Gjonej v Minister for Immigration
[2014] FCCA 2113
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GJONEJ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2113 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal – invitation issued pursuant to section 360 – opportunity to be heard to present evidence and arguments – was opportunity meaningful – claim MRT failed to consider a discrete integer of the applicant’s claim – whether such inference can be drawn. |
| Legislation: Migration Act 1958 (Cth), ss.5CB; 65; 359AA; 360(1); 425; 474; 476 Migration Regulations 1994: rr.1.09A; 2.03A |
| Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24 Craig v South Australia [1995] 184 CLR 163 Kioa v West (1985) 159 CLR 550 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553 SZQBN v Minister for Immigration & Border Protection [2014] FCA 686 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALD 224 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 630 |
| Applicant: | ERVIS GJONEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 355 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 22 August 2014 |
| Date of Last Submission: | 22 August 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of six thousand six hundred and forty-six dollars ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 355 of 2013
| ERVIS GJONEJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ervis Gjonej “the applicant” is an Albanian national. He seeks to review a decision of the Migration Review Tribunal “the MRT”, which affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection “the respondent” not to grant him a Partner (Temporary) Class UK Visa “the visa”.
The grounds for the review can be summarised as follows. Firstly, the MRT did not afford the applicant a meaningful opportunity to present and argue his case before it because it did not make sufficient allowances in recognition of the mental illness from which he suffers.
Secondly, the MRT did not consider a specific integer of his case, which was clearly articulated by him before it. In both instances, it is asserted that these constitute a jurisdictional error which this court is empowered to correct.
Background
The applicant was born in Albania on 29 July 1985. He entered Australia, on 14 June 2009, by means of an Italian passport, which he acknowledges was fraudulent. He has been in Australia since his entry.
On 11 February 2010, he applied for a protection visa on the basis that he feared persecution in Albania. Ultimately, this application was rejected, following review in the Refugee Review Tribunal and the refusal of the Minister to intervene.
At some time in early 2010, the applicant met Ms Bruna Minicozzi in Adelaide. She is an Australian citizen, who was born on 6 February 1955. The applicant and Ms Minicozzi formed a relationship and currently live together in Ms Minicozzi’s home in suburban Adelaide.
There was some controversy, in the proceedings before the MRT, as to the precise date on which the applicant and Ms Minicozzi began to co-habit. The applicant asserted he moved into Ms Minicozzi’s home in mid-2010. On the other hand, the respondent had information adverse to the applicant, which led it to believe that the applicant had lived elsewhere up until November of 2010.
The date on which the parties began to live together is relevant vis-à-vis the applicable criteria, required to be satisfied for the grant of the visa. To be eligible for the visa, the applicant concerned must be found to be in a de facto relationship for a period of twelve months prior to the date of application for the visa or alternately establish that compelling and compassionate circumstances exist sufficient to justify the waiver of this time requirement.
On 21 June 2011, with the assistance of his solicitor, the applicant applied to the Department of Immigration & Citizenship[1] for the visa in question, pursuant to the provisions of the Migration Act (1958) “the Act”. Ms Minicozzi was named as his sponsor.
[1] As the Department was then known.
In material supplied in support of the application, the applicant disclosed that he suffers from a mental illness, characterised by severe depression and psychosis. The applicant’s mental illness has relevance regarding the issue of whether he was able to take part properly in the hearing before the MRT and therefore whether the Tribunal accorded him the prerequisite standard of procedural fairness and so discharged its jurisdictional obligations towards the applicant prior to reaching the decision which it did.
At this stage a medical report from the applicant’s treating psychiatrist, Dr Leslie Stephan, was provided.[2] Dr Stephan reported that, in mid-January 2010, the applicant had been detained pursuant to the South Australian Mental Health legislation following the onset of depression and suicide attempts. He was prescribed anti-psychotic and mood stabilising medication. At times he required physical and chemical restraint.
[2] See casebook at 42
On 16 February 2010, the applicant was discharged into community care. He was prescribed further anti-depressant medication. He continued to receive psychiatric review throughout 2010. Dr Stephan, in December 2010 proposed a diagnosis of a major depressive order, single episode, severe with psychotic features, for the applicant, which Dr Stephan believed to have resolved at this time.
On 2 November 2011, the applicant’s solicitor provided a further medical report from Dr Stephan dated 24 October 2011. Dr Stephan reported that the applicant had not always been reliable in attending scheduled medical appointments, but had attended upon him, on several occasions, unannounced to request that he (the applicant) be provided with medication urgently. These presentations occurred within the context of the applicant reporting that he was hearing voices again.
As a consequence of this history, Dr Stephan believed that the appropriate primary diagnosis for the applicant was now one of schizophrenia; with a secondary diagnosis of adjustment disorder with mixed anxiety and depressed mood.[3]
[3] See casebook at 78
The legal requirements applicable to the Visa
Pursuant to section 65 of the Act, the Minister is authorised to grant visa applications if satisfied that any applicable criteria prescribed by either the Act or related regulation have been satisfied.
In the case of a partner visa, the applicable criteria are set out in clause 820.211 in Schedule 2 of the Migration Regulations 1994. Saliently, an applicant for such a visa must be the spouse or de facto partner of a person, who is an Australian citizen or Australian permanent resident.
In addition, pursuant to regulation 2.03A(3), the applicant concerned must satisfy the Minister that he or she has been in the de facto relationship concerned for a period of twelve months prior to the date of the application for the visa or failing this that compelling and compassionate circumstances apply for the grant of the visa.
The applicant and Ms Minicozzi are not married. Ms Minicozzi is an Australian citizen. The expression de facto partner is defined by section 5CB of the Act. It provides that two persons are in a de facto relationship if:
·They have a mutual commitment to a shared life to the exclusion of all others;
·The relationship between them is genuine and continuing;
·They live together;
·They are not related by family.
A further regulation – regulation 1.09A – prescribes matters to be considered, by the Minister, when assessing whether a de facto relationship exists for the purposes of the regulation. These matters are as follows:
·The financial aspects of the relationship;
·The nature of the household;
·The social aspects of the relationship;
·The nature of the commitment the relevant parties to the relationship have to one another.
The decision of the delegate
The applicant’s visa application was refused by the Minister’s delegate on 3 July 2012. The delegate did not accept that the applicant and Ms Minicozzi were in a de facto relationship, on the basis of evidence presented regarding their financial affairs; the nature of their household; their social interaction; and the level of their mutual commitment towards one another.
As a consequence of this decision, the applicant applied for review to the MRT on 20 July 2012. The MRT made its decision on 31 October 2013. It is this decision, which affirmed the delegate’s decision, which is the subject of these proceedings.
Background to the MRT decision
Pursuant to section 360(1) of the Act, the Tribunal is obliged to invite the applicant, in relation to the decision under review, to appear before it to give evidence and present any arguments, which arise from the decision in question. The applicant in the present case received an invitation, pursuant to section 360(1), on 12 June 2013.
The date on which he and Ms Minicozzi were originally scheduled to give their evidence was 11 July 2013. On 9 July 2013, the applicant’s solicitor wrote to the MRT advising that the applicant “is not well at present”. On this basis, the Tribunal agreed to adjourn the proceedings, which were rescheduled for 7 August 2013.
This hearing did not proceed either. On 7 August 2013, the applicant’s solicitor forwarded a letter from a psychiatrist, employed by the South Australian Department of Health, which indicated that the applicant was then an involuntary patient, being treated for a “manic relapse of [a] bipolar affective disorder”.[4]
[4] See casebook at 117
It was anticipated that he would remain an inpatient for the next two weeks. On this basis, the MRT rescheduled the hearing arising under the provisions of section 360 of the Act to 24 September 2013. On 20 September 2013, the applicant’s solicitor wrote to the Tribunal indicating as follows:
“Mr Gjonej has been discharged from hospital and it is expected that he will be well enough to attend the hearing which has been scheduled for 24 September 2013.
Mr Gjonej is taking medication and he does tire easily and is not currently very robust from a mental health point of view, so I would ask the Tribunal to be mindful of that.”[5]
[5] See casebook at 120
The MRT decision
The applicant attended the hearing scheduled for 24 September 2013 with his solicitor. At his request, he was provided with the services of an Italian interpreter. The applicant gave evidence before the Tribunal, as did Ms Minicozzi and another witness, Ms Sciacca. I have been provided with a transcript of the applicant’s evidence before the Tribunal.[6] I will summarise this evidence with some care later on in these reasons.
[6] See affidavit of Jane Louise McGrath filed 11 December 2013
Following the completion of the hearing, the applicant’s solicitor wrote further to the MRT raising, amongst other issues, the applicant’s presentation before the Tribunal. The solicitor made the following submission in respect of this issue:
“We ask the Tribunal to take into account the further evidence of Mr Gjonej’s mental health problems which include his recent six week admission to Glenside Hospital. We also ask the Tribunal to take into account Mr Gjonej’s demeanour at hearing. He is clearly still unwell from a mental health point of view. He is easily tired and grandiose in his statements to the Tribunal. His concentration and ability to remember dates is also compromised, probably as a result of his mental illness or the medication he is currently taking.”[7]
[7] See casebook at 125
The MRT released its decision record, in respect of the application in question, on 31 October 2013. As previously indicated, the Tribunal affirmed the decision not to grant the applicant a Temporary Partner Visa.
Given the history of the matter, there can be no doubt that the MRT was well aware that the applicant had a recent history of serious mental illness and had only recently been released from hospital. The applicant’s capacity to acquit himself adequately before the Tribunal is one of the central issues of this case. In this regard, the MRT found as follows:
“The Tribunal has taken into account his recent hospitalisation and his mental illness in considering his evidence. It found Mr Gjonej was able to give evidence and participate in the hearing.”[8]
[8] See case book at page 130 [6]
In reaching its decision, the MRT made findings regarding what it regarded as salient aspect of the applicant’s migration history. These included his arrival in Australia, on a false Italian passport; an initial application for a spouse visa, which was later withdrawn, relating to a relationship the applicant had formed with a person, whom he had met at Rome airport; his application for a protection visa, which had been rejected; and then the current application, arising from the applicant’s purported relationship with Ms Minicozzi.
The Tribunal concluded that the applicant’s migration and relationship history did not support a conclusion that he had a long-term commitment to a relationship with Ms Minicozzi. Rather, during interview, it was suggested to the applicant that his current application was a mechanism by means of which he hoped he would be able to secure his stay in Australia.
In interview with him, the Tribunal also put information, in its possession, to the applicant, which it considered to be adverse to his claim. This adverse information threw doubt on the applicant’s assertion that he had moved into Ms Minicozzi’s home in June of 2010, as each has had stated in statutory declarations provided to the MRT, which purportedly appeared to satisfy the requirement of them being in a de facto relationship, for the period of twelve months immediately prior to the visa application.
This adverse information included that the Department had recorded him as living at a different address to that of Ms Minicozzi between 18 February 2010 to 23 November 2010; and during a period in which he was required to telephone in to the Department on a fortnightly basis, he had reported to it that he was involved in a relationship with an Australian citizen, whom he had identified as “Francesca” and further indicated that he would be moving in with her shortly. This occurred on 12 October 2010.
In the context of issues pertaining to the parties’ financial situation, the Tribunal noted that Ms Minicozzi’s finances remained intermingled with those of her former husband, from whom she is not as yet divorced. On the basis of the adverse information, the Tribunal rejected the contention that the applicant and Ms Minicozzi had been cohabiting since 20 June 2010. It assessed the applicant’s evidence regarding the nature of his shared life with Ms Minicozzi as appearing “rehearsed”.
Given its concerns about the applicant’s migration history and its finding that the evidence of Mr Gjonej and Ms Minicozzi, regarding the date on which it was said their de facto relationship had begun, lacked credibility, the MRT expressed “serious concerns” about whether the applicant had a mutual commitment to a shared life with Ms Minicozzi.
Nonetheless, it accepted that, for the purposes of the review in question, the applicant had been in a de facto relationship, with Ms Minicozzi, from 23 November 2011 onwards. The material factor, in this regard, was that the applicant and Ms Minicozzi had shared a household from this date onwards.
Given this finding, the provisions of the additional criterion, contained in regulation 2.03A, was engaged and it was necessary for the Tribunal to consider whether compelling and compassionate circumstances existed sufficient to justify the requirement that the de facto relationship in question had not been on foot for twelve months or more, at the date of application.
In this regard, the applicant’s solicitor made submission to the MRT in the following terms:
·Given his serious medical condition, the applicant and Ms Minicozzi feared for the applicant’s safety, if he was removed from Australia and his current treatment and sources of emotional support. In such circumstances, he was likely to suffer a recurrence of his illness;
·Ms Minicozzi’s son suffered from a severe mental illness requiring his mother’s day to day care. As a consequence, Ms Minicozzi would be precluded from accompanying the applicant to Albania, if he was removed from Australia;
·The applicant and Ms Minicozzi have a strong and loving relationship, which was genuine in nature.
In particular, on 4 October 2013, the applicant’s solicitor wrote to the Tribunal that:
“…Mr Gjonej suffers from a severe mental health condition and that Ms Minicozzi has provided him with a level of love and support and emotional assistance which is essential to his stability and ongoing wellbeing.”[9]
[9] See case book at 127
In this context, the MRT acknowledged that deportation could possibly have deleterious consequences for the applicant, particularly as Dr Stephan reported that he was agitated at the prospect of being removed from Australia.
However the Tribunal also noted that the applicant had not always been proactive in seeking out medical treatment for himself. It also noted that there was no evidence to indicate that the treatment required by the applicant was not likely to be available to him in Albania.
The Tribunal further noted that Ms Minicozzi’s son did not live with her and she herself had not provided any additional information regarding her responsibility to provide for his day to day care.
As a consequence of these findings, the MRT did not find that there were any compelling and compassionate circumstances, pertaining to the applicant, to justify the grant of the visa in question. On this basis, the Tribunal affirmed the decision not to grant the applicant the relevant visa.
The applicant is critical that the MRT failed to apply its mind specifically to the evidence provided to it regarding the nature of his relationship with Ms Minicozzi and accordingly made no finding about it, in the context of whether compelling and compassionate circumstances existed in his case.
The current application
The applicant commenced these proceedings on 28 November 2013. The applicant seeks that the decision of the MRT be quashed and the matter remitted for rehearing. Although the application provides four grounds to support the application, the application relies only on two of these, which can be summarised as follows:
Ground One:
The MRT did not provide the applicant with the proper level of hearing, as required under section 360(1) of the Act. In particular, the applicant was not provided with a real and meaningful opportunity to present his case before the Tribunal by reason of his pre-existing mental health condition, which precluded him from the required level of involvement in his case.
In support of this submission, it is asserted that the applicant’s infirmity was a fact, which must have been well known to the Tribunal. It is also asserted that the only proper conclusion, to be drawn from a fair reading of the transcript of the applicant’s evidence before the Tribunal, is that the taking of evidence from him was analogous to a surrealist play.
In order to understand the context of this ground of appeal, it is necessary to examine the applicant’s evidence, before the Tribunal, in some detail. In his submission to the court, counsel for the applicant Mr Ower drew attention to specific passages of the transcript but conceded that it was necessary for the court to read the evidence as a whole.
Ground Two:
The Tribunal failed to consider a specific and clearly raised component of the applicant’s claim that compelling and compassionate circumstances existed to justify the grant of the visa in question, pursuant to the additional criteria provision of regulation 2.03A because it did not consider his submission that Ms Minicozzi provided him with a level of love, support and emotional assistance, which was essential to his stability and ongoing well-being, given his severely compromised level of mental health. This being the submission made in the letter of the applicant’s solicitor provided on 4 October 2013.
The applicable legal framework
The decision not to grant the applicant the visa is a privative clause decision as defined by section 474 of the Act. This stipulates that any administrative decision, relating to the granting or otherwise of a visa pursuant to section 65 of the Act is a final and conclusive one. As such, it is not to be called into challenge or reviewed in any court.
However, the High Court of Australia in Plaintiff 157/2002 v Commonwealth of Australia[10] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT, which are affected by jurisdictional error or have been made in bad faith.
[10] See Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24
Accordingly, in migration cases where it is established that an error of jurisdiction has occurred, pursuant to section 476 of the Act, this court has the same jurisdiction as the High Court under paragraph 75 (v) of the Constitution and may issue a prerogative writ quashing a decision, if an error of jurisdiction is demonstrated.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a conclusion, in a way, that affects the exercise or purported exercise of the power conferred upon it.[11]
[11] See Craig v South Australia [1995] 184 CLR 163
It is also clear that a failure to afford natural justice may also amount to a jurisdiction error under the Act. The requirements of natural justice, pertaining to the case in question, are to be determined within the relevant statutory context, which in this case is section 360(1).[12]
[12] See Kioa v West (1985) 159 CLR 550
An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[13]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[13] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
This hearing is directed towards the legality of the MRT’s decision, not its merits. It is the role of the Tribunal to make any necessary findings of fact, on which its decision is predicated, from the evidence which was properly available to it. It is not the function of this court to substitute its own findings of fact in respect of that evidence.
In this case, the applicant asserts that the MRT has misconstrued its essential jurisdictional obligations arising under section 360(1) of the Act; and thereafter has failed to consider an essential aspect of the applicant’s case and make the decision required in respect of it. In both instances, it is submitted by the applicant, that this has led to a failure, on the part of the MRT, to exercise the jurisdiction conferred upon it, which is correctable pursuant to section 476 of the Act.
The applicant’s submissions
Ground One
The starting point for the applicant’s submissions is section 360(1) of the Act, which provides as follows:
“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
The Minister concedes that, in all material aspects, the section is analogous to section 425 of the Act, which deals with the Refugee Review Tribunal and prescribes the same essential jurisdictional pre-condition, namely that each such Tribunal – the RRT and the MRT – must invite an applicant for review, to appear before it, before a valid decision on review may be made.
The applicant contends that section 360(1) imposes a substantive obligation on the MRT to conduct a hearing, which in material terms provides a meaningful opportunity for the applicant concerned to give evidence and present arguments to the Tribunal.
In this context, the applicant relies on the following comments of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[14]:
“Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture. …”
[14] See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553 at 560
The obligation arising under section 425 did not require the Tribunal to assist actively any applicant in putting his or her case and nor did it require the Tribunal to conduct an inquiry to identify what that case might be. However, the Full Court was clear that the section imposed an objective requirement on the Tribunal to provide a real and meaningful invitation to an applicant, whether it was aware or not of the actual circumstances which might defeat such obligation.[15]
[15] Ibid at 561
Accordingly, circumstances might arise, which prevented an applicant enjoying such a meaningful invitation, in objective terms, even if the Tribunal itself was unaware of the actual fact or event, which had resulted in the unfairness. The Full Court was also clear that any failure of a Tribunal to comply with the provisions of section 425 involved a jurisdictional error.
In SZQBN v Minister for Immigration & Border Protection[16] Flick J held as follows:
“An assessment as to whether a particular claimant has the mental capacity to meaningfully participate in a Tribunal hearing is necessarily an assessment which must be made by reference to the facts and circumstances of each individual case.”
[16] See SZQBN v Minister for Immigration & Border Protection [2014] FCA 686 at [46]
In this context, the applicant submits the issue of whether he was given a meaningful opportunity to take part in the hearing before the MRT must be assessed by both subjective and objective circumstances. In SZQBN Flick J accepted that an applicant’s mental condition might be such to deprive him of a meaningful opportunity to be heard but care needed to be taken before such a conclusion was reached.
It is the applicant’s submission that a consideration of both subjective factors pertaining to him personally and an overall assessment of the objective circumstances of the hearing itself demonstrate that he was not accorded a meaningful opportunity to present his case before the Tribunal, leading to the commission of a jurisdictional error on its part.
Firstly, the applicant submits that it is clear, as a consequence of the lengthy medical reports submitted to the MRT, on his behalf, that he suffered from a serious level of mental illness, which had resulted in him being hospitalised for a lengthy period of time, shortly prior to the hearing. In addition, on two previous occasions, the Tribunal itself, in deference to his mental capacity, had deferred the required section 360(1) hearing.
In all these circumstances, it is the applicant’s submission that, in objective terms, it should have been apparent to the Tribunal that the applicant suffered from a significant level of mental incapacity, which given the centrality of assessments of the applicant’s credibility in the determination of the issues before the Tribunal, required it to ensure that the applicant was able to participate, in a meaningful way, before it.
Secondly, the applicant submits that a reading of his evidence presented before the Tribunal discloses that, in subjective terms, he was not able to participate to the degree required by section 360(1). In this context, it is submitted that he provided non-sequiturs in response to questions put to him or otherwise provided nonsensical answers.
The applicant’s evidence before the RRT occupies some thirty-seven pages of transcript. It is apparent, from a perusal of the transcript, that the applicant had the assistance of an Italian interpreter, during his evidence and spoke frequently, to the interpreter, in Italian.
At the outset of the applicant’s evidence, he indicated to the Tribunal that he was under medication at the time and may have difficulty in concentrating.[17] A short time later he was asked by the Tribunal how the medication affected him, to which he replied “Badly. It makes me quiet…yes it makes me relax my mind, um because I suffer depression. I’m very better, now, really.”[18]
[17] See transcript at page 4
[18] Ibid at page 7
In response to a statement from the Tribunal member, regarding his recent hospitalisation, the applicant said that he had been in hospital three times for “cancer”.[19] Later he said his diagnosis had been “schizophrenic or bipolar, I don’t know which one.”[20]
[19] Ibid at page 7
[20] Ibid at page 8
Accordingly, it is clearly the case that the Tribunal member concerned was aware that the applicant had recently suffered a significant psychiatric illness. In this context, she asked him as follows:
“Tribunal Member: Okay, and what effect does that have on you or your ability to give evidence today?
Ervis Gjonej: I speak.
Ervis Gjonej: I’m alright to answer however is the questions. I like to be here to answer the questions because it’s my day I have to. It’s my relationship.”[21]
[21] Ibid at page 8
Following this exchange, after a discussion between the interpreter and Mr Gjonej in Italian, the interpreter indicated that the applicant was “determined to provide you with all the answers that you require to your questions, because he’s, sworn on the Bible and that he can prove that his relationship with Ms Minicozzi goes back four years ago.”
Clearly, the nature of the applicant’s relationship, with Ms Minicozzi, particularly when it had begun, was one of the central issues relevant to the section 360 invitation and in respect of which the applicant was required to comment. The answer although perhaps liable to classification as florid in nature is apposite in the circumstances.
As was required, by virtue of section 359AA of the Act, the Tribunal was required to put any information, adverse to the applicant, which might lead it to affirm the decision under review. In this context, it was suggested to him that he had lived, at an address other than that of Ms Minicozzi, between 18 February 2010 and 3 November 2010.
To which he replied “yes that’s true”. Again, although an answer adverse to his interests, it is an appropriate one. However, a short time later the applicant said “Now will you remember me, because …” Mr Ower, the applicant’s counsel, characterises this statement as being tantamount to gibberish.
The other piece of evidence, adverse to the applicant’s case, concerned his relationship with the person known as Francesca. The applicant did not acquit himself well in regards to this issue, at one stage indicating that he did not wish to answer the question because it concerned a long time ago.
In response to a question that his involvement with Francesca was not consistent with him being in a de facto relationship with Ms Minicozzi, in mid-June 2010, the applicant said as follows:
“Excuse me um what the hell have I got to do because I’m a good looking boy, maybe I can go outside tonight and meet another one. You see my problem now.
… Francesca, that’s a long time ago. Francesca is gone now, I don’t know anything. You make me upset now because you talk to me about her, I start shaking. I need 10 minutes break please.”[22]
[22] Ibid at page 14
At the conclusion of the line of inquiry regarding his relationship with Francesca, the applicant said as follows:
“If you ask me about me and Bruno [sic] I can answer you hundred question, million question, two million, how many you want? But you’re asking me about things that I’m not any more together. Things that doesn’t exist any more. Things that I don’t. You make me have second thoughts because that’s how I am. (indecipherable) personality. That is the problem with my siblings.”[23]
[23] Ibid at page 15
As has previously been indicated, the applicant’s initial claim for a spousal visa in Australia was based on a relationship, which he claimed to have formed, with an Australian citizen, whom he had met at Rome airport. In the course of the hearing, the applicant was asked about the nature of this relationship. To which he replied as follows:
“Leena Browell another woman. What can I do I’m a lovely boy? I know that I’m a lovely boy.”[24]
[24] Ibid at page 16
At the conclusion of this line of questioning, the applicant made the following statement.
“No I’m in love with my women, my wife. We love together. We’re a relationship, does not mean nothing about age. Look, who chose the name, the singer there, how many is there to have the people different about age. It means nothing to me. That’s what I’m looking for myself, I’m looking to I have a future with her, we loves together, that’s it. A different woman what I have to do (indecipherable) I’m a lovely boy, what I have to do? You ask my brother, what I have to do. Because I have been going out too much and meeting people. (indecipherable).”[25]
[25] Ibid at page 18
The tribunal member responded to this by saying: “Pardon?” The applicant’s references to himself as a pretty or lovely boy are, to say the least, somewhat incongruous in the context of the formal interview situation.
Mr Gjonej was able to answer questions, more or less, regarding his financial inter-relationship with Ms Minicozzi. However, in response to a question regarding who lived in the house with him and Ms Minicozzi, he introduced Bubby, the dog, as a resident.
As previously indicated, the impression of the Tribunal was that the applicant’s evidence, in respect of his living arrangements with Ms Minicozzi was somewhat rehearsed. He answered as follows, in response to a question regarding his sharing of a bedroom with Ms Minicozzi:
“Yes, we sleep in same one. I sleep left side, she sleep on right side. Like the window side and I sleep on the bathroom side. The bed is wide. The bed. Very beautiful house. Very nice. I’m lucky to live where I am. And I love to live with my wife.”
The applicant and Ms Minicozzi are not married. In his evidence, the applicant insisted that he was married to Ms Minicozzi and had a marriage certificate to this effect. He also insisted that she was divorced from Mr Minicozzi, which is not the case.
When asked if he had anything more to say about his situation, after initially indicating that he did not understand the question, the interpreter responded with the statement, apparently originating with Mr Gjonej, that “He likes reading…”[26]
[26] Ibid at page 21
In response to a question regarding whether any compelling or compassionate reasons existed in his case to grant the visa, the applicant said as follows:
“…for many years now I have lived with her, and we love each other, it’s many years that we have loved each other. I don’t know why everyone’s been refusing me, I’ve been refused by the Department 3 times, and no one has said why. We live together, they can come and check home, they can come and do whatever they want. I have many reasons so I can have the visa.”[27]
[27] Ibid at page 26
This statement, although not expressed with any great degree of fluency, does seem to encapsulate the applicant’s case and is responsive to the question put to him. However, at the conclusion of the Tribunal’s questions about the applicant’s current circumstances, particularly as to whether any compelling circumstances applied to him, he said as follows:
“I don’t know, I don’t understand much of what you are saying.”[28]
[28] Ibid at page 27
However, after the interpreter apparently intervened, the applicant said as follows:
“Of course, because I am married. For many years I have lived with my wife and we are in love and everything. That’s what’s the reason why. I have been sick, my mental health condition is not very good. I have not been very well, that’s what’s my conditions for the visa. Are you convinced how I feel like.”
Again, this answer broadly encapsulates the applicant’s situation and why he had been making representations, first to the delegate and then to the MRT. He confirms, in his own words, that he is in a loving relationship. In a generic sense, the applicant was presenting an argument, relevant to his situation, to the Tribunal, albeit not with any great degree of fluency or cogency.
It is the submission of counsel for the applicant, Mr Ower, that the statement in the Tribunal’s reasons, regarding Mr Gjonej’s obvious mental health infirmities, is a misstatement of what occurred at the hearing and is factually incorrect. As such, it is submitted that what amounts to Mr Gjonej’s mere mechanical participation in the hearing concerned is insufficient to discharge the Tribunal’s legal obligation to give effect to the requirements of section 360 of the Act.
The relevant findings of the Tribunal, in respect of Mr Gjonej’s evidence before it, is as follows:
“The Tribunal asked Mr Gjonej about his current health and the effect of any condition or medication on his ability to answer questions. Mr Gjonej said he is on medication and the effect of the medication is to relax his mind. He said he was able to answer questions and wanted to be at the hearing. His representative said he may need more frequent breaks, and Mr Gjonej was provided with the opportunity for breaks as required. The Tribunal has taken into account his recent hospitalisation and his mental illness in considering his evidence. It found Mr Gonej was able to give evidence and participate in the hearing. He did not appear to have any difficulty in understanding questions asked of him or in providing a response to questions asked of him.”[29]
[29] See case book at page 130 [6]
Firstly, it is submitted that the Tribunal has clearly misstated, by omission, the applicant’s evidence regarding the effect of his medication on him. Although Mr Gjonej did say the medication “relaxed his mind” his initial comment was that he was affected “badly” by it.
Secondly, it is fallacious for the Tribunal to assert that Mr Gjonej was able to give evidence and participate in the hearing given the non-sequiturs and ludicrous answers provided by him. In this context, whilst it conceded that the applicant had no difficulty in providing responses to the questions put to him, his responses were frequently odd or otherwise incongruent.
On this basis, it is submitted that the decision of the Tribunal is vitiated by jurisdictional error, as envisaged by the Full Court in SCAR, because the applicant was not provided with a meaningful opportunity to participate in the hearing as required by section 360 of the Act.
Ground Two
A failure, by a tribunal, to deal with or consider an aspect of a claim made by an applicant before it, which falls within the remit of the jurisdiction of the tribunal concerned, amounts to a denial of procedural fairness and vitiates the resulting decision, on the basis that it has been made without consideration of all aspects of the case of the applicant concerned.[30]
[30] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394
In Htun v Minister for Immigration & Multicultural Affairs Allsop J (as he then was) described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…”
The requirement on a tribunal, such as the MRT, is to consider and respond to all substantial, clearly articulated arguments relying upon established facts. In this case, it is the applicant’s submission that the MRT failed to respond to such a clearly articulated submission made on his behalf, which related to the nature of his relationship with Ms Minicozzi.
Accordingly, it is argued that the Tribunal failed to discharge its jurisdiction arising under regulation 2.03A, namely to consider whether compelling and compassionate circumstances pertained to the applicant because of his illness and the support he derived from Ms Minicozzi.
As previously indicated, the Tribunal found that the de facto relationship between Mr Gjonej and Ms Minicozzi commenced on 23 November 2010. This was a finding of fact it was entitled to make and no challenge is made to it. This finding of fact engaged regulation 2.03A and a requirement of the Tribunal to consider whether compelling and compassionate circumstances justified the grant of the visa in question.
It is clear that the applicant did make a submission, through his solicitor on 4 October 2013 that such compelling and compassionate circumstances did exist in his case. There were four components of this claim, which the MRT summarised in its decision.[32] The fourth of these is that Mr Gjonej and Ms Minicozzi “have a loving and affectionate relationship”.
[32] See case book at page 135 [39]
The Tribunal actively considered issues raised by the applicant relating to his safety, if deported; the potential consequences of the applicant being removed from his current mental health regime; and the circumstances pertaining to Ms Minicozzi, particularly her relationship and responsibilities for her son. Each of these submissions was rejected as amounting to compelling and compassionate circumstances.
However, it is submitted that the decision record is silent in respect of the fourth consideration. As such, the only inference, which can be drawn from this obvious omission, is that the Tribunal has overlooked the submission, as it has made no finding of fact in regards to it. In these circumstances, it is submitted that it is clear the Tribunal has failed to exercise the jurisdiction conferred upon it.
The respondent’s submissions
Ground One
Counsel for the Minister, whilst acknowledging the obligation of the Tribunal, pursuant to section 360, to provide a real and meaningful invitation to an applicant to attend before it, submits that there was no procedural unfairness or denial of natural justice to the applicant in the particular circumstances of this case.
To the contrary, it is submitted that the Tribunal went to some lengths to accommodate the applicant and his idiosyncratic difficulties and needs. Firstly, on the application of Mr Gjonej, the proceedings were deferred on two occasions due to his ill health.
Secondly, the actual hearing of the application of 23 September 2013 took place following the written confirmation of Mr Gjonej’s solicitor that her client had been discharged from hospital and was expected to be well enough to attend the re-scheduled hearing.
Thirdly, Mr Gjonej was represented throughout the hearing and no exception was taken, by his legal representative, to the hearing proceeding. In these circumstances, it is submitted that it was incumbent on those advising Mr Gjonej to inform the Tribunal of any difficulties being experienced by their client, not for the Tribunal to undertake its own inquiries.
Essentially, it is submitted that the hearing in question proceeded with the applicant’s apparent acquiescence and that of his advisors. As such, there was no obligation incumbent on the Tribunal itself to suspend the proceedings or obtain its own psychiatric or other medical assessment of the applicant and his capacity to take part in the proceedings. Rather, these were matters solely for the applicant and those advising him.
In addition, it is asserted by counsel for the Minister that the transcript of the applicant’s evidence, when read as a whole, does demonstrate that he understood questions put to him and was aware of the issues germane to his application before the Tribunal. In these circumstances, the Tribunal was entitled to conclude, as it did, on the basis of the material before it, that the applicant was able to participate in the hearing before it.
As a consequence of these matters it is submitted that the invitation issued to the applicant must be considered to have been a real rather than token one. In these circumstances, there has been no lack of procedural fairness and no breach, by the Tribunal, of the requirements of section 360.
Ground Two
The Minister rejects that the contention that the Tribunal failed to consider properly all relevant aspects of the applicant’s claim that compelling and compassionate circumstances pertained to his situation with Ms Minicozzi.
In this context, it is submitted that the Tribunal was under no obligation to refer to each and every contention put forward by the applicant. Rather it is contended that a fair reading of the decision, as a whole, indicates that the Tribunal had regard to issues surrounding the applicant’s mental health and his alleged dependence on Ms Minicozzi.
In this context, it is submitted that the Tribunal accepted that the applicant and Ms Minicozzi had a shared commitment to a mutual life, albeit with some serious reservations.[33] It made numerous references, in the decision to issues surrounding Mr Gjonej’s mental health, including his hospitalisation and the fact that Ms Minicozzi had visited him in hospital.[34]
[33] See case book at page 134 [35]
[34] Ibid at [32]
As such, it cannot be established that the Tribunal did overlook the nature of the applicant’s relationship with Ms Minicozzi in considering the issue of compelling circumstances.
Conclusions
The ground relating to the section 360 hearing
As Flick J observed in SZQBN the question of whether a claimant’s mental condition has deprived him or her of a meaningful opportunity to be heard, in response to an invitation issued under section 360 of the Migration Act, is one which demands careful consideration and how the question is answered will depend on the circumstances prevailing.
In SCAR, for example, the applicant concerned, who sought refugee status, had received news of the death of his father shortly prior to his appearance before the relevant tribunal and was understandably very upset as a result.
On appeal, it was accepted that the applicant’s evidence had been vague and he had not been in a position to acquit himself appropriately before the tribunal. These were factors unknown to the tribunal concerned at the date of the first hearing. As previously indicated, in all these circumstances, it was accepted by the Full Court, through no fault of the tribunal concerned, that the applicant had not received the fair hearing required under the Act.
The circumstances in the current case are different. The MRT was well aware of the applicant’s mental health issues, due to the previous deferrals of hearings concerning him. Thereafter the hearing of 24 September 2013 proceeded on the basis of assurances, from the applicant’s solicitor, that he was well enough to take part in it. In addition, the applicant was represented throughout the hearing.
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[35] also concerned an applicant for refugee status, who sought to adjourn proceedings before the Refugee Review Tribunal on the basis that he was not psychologically well enough to attend.
[35] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALD 224
The tribunal concerned sought its own psychological assessment of the applicant, who was in immigration detention and thereafter elected to proceed with the hearing. Issues arose as to whether the psychological report obtained by the tribunal was sufficient to justify the matter proceeding.
In the High Court, issues of procedural fairness were raised, particularly in respect of whether the applicant concerned was competent to take part in the proceedings. Gleeson CJ said as follows:
“Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell…[The assessment obtained] was for a limited and reasonably specific purpose. The tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage.”[36]
[36] (supra) at 228 [19]
In my view, these comments are apposite to the current matter. The Tribunal was aware that Mr Gjonej was likely to be labouring under significant difficulties as he presented his case. This was because his solicitor had informed it to this effect and, as a consequence, two earlier scheduled hearings had been deferred.
The relevant hearing took place as a consequence of Mr Gjonej’s solicitor informing the Tribunal that her client had been discharged from hospital “and it was expected that he would be well enough to attend the hearing…” During the hearing itself, the applicant was granted a recess, on his own application, because he said he was “upset”.
I accept that Mr Gjonej cannot be regarded as having presented his evidence before the Tribunal with any great degree of acumen or flair. Nor do many other applicants. Mr Gjonej undoubtedly provided many odd answers, which did not assist him. However, he was able to profess his love for Ms Minicozzi and provide details of the life he shared with her, albeit that the Tribunal considered this evidence stilted and rehearsed.
In addition, the hearing before the Tribunal proceeded without demur from either the applicant himself or his solicitor. In these circumstances, it seems to me that this situation can be distinguished from that which existed in SCAR.
Applying what was said by Gleeson CJ, it does not seem to me that the Tribunal was obliged, of its own volition to suspend the proceedings or embark upon any independent inquiries, of its own, regarding the applicant’s psychological or psychiatric health.
In SGLB the High Court (Gummow & Hayne JJ) found that there was no requirement for a tribunal, such as the MRT or the RRT, to embark upon any process to determine the competency of an applicant to take part in proceedings. That is not to say that issues regarding a particular applicant’s level of psychological or psychiatric infirmity may not be relevant to issues relating to procedural fairness.[37] The rules of procedural fairness are not a fixed code, but must be applied with flexibility according to the circumstances or situation prevailing in the case concerned.
[37] (supra) 235 [45]
Minister for Immigration & Citizenship v SZNVW[38] was also a case concerned with refugee status and so the application of section 425 of the Act. The case shared some factual features in common with SCAR. The applicant for the protection visa was found by the tribunal concerned to be unreliable and no weight was given to medical material provided by him that he suffered from a depressive condition, which might lead to procrastination on his part.
[38] Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575
On initial judicial review, further psychological evidence was provided, which indicated that the applicant was mentally impaired, particularly in respect of his ability to remember. It was found, on the basis of this evidence, that he had been denied a real and meaningful opportunity to participate in the hearing. Accordingly the Federal Magistrate concerned, in the initial judicial review decision, utilised both the terminology and reasoning provided in SCAR.
On appeal by the Minister, in the Full Court, Keane CJ (as he then was) said as follows:
“None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving his evidence and presenting his arguments, the hearing required by s. 425 of the Act is not nullified by a mere failure of an applicant to present his case in the best possible light.”[39]
[39] (supra) at 581 [22]
The persons best placed to determine whether Mr Gjonej was suffering from such a degree of psychological deficit as to prevent him from presenting his case were Mr Gjonej himself and those advising him. This judgement was made on two occasions by them, which led to the deferral of the hearing. The hearing in question proceeded on the assertion of the applicant’s solicitor that it could.
Thereafter, no further evidence has been provided as to the level of the applicant’s psychological difficulties, if any, at the hearing itself. Rather, this court is asked to conclude from the transcript of proceedings that the applicant was suffering from a level of disability, which essentially precluded him from presenting his case in any manner whatsoever. In my view, this is essentially a fact finding exercise and I am being asked to substitute my judgement for that of the MRT.
The difficulty arising from the applicant’s current position is that, having received an adverse outcome, following proceedings in which he took part, with his apparent acquiescence and the imprimatur of his legal advisor, he seeks to vitiate those proceedings without adducing further evidence. Rather, he asserts that it is apparent, from the transcript of his evidence, that he was precluded, due to his psychiatric condition, from taking a proper part in the proceedings themselves.
The Full Court in SZNVW distinguished the earlier decision in SCAR, where the original tribunal was oblivious of the mental problems of the applicant concerned and further evidence was adduced on appeal. Keane CJ said as follows:
“The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.”
Perram J agreed. He said as follows:
“The respondent suffered the misfortune of not running his case as well as he might have. Regrettably though that outcome might appear to be, this Court is bound to conclude that “a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.”[40] Whatever disquiet one may feel about the Tribunal’s reasons, now to permit review for an error of presentation would be to create a most unwholesome precedent.”[41]
[40] Perram J was referring to SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 at [53]
[41] Minister for Immigration & Citizenship v SZNVW (supra) at 598 [87]
It is impossible not to feel some level of disquiet about many of the responses made by the applicant to propositions put to him by the MRT. He did not acquit himself well. I agree that a significant number of his answers must be regarded as bizarre.
However, in my view, it would be improper for me to conclude, in these review proceedings, on the basis of the transcript alone, that the applicant was precluded from giving evidence, rather than that he did not do a very good job at presenting what evidence he did.
For these reasons, I have reached the conclusion that the applicant’s argument based on a contravention of section 360 of the Act is not made out.
The ground relating to an integer of the claim not being considered
It is central to the exercise of its review functions that the MRT should consider all information, considerations and arguments, which are relevant to the application before it. This is the nub of the applicant’s contention. He argues that the MRT did not consider, as part of its responsibility to determine whether compelling circumstances pertained to him, the nature of his relationship with Ms Minicozzi, particularly in the context of his history of serious medical incapacity.
In my view, when the reasons for decision are read as a whole, this contention cannot be made out. Although the Tribunal regarded much of Mr Gjonej’s evidence regarding the shared personal habits of him and Ms Minicozzi, with some scepticism,[42] it accepted that the two were in a de facto relationship, at the time of hearing.[43] The Tribunal also referred, on numerous occasions, to the applicant’s history of mental ill-health.
[42] See case book at page 133 [26]
[43] Ibid at page 134 [35]
In this context, the MRT made reference to evidence provided by Mr Gjonej, which indicated that Ms Minicozzi had visited him regularly in hospital and was therefore a source of emotional support and companionship for him. This was prior to the Tribunal summarising the four separate heads under which it was claimed compelling and compassionate circumstances existed.[44]
[44] Ibid at page 135 [39]
Accordingly, I do not think it can be inferred from the fact that thereafter, merely because each of the other separate heads got their own discrete paragraph in the reasons, with a specific rejection, that the Tribunal did not consider the central issue in the case – the nature of the relationship between Mr Gjonej and Ms Minicozzi – within the rubric of compelling and compassionate circumstances.
Rather, a comprehensive reading of the judgement, as a whole, indicates that the MRT gave close consideration to the nature and basis of the relationship between Mr Gjonej and Ms Minicozzi and in fact went to some pains to place the most favourable connotations on the relationship, as it was able to do so.
In these circumstances, in my view, what was said by French J (as he then was) in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[45] is instructive:
““The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[46]
[45] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 630 at 641 [47]
[46] WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at 641 [47]
In my assessment, the reasons of the MRT are to be regarded as comprehensive. Much consideration was given to the nature of the applicant’s relationship with Ms Minicozzi and the implications of his mental illness. After having determined that the evidence regarding when the parties had begun their relationship was unreliable, but after nonetheless accepting that a de facto relationship had come into being between the applicant and Ms Minicozzi, albeit with some reluctance, the Tribunal was well aware that it was required to consider whether compelling and compassionate circumstances pertained to the relationship, which the Tribunal had thus far closely considered.
In these circumstances, I do not think that it can be reasonably inferred that, after identifying the nature of the parties’ relationship as one of the potential integers of such compelling and compassionate circumstances, the Tribunal has overlooked it in the remainder of the decision, given the emphasis placed on it, in what precedes.
Accordingly, I have come to the conclusion that this ground of review is not sustained. The appeal should therefore be dismissed and costs, as sought by the Minister awarded in the amount specified in the schedule to the Federal Circuit Court Rules, which is $6,646.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 24 October 2014
[31] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
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