was a direct result of the applicant’s serious breaches of Australian immigration laws and that the three-year exclusion period is a consequence of the applicant’s conduct. The Tribunal did not consider that the fact that the relationship may be genuine and continuing gives rise to compassionate and compelling circumstances for waiving the PIC 4020 requirements. The Tribunal considered that, while the sponsor’s separation from the applicant was undesirable, it did not comprise compassionate or compelling circumstances that affect an Australian citizen that justify the granting of the visa.
The Tribunal found that the applicant did not satisfy PIC 4020 for the purposes of cl 820.226 and affirmed the delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
In his amended application, the applicant raises the following two grounds:
1.The Tribunal erred by acting on an incorrect understanding and/or application of the applicable law, namely the relevant meaning of ‘compassionate circumstances’.
2. The Tribunal’s decision was legally unreasonable.
Unfortunately, the grounds were not particularised. The Court has endeavoured to understand the grounds as they were explained in submissions. This has presented more of a challenge than usual in the present case as the applicant’s explanation of ground 1 appears to have changed somewhat between written submissions and oral submissions, possibly in response to the Minister’s written submissions and the cases cited therein. A properly particularised application not only puts a respondent on notice of the case they must answer, but also makes clear to the Court the questions which the Court must decide.
Relevant Legislation
The case before the Court concerns the proper understanding and application of PIC 4020. PIC 4020 relevantly provides:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
…
Ground 1
In his written submissions, the applicant submitted that the Tribunal misunderstood or misapplied the term ‘compassionate circumstances’ in three main ways. The applicant described the three errors under headings, which I set out below along with a brief description of the alleged errors:
(a)The ordinary meaning was not applied – The applicant accepted that the meaning of ‘compassionate’ set out in the Tribunal reasons was accurate, but referred to a number of findings which he submitted showed that the ordinary meaning was not applied.
(b)A comparative analysis was central to the Tribunal’s reasoning – The applicant submitted that the Tribunal erred by comparing the circumstances of those who would be affected by the applicant’s departure from Australia with others in a like situation.
(c)A mixed, subjective approach was adopted by the Tribunal – The applicant submitted that the Tribunal erred by allowing its consideration of whether the applicant had provided a bogus document to infiltrate its consideration of whether there existed compassionate circumstances.
In oral submissions, Counsel for the applicant again submitted that the Tribunal made three different errors in its interpretation or application of the term ‘compassionate circumstances’, but described the three errors differently to the way that they were described in the written submissions. The asserted errors as described in the applicant’s oral submissions are:
(a)The Tribunal conflated different parts of the inquiry – This asserted error is similar to the error described in [20(c)], albeit the applicant’s Counsel identified in oral submissions that the error asserted was that in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109 (Singh), a case which had not been cited in the applicant’s written submissions and, as explained below, described the relevant error differently to how it had been described in the applicant’s written submissions.
(b)The Tribunal engaged in a comparative rather than absolute analysis – This asserted error was essentially the same as the error asserted in the written submissions as described at [20(b)] above.
(c)The Tribunal failed to engage in a holistic assessment of whether there were compassionate circumstances – Counsel for the applicant indicated in oral submissions that the applicant relied on Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480; [1992] FCA 3 (Sacharowitz) and Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 358 FLR 269; [2021] FCCA 1091 (Wu) in relation to this error. This was a new assertion of error not raised in the written submissions.
Taking into account the applicant’s written submissions and oral submissions, ground 1 raises the following questions:
(a)Did the Tribunal impermissibly take into account the applicant’s conduct in providing a bogus document to the Department in assessing whether compassionate circumstances existed that affected the interests of an Australian citizen or Australian permanent resident?
(b)Did the Tribunal properly apply the ordinary meaning of the word ‘compassionate’ in reaching its decision?
(c)Did the Tribunal err by engaging in a comparative analysis, rather than an absolute analysis, of whether compassionate circumstances existed?
(d)Did the Tribunal fail to engage in a holistic assessment of whether there were compassionate circumstances?
Did the Tribunal impermissibly take into account the applicant’s conduct in providing a bogus document to the Department in assessing whether compassionate circumstances existed that affected the interests of an Australian citizen or Australian permanent resident?
This question was raised, albeit in slightly different ways, in the applicant’s written and oral submissions.
The applicant said in his written submissions (footnotes omitted):
23.The law requires that the Tribunal consider at a first stage of the inquiry whether there was a bogus document. Then and only then does the Tribunal move to the second stage of the inquiry relevantly concerning ‘compassionate circumstances’. The relevant test did not require a weighing of compassionate circumstances with the very reason the Tribunal reached that stage of the inquiry.
24.In this case, the Tribunal let the first stage infiltrate or re-emerge as a consideration in the second. That is, the Tribunal got distracted from its statutory task of determining two matters distinctly from one another, and rather let itself be diverted from determining whether there were objectively ‘compassionate circumstances’ on its own.
…
26.…[The Tribunal] subjectively assessed compassionate circumstances as if they were modified or to be recalibrated by the very reason that that inquiry was being undertaken in the first place. Put another way, the Tribunal considered the bogus document issue at both that stage and the one which is necessarily premised on a bogus document having been found to have been used.
27.By so doing it also erred in its understanding and application of the applicable law. A lawful analysis would have considered whether there was a bogus document and where that was found, then separately considered whether objectively ‘compassionate circumstances’ existed. That was not the analysis undertaken here.
In his oral submissions, Counsel for the applicant submitted that the present case was on all fours with Judge Driver’s judgment in Singh, which had been cited in the Minister’s submissions.
In Singh, Judge Driver referred to a two-staged inquiry in relation to the consideration of PIC 4020(4), derived from the judgment of the Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184 (Kaur). The two stages referred to by Judge Driver in Singh were different from the two stages referred to by the applicant in his written submissions, and at places in his oral submissions, Counsel for the applicant referred to a three-staged inquiry, presumably in acknowledgement that he had departed from the stages identified in his written submissions. In Singh, Judge Driver said at [27] and [31] (footnotes omitted):
27.In the present case, having found that PIC 4020(1) had been engaged by the provision of a bogus document, the Tribunal was then required to set up the two-staged inquiry, namely:
(a)whether there were compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen/resident; and
(b)then (and only then) if there were such circumstances, whether these justify the granting of the visa.
…
31. The Tribunal should have asked itself:
(a) do the claimed circumstances amount to compelling/compassionate or compelling circumstances?” Then (and only then), if “yes”,
(b)when weighed against the conduct of the applicant, do the circumstances justify the granting of the visa?
The Minister submitted that the summary of the two steps in Singh is not an accurate reflection of the Full Court’s comments in Kaur.
In Kaur, the Full Court said at [26]:
Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]–[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
The Minister’s position, set out at [17] of the Minister’s written submissions, suggests the following two steps:
17.1.first, the Tribunal must form a state of satisfaction as to whether there are compassionate or compelling circumstance that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa; and
17.2. secondly, the Tribunal must then go on to consider the exercise of its discretion, by balancing the compassionate/compelling circumstances with the nature and seriousness of the fraud and other matters going to the discretion.
Taking into account the way this was explained in oral submissions, I understand the Minister’s position to be that the phrase ‘justify the granting of the visa’ falls to be considered in the first stage of the inquiry in a way that qualifies the phrase ‘compassionate or compelling circumstances’. The Minister’s position is that the discretion to be exercised in the second stage of the inquiry is the discretion evident from the chapeau in PIC 4020(4) that the Minister may waive the need to comply with PIC 4020(1) and (2).
I do not accept that the Court in Singh misunderstood the two-staged test as described in Kaur in the manner alleged by the Minister. Another case against the Minister’s construction is Wu, which was referred to by the parties in their submissions to the Court, albeit in a different context. In Wu, Judge Lucev referred to Kaur and then said at [12] (emphasis added):
The appropriate inquiry under PIC 4020(4) (a) or (b) of Sch 4 to the Migration Regulations is a two-stage inquiry. The first stage of the inquiry through PIC 4020(4)(b) of Sch 4 to the Migration Regulations is to consider whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The word “or” is ordinarily treated as being disjunctive: Uddin v Associated Portland Cement Manufacturers, Ltd [1965] 2 QB 582 ; R v Surrey Quarter Sessions, ex parte Cmr of Metropolitan Police [1963] 1 QB 99. In this case that means that the circumstances identified by a decision-maker are not required to be both compassionate “and” compelling: Kaur v Minister for Immigration & Border Protection [2018] FCCA 1614; (2018) 334 FLR 281. The second stage is discretionary. It requires a decision-maker to consider whether the compassionate or compelling circumstances identified in the first step justify the grant of the Partner Visa.
In my view it is appropriate that the two-staged inquiry discussed in Kaur be interpreted in a manner consistent with how it has been interpreted in Wu and Singh. As a matter of comity, I should follow these two cases unless I consider that they are plainly wrong. I do not consider that they are plainly wrong, and I consider that those two cases accurately reflect what the Full Court said in Kaur.
In oral submissions, Counsel for the applicant drew attention to the similarity in headings used in the present matter and in Singh. In both cases, the Tribunal used the headings ‘Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?’ and ‘Should the requirements of [PIC] 4020(1) or (2) be waived?’.
Judge Driver in Singh at [28] said of the second heading:
Here, the Tribunal conflated the two inquiries in the same manner as the appellant in Kaur. It did this in the heading at [35], by going directly to the second stage of the inquiry, asking “[s]hould the requirements of PIC 4020(1) or (2) be waived?” This heading omitted the necessary first stage of the inquiry; namely, whether there existed any compelling or compassionate, or compelling circumstances.
While I acknowledge the similarities in the headings used in this matter and in Singh, I would not find that the Tribunal conflated the separate stages of the inquiry based on the headings alone. If the Tribunal reasons reflected that the heading used simply signposted its consideration of PIC 4020(1) and PIC 4020(4) respectively, there would not be jurisdictional error. I consider the Tribunal reasons in greater detail below.
Counsel for the Minister drew attention to the factual differences between the present matter and Singh. The nature of the conflation in Singh was identified at [29] in the following manner (footnotes omitted):
Under this heading the Tribunal asked itself whether there were “compelling circumstances” or “compassionate or compelling circumstances”, but in answering this question it repeatedly referred to Mr Singh’s fraudulent conduct, in a manner that derogated from the compassionate or compelling nature of the circumstances:
(a)in relation to the letter from the accountant, the Tribunal at [51] placed “significant weight on the applicant’s conduct as against the more generalised statements from the accountant, stressing a commercial imperative”;
(b)in relation to the letter from Musa, the Tribunal at [59] found that the circumstances set out in that letter were “not so sufficiently compelling, when set alongside the fact of the applicant’s fraud”; and
(c)in relation to evidence of the effect of the Panama disease, the Tribunal at [66] stated that, in determining whether that evidence was “compelling” it “must be weighed against other factors, such as the integrity of the visa program and the seriousness of the intentional fraud undertaken by the applicant”.
Counsel for the Minister submitted that in Singh, the Tribunal repeatedly offset the existence of compassionate or compelling circumstances by balancing it against the applicant’s conduct. That was said to be different from what the Tribunal did in the present case. Counsel for the Minister submitted that in the present case, the Tribunal took into account the applicant’s conduct in considering the foreseeability or inevitability of events unfolding the way they did and in considering the distress or psychological hardship suffered by the relevant people. The Minister submitted that the Tribunal did not find that the applicant’s conduct outweighed the existence of compassionate or compelling circumstances, but rather that the predictability or foreseeability of a separation occurring made those circumstances less compassionate, or perhaps insufficiently compassionate.
Counsel for the Minister relied on Chan v Minister for Immigration and Border Protection [2018] FCA 1323 (Chan) to support the proposition that the Tribunal may have regard to the foreseeability and predictability of an event occurring. In that case, the Federal Court considered a decision in which the Tribunal had reasoned, in relation to whether there were compelling reasons for not applying the Schedule 3 criteria (see Chan at [12]):
…Whilst the Tribunal appreciates a period of separation will present some difficulties for the parties the Tribunal does not consider that the subsequent difficulties that may arise for the parties during a separation were difficulties that were not reasonably foreseeability at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa. The Tribunal is not persuaded on the evidence that the effects of separation on the relationship are a compelling reason not to apply the Schedule 3 criteria.
The Federal Court then addressed this reasoning at [52] of its reasons and said:
I am not persuaded that the Tribunal approached the meaning and application of “compelling reasons” in the rigid fashion suggested by the appellant. In the passage of its Decision Record quoted at [12] above, the Tribunal recognised and accepted that a period of separation for the appellant and the sponsor would present difficulties for them. Its reference in that passage to reasonable foreseeability was no more than an observation that these difficulties could not have been unexpected at the time that the appellant and the sponsor entered into their relationship, given that the appellant did not have a valid visa at that time. That observation was pertinent and was no more than part of the mix of considerations the Tribunal took into account in reaching its evaluation as to whether compelling reasons to waive the Sch 3 criteria existed.
I consider the Minister’s submissions in relation to specific paragraphs below. However, I would make the general observation that I do not see Chan as particularly helpful in resolving this matter. The question for the Court to consider in Chan was, relevantly, whether a consequence of the visa applicant’s conduct that was reasonably foreseeable could amount to a ‘compelling reason’ to waive the Schedule 3 criteria. It does not appear that the Court was referred to Kaur, which is unsurprising given that Kaur was more directly concerned with the wording of the criteria in PIC 4020(4).
The applicant identified a number of paragraphs in the Tribunal decision that was said to disclose the error alleged. The paragraphs identified in the applicant’s written submissions were [37]-[38], [48], [81]-[82]. In oral submissions, Counsel for the applicant identified that the paragraphs that disclose this error are [35], [39], [48], [58], [60], [82], [83], and [94].
Some of these paragraphs are simply a summary of the relevant law ([35]), a summary of submissions advanced to the Tribunal ([38]) or an expression of the Tribunal’s conclusion ([37], [94]) and do not of themselves disclose the alleged error. I address the other paragraphs identified by the applicant’s counsel below:
At [39], the Tribunal said:
The notion of causing to give false or misleading information does not require an element of awareness by the applicant that a bogus document was provided or indeed an explanation for such conduct. In this case, however, the Tribunal considers that the applicant was well aware that the documentation presented at the airport overseas as well as in Australia did not refer to him. The applicant’s lengthy history in attempting to circumvent Australia’s immigration laws confirms that the applicant has been prepared to wittingly provide false or misleading information, including a bogus document. The applicant’s migration agent has also argued that there are mitigating circumstances in that the applicant actually revealed to the department with the encouragement of his spouse, that he had travelled to Australia on a false passport and had he not disclosed to the department how he had come to Australia he may still be living in the community as Mr Lorenzo Garbin. In any event, the level of complicity by the applicant in the provision of the bogus document is immaterial.
In my view, this paragraph is more appropriate to the second stage of the inquiry. However, I do not consider that this paragraph, separately to the paragraphs discussed below, has been relied upon by the Tribunal to find that there are no compassionate circumstances affecting the interests of an Australian citizen or permanent resident. The paragraph does not disclose jurisdictional error.
The Tribunal’s reasons at [48] should be read in conjunction with [49], and in the context of the conclusion expressed at [47] that the circumstances provided that affect the interests of the applicant’s parents are not compassionate or compelling. At [48]-[49], the Tribunal said:
48. The Tribunal appreciates that the applicant has now settled into life with his parents and that he is of benefit to their well-being. However, his closeness to his parents has arisen in the context of the applicant having gained an advantage by coming to Australia on a false passport, otherwise he would still have been serving more than two of the three year exclusion period outside Australia. Any distress felt by the separation of the applicant’s parents to the applicant is a direct consequence of his continued attempt to circumvent Australia’s immigration laws.
49.The Tribunal does not accept that any separation by the applicant’s parents and the applicant will cause significant hardship over and above that caused to others caught in the same immigration circumstances and the Tribunal is not satisfied that compassionate or compelling circumstances that affect the applicant’s Australian permanent resident/Australian citizen family members’ interests arise to justify the grant of the visa.
Counsel for the Minister submitted that [48] of the Tribunal’s reasons should also be read with [46], where the Tribunal observed that the applicant’s parents chose to travel to Australia at a time when the applicant’s visa had been refused, and that it was foreseeable at the time they travelled to Australia that the family would be broken up. Counsel for the Minister submitted that, when read in context, the Tribunal was simply saying that the closeness between the parents and the applicant arose in a context where the Tribunal considered it was foreseeable that they would be separated, and the closeness was re-achieved only by a breach of the law and in circumstances which must have been seen as inevitable. While I accept that the Tribunal’s reasons can be characterised in this way, these matters are relevant to the discretion in the second stage of the test, namely whether any compassionate circumstances affecting the interests of the applicant’s parents justify the grant of the visa to the applicant.
In my view, and taking into account the way in which the two-staged inquiry was addressed in Singh, [48] discloses that the Tribunal impermissibly took into account the applicant’s conduct in providing a bogus document and circumventing Australia’s immigration laws in deciding whether there are compassionate circumstances affecting the interests of the applicant’s parents. While it would have been open to the Tribunal to take into account in the discretionary second stage of the inquiry the matters raised in [48] from the second sentence, it was not open to the Tribunal to take these matters into account in deciding whether there were compassionate circumstances. I take into account in reaching this conclusion that the final phrase used in [49] is consistent with the words used in PIC 4020(4). However, when the Tribunal reasons are read as whole, it appears that the Tribunal has taken the applicant’s conduct into account in reaching its conclusion, expressed at [47] that the circumstances affecting the applicant’s parents are not ‘compassionate or compelling’.
At [58], the Tribunal commenced its consideration of whether there were compassionate circumstances affecting the interests of the sponsor and said:
The Tribunal is satisfied that Ms Bojanic has not played any role in the applicant’s adverse conduct towards Australia’s immigration laws. The Tribunal is mindful that in many ways she is a victim of the applicant’s serious breaches of Australian laws.
While this paragraph refers to the applicant’s conduct, it does not disclose that the Tribunal relied on the applicant’s contraventions of Australia’s immigration laws in finding that there were no compassionate circumstances affecting the sponsor’s interests. This paragraph does not give rise to jurisdictional error.
At [60], the Tribunal reflected on the evidence provided by the sponsor’s psychologist. In this paragraph, the Tribunal said:
The Tribunal has had regard to Mr Kleynhans’ report which details the sponsor’s circumstances as narrated by her, even though the Tribunal notes that the extent of the applicant’s dubious contact in ever getting into Australia in the first instance, starting with the pretence that he was involved in a music folklore group and then gave false and misleading information to the department about the composition of his family in relation to his Remaining Relative visa is not referred to, even though Mr Kleyhans was prepared to opine that there are compelling reasons — something the Tribunal considers was beyond his remit in any event.
Although this paragraph suggests that the Tribunal incorrectly considered that the conduct of the applicant may be relevant to whether there were compelling reasons, the paragraph would not on its own give rise to jurisdictional error. The paragraph is first and foremost a comment on evidence and, in particular, a comment that the evidence of the psychologist has been taken into account. I accept the Minister’s submission that, at this point, the Tribunal is simply making findings about the weight to be given to the psychologist’s report. The paragraph does, however, when considered in the context of the Tribunal’s reasons as a whole, reinforce the conclusions that I have reached elsewhere that the Tribunal has conflated the two stages of the inquiry relevant to PIC 4020(4) as discussed in Kaur, Singh and Wu.
After considering in some detail the psychologist’s report and other evidence relating to the sponsor, the Tribunal said at [81]-[83]:
81. The Tribunal has had regard to the sponsor’s circumstances and accepts that she will suffer a decline in her mental health if she does not seek assistance from a medical practitioner or other mental health expert, and even with such support, may continue to experience distress because the applicant is away overseas. Nonetheless, Ms Bojanic as verified by Mr Crewdson at hearing was now mature. The Tribunal has no reason to consider that the applicant cannot access the tools at her disposal to seek assistance as required from medical professionals.
82.Furthermore, Ms Bojanic’s distress is a direct result of the applicant’s serious breaches (several) of Australia’s immigration laws. The three year exclusion period is a consequence of the applicant’s conduct. He has already avoided a previous three-year exclusion period imposed on him and as such has manipulated his circumstances such that it was inevitable that Ms Bojanic would feel distressed at being separated from a husband to whom she has been married now for some time.
83.Moreover, it is not a surprise to Ms Bojanic that the applicant was required to comply to the requirements of his visas and that providing false and misleading information to the department would result in another three year ban.
The Minister submitted that [82] is another example of the Tribunal referring to the foreseeability and inevitability of the events unfolding in the way that they did when considering whether the circumstances were compassionate or compelling. Again, in my view, while this may be the case, it is reasoning relevant to the exercise of the discretion in the second stage of the inquiry rather than to determining whether compassionate or compelling circumstances exist.
The Tribunal’s reasoning at [82] reflects that it took into account the applicant’s conduct in deciding whether there exist compassionate circumstances affecting the interests of the sponsor. This was an error. I again take into account that the Tribunal’s conclusion reflects the language used in the legislation. This conclusion is expressed at [89], where the Tribunal said:
Whilst undesirable, the Tribunal does not consider that her separation from the applicant comprises compassionate or compelling circumstances that affect an Australian citizen that justify the granting of the visa.
As with the conclusion expressed above in relation to [49] of the Tribunal’s reasons, when the Tribunal reasons are read as a whole, it is readily apparent that the Tribunal took into account the applicant’s conduct in deciding whether or not there were compassionate circumstances.
My conclusion on the first question is therefore that the Tribunal reasons at [48]-[49] and [82] show that the Tribunal impermissibly took into account the applicant’s conduct in considering whether compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident existed. For the avoidance of doubt, the error does not lie in the Tribunal having had regard to the fact that the applicant provided a bogus document in its overall consideration of PIC 4020(4) and to the extent that the applicant’s written submissions suggest that this is an error, I do not accept those submissions. Rather, the error made by the Tribunal is that in applying PIC 4020(4), it took into account the applicant’s provision of a bogus document in deciding whether there existed compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident. The Tribunal should first have identified whether there were any compassionate or compelling circumstances. If satisfied that there were such circumstances, the Tribunal could then have taken into account the applicant’s conduct in considering whether the compassionate or compelling circumstances justified the grant of the visa.
Did the Tribunal properly apply the ordinary meaning of the word ‘compassionate’ in reaching its decision?
The Tribunal referred to the meaning of compassionate at [36] of its reasons where it said that the ‘ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others’. Both parties accepted this definition of ‘compassionate’ for the purposes of PIC 4020(4).
In his written submissions, the applicant submitted that the Tribunal made the following findings which reflect that the Tribunal was satisfied that compassionate circumstances existed as that term is ordinarily understood.
(a)There was reason for ‘sympathy’ for the applicant’s parents, the applicant had a ‘closeness to his parents’, the applicant was ‘of benefit to [his parents’] well-being’, and the applicant’s parents would feel ‘distress’ by the separation from him.
(b)The applicant had a close relationship with his older brother and his three children and that the applicant ‘played a role in assisting his brother and his wife raise their young family’.
(c)The applicant’s spouse has adjustment disorder with mixed anxiety and depressed mood, separating her from her husband was ‘undesirable’, the applicant’s spouse finds the thought of being separated from the applicant distressing and the applicant’s migration status has precipitated some mental health concerns, the applicant’s spouse is vulnerable because of her upbringing, the applicant’s spouse will suffer a decline in her mental health if she does not seek assistance from a medical practitioner and even with such support may continue to experience distress because the applicant is away overseas.
The applicant also submitted that the Tribunal applied elevated thresholds, such as referring to ‘significant hardship’ or ‘irreparable harm and continuing hardship’, which are not necessary to be satisfied that there are ‘compassionate circumstances’ in its ordinary meaning.
The only word used by the Tribunal in its findings referred to at [58(a)-(c)] above that reflects the ordinary meaning of compassionate is that there was ‘sympathy’ for the applicant’s parents. The other findings referred to are matters that the Tribunal could take into account in deciding whether or not compassionate circumstances exist but do not necessarily reflect a misunderstanding of the word compassionate. While it may seem inconsistent for the Tribunal to define ‘compassionate’ as relating to feelings of ‘sympathy’, express sympathy for the applicant’s parents and then find that there are not compassionate reasons affecting the interests of the applicant’s parents, it seems to me that the error made by the Tribunal is best described as the conflation error discussed in Kaur, Singh and Wu, rather than an indication that the Tribunal misunderstood the term ‘compassionate’.
To the extent that the Tribunal reasons reflect the view that:
(a)the applicant’s parents would need to face ‘significant hardship’ for their circumstances to be seen as compassionate (Tribunal reasons at [49]); or
(b)the applicant’s brother would need to face ‘irreparable harm and continuing hardship’ for there to be compassionate circumstances affecting his interests (Tribunal reasons at [51]),
this demonstrates a misunderstanding of the ordinary meaning of the word ‘compassionate’ and the imposition of a higher threshold than that required by the legislation.
The Minister referred the Court to Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 (Kumar) at [3] where the Federal Court referred to comments in Thongpraphi v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 (Thongpraphi) at [21] to the effect that there is ‘little doubt’ that the words ‘compelling and compassionate’ both ‘call for the occurrence of an event or events that are far-reaching and most heavily persuasive’. This case was referred to as support for the proposition that the terms ‘compassionate or compelling’ must be read in the context of justifying the grant of the visa and import a threshold level. As I have indicated above, whether any circumstances that are found to be compassionate or compelling justify the grant of the visa is to be determined at the second discretionary stage of the relevant inquiry, and not in relation to whether the circumstances themselves are ‘compassionate or compelling’.
It is unnecessary in the present matter to express any view about whether there is any particular threshold below which feelings of sympathy or pity do not amount to compassionate circumstances. It is sufficient in the present case to observe that any such threshold would not be that described in Kumar or Thongpraphi, as those cases addressed legislation using the conjunctive phrase ‘compelling and compassionate’, whereas PIC 4020(4) uses the disjunctive phrase ‘compassionate or compelling’. ‘Compassionate’ circumstances would appear to be a lower threshold than ‘compassionate and compelling’ circumstances. In my view, it is not necessary for there to be ‘significant hardship’ or ‘irreparable harm and continuing hardship’ for there to be ‘compassionate circumstances’. However, the extent of any harm or hardship may be relevant to the consideration of whether any compassionate circumstances found by the Tribunal justify the grant of the visa.
Did the Tribunal err by engaging in a comparative analysis, rather than an absolute analysis, of whether compassionate circumstances existed?
The applicant identified a number of paragraphs in the Tribunal’s reasons, which he said demonstrate that the Tribunal adopted a comparative analysis. The applicant identified comments by the Tribunal referring to the situation of many other people and whether any hardship that the applicant’s family members might face would be over and above the hardship faced by others in similar circumstances. The applicant submitted that it did not matter whether other people might experience the same situation. The statutory task of the Tribunal was to consider, in an absolute sense, whether the circumstances that existed in the applicant’s case were ones which enlivened compassion.
In his oral submissions in support of this aspect of the ground, Counsel for the applicant referred to the case of Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300; [1994] FCA 791 at [12] for the proposition that the phrase ‘strong compassionate or humanitarian grounds’ does not require an applicant to suffer uniquely. Counsel for the applicant also referred to Damouni v Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 40 FCR 76; [1989] FCA 246 (Damouni), which also considered the phrase ‘strong compassionate or humanitarian grounds’, where the Federal Court said at [14]:
… And the fact that many other persons may be in a like predicament to that which faces or threatens the applicant, is not, in my opinion, sufficient to take the case out of the class of those eligible for consideration under the paragraph. The word “strong” does not impose a requirement that the grounds must be special or peculiar to the applicant, although there may be circumstances where that is a relevant consideration.
The Minister acknowledged that when considering whether there existed compassionate or compelling circumstances the Tribunal occasionally compared the situation of people in the applicant’s circle to what it considered was commonplace and ordinary. The Minister submitted that this type of comparative analysis is an orthodox way of considering whether the claimed circumstances were compassionate by determining whether they were beyond the ordinary and there is no reason the Tribunal cannot adopt a comparative approach if it is rational and reasonable for it to do so. The Minister submitted that the Tribunal is entitled to compare the claimed circumstances against ordinary circumstances as this is part of making a normative judgment, and referred to Damouni at [14] where French J described the phrase ‘strong compassionate or humanitarian grounds’ as inviting a normative judgment. In oral submissions, Counsel for the Minister submitted that a normative judgment can only be made with an understanding or comparison against norms and understanding of what is usual or common, or commonplace, and so in making a normative judgment, one is necessarily making a comparative assessment or evaluation. The Minister submitted that the Tribunal did not engage in any comparative approach in relation to other PIC 4020 cases.
With these submissions in mind, I turn now to those parts of the Tribunal’s reasons that are said to reflect this alleged error. The applicant submitted that the alleged error is evident from the following parts of the Tribunal’s reasons:
(a)At [47]-[49] the Tribunal commented that ‘many Australian citizen/permanent resident parents are separated from their children’ and that the separation of the applicant and his parents will not cause ‘significant hardship over and above that caused to others caught in the same immigration circumstances’;
(b)At [51] the Tribunal made comments to the effect that any hardship that the applicant’s brother would face as a consequence of the applicant’s temporary departure from Australia would not be ‘other than what other close siblings might feel’;
(c)At [57] the Tribunal said, in the context of considering whether there were compassionate circumstances affecting the interests of the applicant’s nieces and nephews, ‘many children are separated from their aunts or uncles because of their geographical location’;
(d)At [85], in the context of considering the sponsor’s circumstances, the Tribunal commented that ‘[i]t is not uncommon that couples, for various reasons, have to be separated for periods at a time’; and
(e)At [92] the Tribunal considered a statement by the sponsor’s friend and found that her support of the sponsor ‘is not outside the ordinary feelings of concern friends have for one another in such similar circumstances’.
For the most part, I am satisfied that these comments are simply part of the Tribunal’s normative evaluation and do not amount to jurisdictional error, and I accept the Minister’s submissions in this regard. The Tribunal was entitled to have regard to what was ordinary or commonplace in determining whether the particular circumstances of the applicant’s family members were ‘compassionate’ circumstances. It is not a case of the Tribunal considering that the compassionate circumstances must be unique to the applicant or his family. I also accept the Minister’s submission that the Tribunal has not compared the circumstances in the present case with other PIC 4020(4) cases. This submission appears to be based on the applicant’s reliance on Teo v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 242; [1994] FCA 778 in which the Federal Court said at [19], ‘[t]hat other cases, such as Fuduche [v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515; [1993] FCA 503] might excite more compassion, is irrelevant’. The Tribunal has not fallen into that error here.
The one exception to the conclusion expressed in the above paragraph relates to the Tribunal’s comment at [49] that the separation of the applicant and his parents would not cause ‘significant hardship over and above that caused to others caught in the same immigration circumstances’. Compassionate circumstances do not require there to be significant hardship ‘over and above’ that experienced by others in a similar situation and, to the extent that the Tribunal relied on this reasoning in assessing whether compassionate circumstances existed, it has erred.
Did the Tribunal fail to engage in a holistic assessment of whether there were compassionate circumstances?
In oral submissions, Counsel for the applicant referred to the following passage in Sacharowitz at [22]:
… Hill J, as I respectfully think, expressed the matter well when he said in Surinakova [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87]:
“It is obvious that in considering whether there are strong compassionate or humanitarian grounds regard must be had to the whole matrix of facts which would be relevant to the existence of such grounds. No one matter will necessarily be determinative and it may be necessary to consider together a whole series of matters which cumulatively reveal the existence of the necessary strong compassionate or humanitarian grounds.”
His Honour referred to his own earlier decision in Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (12 December 1989, unreported), from which he cited a passage:
“The courts have not sought to create an all-embracing test of what constitutes strong compassionate or humanitarian grounds; nor would such an exercise be either possible or desirable. The words are very broad. Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them. Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion...”
Counsel for the applicant also referred to the following passage in Wu at [33], which he described as revealing the same method of analysis as in Sacharowitz, although Judge Lucev did not in Wu refer to Sacharowitz:
Satisfaction of visa criteria cannot however be ignored simply because they are a “hallmark” of a visa if they are relevant to an assessment of waiver under PIC 4020(4) of Sch 4 to the Migration Regulations. Dealing with a Partner Visa in Singh v Minister for Immigration & Border Protection [2017] FCCA 2461; (2017) 325 FLR 275 (Singh) at [54] per Judge Manousaridis this Court observed that:
54.The next question is whether the Tribunal misconstrued PIC4020(4)(b). In my opinion it did.
(a)First, PIC4020(4)(b) is a condition that is capable of applying to different classes of visa applications. There is nothing in the text of PIC4020(4)(b) that can be taken to exclude from a particular class or particular classes of visas — in this case Partner visas — what would otherwise be compelling or compassionate circumstances because such circumstances may be thought to be the hallmark or usual incidents of the factual premises on which such visas may be granted.
(b)Second, there is no reason why the hallmarks or usual incidents of a particular genuine partner relationship could never give rise to compelling or compassionate circumstances. The nature and the extent of the bonds that may exist between partners to a genuine relationship, and the consequences of partners separating, even if only for the time it would take for an applicant to apply offshore for a Partner visa, are likely to differ from one relationship to another. That means that, whether or not the separation can give rise to compassionate or compelling circumstances must be considered having regard to the particular circumstances of the case. There is nothing in PIC4020(4)(b) that could suggest that the decision-maker is to ignore the nature and extent of the bond between particular parties to a particular genuine partner relationship only because it is to be expected that emotional bonds are present in all genuine partner relationships.
(c)Third, the Tribunal’s construction would give rise to anomalous results. If correct, it would mean compassionate or compelling circumstances that may arise out of the emotional bonds that are present in a genuine partner relationship may not be taken into account where the class of visa in question is a Partner visa, yet it may be taken into account in other classes of visa.
Counsel for the applicant submitted that Wu was a greater specification of the broader point from Sacharowitz, and was directly applicable in the present case as the Tribunal in the present case made the same error.
As indicated, this alleged error was raised for the first time in the applicant’s oral submissions. There is nothing in the manner in which the ground is pleaded, noting that the ground is not particularised in any way, or the way in which the applicant’s written submissions were advanced that would put the Minister on notice ahead of the hearing that this is an error alleged by the applicant. Sacharowitz was cited in the applicant’s written submissions, but only for the proposition that compassion is an emotion akin to pity, felt when the circumstances of others excite our sympathy. Wu was not referred to in the applicant’s written submissions at all.
In circumstances where I have found jurisdictional error on a different basis above, it is unnecessary for me to address these submissions relating to a further error, raised for the first time in oral submissions.
Conclusion on ground 1
I have found that in the present matter there were jurisdictional errors in the Tribunal’s approach to PIC 4020(4), including that the Tribunal:
(a)conflated the two stages of the PIC 4020(4) inquiry as discussed in Kaur, Singh and Wu;
(b)misapplied the ordinary meaning of compassionate by imposing a requirement of ‘significant hardship’ or ‘irreparable harm and continuing hardship’; and
(c)in one instance, took into account whether the applicant’s parents would face hardship ‘over and above’ others in a similar immigration situation, when such a comparative approach was unnecessary to the determination of whether there were compassionate circumstances.
There is no suggestion that the errors are not material and I am satisfied that they are jurisdictional in nature.
Ground 2
By ground 2, the applicant asserts legal unreasonableness in the Tribunal decision. In advancing this ground, the applicant relies on the principles summarised in Minister for Immigration and Border Protection v Mohammed (2019) 269 FCR 70; [2019] FCAFC 49 at [22]-[26]. In these paragraphs, the Full Court summarised the relevant principles as set out in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton) and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.
In his written submissions, the applicant submitted that the Tribunal decision was legally unreasonable, essentially because the findings that the applicant summarised at [16]-[17] of his written submissions led safely to the conclusion that there were ‘compassionate circumstances’ justifying waiver. The applicant said at [16]-[17] of his written submissions (footnotes omitted):
16.The Tribunal positively accepted that there was reason for ‘sympathy’ for Mr Gjecaj’s parents, that he had a ‘closeness to his parents’, that it appreciated that Mr Gjecaj ‘is of benefit to [his parents’] well-being’ and that his parents would feel ‘distress’ by their separation from him. The Tribunal also held that Mr Gjecaj has a close relationship with his older brother and his three children then aged 7, 5 and 6 months old, and that Mr Gjecaj ‘played a role in assisting his brother and his wife raise their young family’.
17.In respect of Mr Gjecaj’s spouse, the Tribunal also accepted that she has ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood’ and that separating her from her husband was ‘undesirable’. The Tribunal also found as follows:
The Tribunal does not doubt that Ms Bojanic finds the thought of being separated from the applicant distressing and that the applicant’s migration status has precipitated some mental health concerns. The Tribunal also accepts that she is vulnerable because of her upbringing.
The Tribunal has had regard to the sponsor’s circumstances and accepts that she will suffer a decline in her mental health if she does not seek assistance from a medical practitioner or other mental health expert, and even with such support, may continue to experience distress because the applicant is away overseas.
It appears from this that the nature of the legal unreasonableness asserted by the applicant is that described as ‘outcome focused’ without the need to identify an underlying jurisdictional error, rather than a conclusion of jurisdictional error for a recognised species of error: see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44], Stretton at [6].
To the extent that the assertion of unreasonableness is outcome focused, I do not accept that the findings of the Tribunal summarised at [16] and [17] of the applicant’s written submissions necessarily led to the conclusion that there were compassionate circumstances justifying the grant of the visa.
Even if it were to be accepted, for the sake of argument, that some of the findings referred to at [16] and [17] of the applicant’s submissions might give rise to a finding that the circumstances of one or more of the applicant’s family members were ‘compassionate’, these findings say nothing of whether any compassionate circumstances justify the granting of the visa. The Tribunal was entitled to have regard to the applicant’s conduct in determining whether any compassionate circumstances justified the granting of the visa.
As a result of my findings of jurisdictional error and in relation to ground 1, I cannot find that the Tribunal has given an evident and intelligible justification for its findings. To this extent, it could be said that the underlying species of jurisdictional error that I have identified in ground 1 gives rise to legal unreasonableness, but that is not how I understand the applicant to advance this ground.
There were two additional matters that Counsel for the applicant referred to in oral submissions that were said to give rise to unreasonableness. These were:
(a)The Tribunal at [47] took into account an irrelevant factor, namely that the applicant’s parents were not arguing that they were missing their other children or that there are compassionate or compelling circumstances as to why their daughters should be allowed to come to Australia. It was said that this is revealing of legal unreasonableness in the sense that it was the prism through which the applicant’s parents’ evidence was assessed.
(b)The Tribunal at [62], in addressing the report by the sponsor’s psychologist, took into account that the report was prepared for the purpose of presenting it to the Tribunal. The applicant’s Counsel submitted that the circumstances in which the report was prepared were irrelevant to the contents of the report and that this irrelevance goes to legal unreasonableness.
As with the issue raised for the first time in oral submissions in ground 1, there is nothing in the application or the applicant’s written submissions that would give any notice to the Minister or the Court that the applicant was asserting legal unreasonableness on these bases. In circumstances where I have already found jurisdictional error on another basis, it is unnecessary for me to address a new assertion of unreasonableness, raised for the first time in oral submissions without notice to the Minister or the Court.
CONCLUSION
I have found that there is jurisdictional error in the Tribunal decision. It is appropriate to issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to require the Tribunal to reconsider the application according to law.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 November 2022
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