Gurung v Minister for Immigration - [2018] FCCA 1649

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1649

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to take into account a relevant consideration – whether legal unreasonableness – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), sch.2, cl.820.211, sch.3, 3001, 3003, 3004

Cases cited:
Monakova v Minister for Immigration & Anor [2006] FMCA 849
Prempree v Minister for Immigration & Anor [2017] FCCA 220
Al Souhmarani v Minister for Immigration & Anor [2016] FCCA 2866
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121
Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24
Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2000) 240 CLR 611

Applicant:

RAJEEV GURUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1853 of 2016

Judgment of:

Judge Nicholls

Hearing date:

27 February 2018

Date of Last Submission:

27 February 2018

Delivered at:

Sydney

Delivered on:

25 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application made on 12 July 2016 and amended on 21 November 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1853 of 2016

RAJEEV GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 July 2016, and amended on 21 November 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Partner (Temporary) (Class UK) visa (“the visa”) to the applicant.
The evidence before the Court is a bundle of relevant documents filed by the Minister, and tendered by the applicant (“the Court Book – “CB”, “AE1”). The applicant also filed the affidavit of Amina Youssef, solicitor, made on 2 February 2018 annexing a transcript ("T") of the applicant’s hearing before the Tribunal. This was read into evidence at the instigation of the Minister.

Background

The applicant’s written submissions drafted by counsel and filed in these proceedings on 21 November 2016, set out in detail the procedural background to the application for the visa. It is a fair summary of these matters. Given that the Minister considers it to be an “adequate” summary, I adopt it as background for the purposes of this judgment as follows ([2] – [8] of the applicant’s written submissions):
“[2] The events relevant to the present proceeding are as follows:
(a) 5 July 1997 – last substantive visa of the Appellant expires;
(b) 23 April 2015 – Appellant applies for the visa;
(c) 18 March 2015 – Delegate of the Minister refuses to grant the visa; and
(d) 21 June 2016 – Tribunal affirms the decision of the Delegate of the Minister to refuse to grant the visa.”
[3] The criteria for the visa were set out in Subclass 820 of Sch 2 to the Regulations. By virtue of the fact mentioned in paragraph 2(a)-(b) of these submissions, namely that the Appellant did not hold a substantive visa at the time of the application for the visa, the Appellant was also required to satisfy the criteria in Sch 3 to the Regulations: see cl 820(2)(d)(ii). Alternatively, the Appellant was required to satisfy the Tribunal that there were “compelling reasons” for not applying those criteria.
[4] One of the criteria in Schedule 3 to the Regulations was criterion 3001. That criterion required that the application for the visa was required to have been lodged within 28 days of the “relevant day”. For present purposes, the “relevant day” was the last day on which the Appellant held a substantive visa (see cl 3001(2)(c)(iii)). It is immediately apparent that the Appellant did not satisfy criterion 3001.
[5] As a result, the Tribunal had to consider whether or not there were “compelling reasons” for not applying criterion 3001. The Tribunal recounted, from paragraphs 33 to 34 of its decision, the law relevant to “compelling reasons” in the context of criterion 3001. It noted that such reasons must be “sufficiently powerful” in light of Federal Court authorities and could arise at any time up until the Tribunal’s decision, in light of the judgment of the Full Federal Court in Waensila v MIBP [2016] FCAFC 32.
[6] The Tribunal made three fin[d]ings relevant to the Applicant’s case in this Court for judicial review. First, the Tribunal found (at para 8):
The Applicant gave evidence at the hearing. He stated that he regretted the expiry his visa and his period of unlawfulness in Australia. He was naïve young and had little money. He was still paying for his mistake. He stated that his last substantive visa expired on 5 July 1997. He first met his wife in Jul 2007.
[7] The Tribunal then found (at para 37):
The parties claim that the sponsor suffers from ongoing pain and cramps arising out of the residual fibroids. They further claim that the sponsor is not physically strong and suffers from low blood pressure and dizziness. They claim that the applicant cares for the sponsor, for example by cooking, giving her massages, getting her hot water bottles and Panadol. Given the medical evidence on file, the Tribunal accepts the parties’ claim in relation to the sponsor’s medical problems. The Tribunal, however, is not satisfied that the applicant’s ongoing care amounts to a compelling reason, particularly given that the sponsor works as a nurse at Auburn Hospital.
[8] Lastly, the Tribunal found (at para 41):
The parties claim that they paid a deposit of $56 000 on a unit, which will be completed in about 2 months’ time. According to a document submitted to the Tribunal following the hearing, the parties received “conditional approval” from St George Bank dated 1 June 2016. They further claim that it will be too difficult for the sponsor to make the repayments on the mortgage, once they have bought the unit. The parties claim that they must proceed with the purchase of the unit because first they feel pressured by family and friends to settle and secondly they would lose money due to the devaluation of the property, claims which the Tribunal finds unconvincing. The Tribunal is not satisfied that this constitutes a compelling reason to waive Schedule 3.”

The application to the Court

The grounds of the amended application to the Court are as follows:
“1. The Tribunal failed to take into account a relevant consideration, being the Applicant’s evidence as to why he had not, from 1997, complied with criterion 3001 in Schedule 3 to the Regulations;
2. The Tribunal’s failure to find compelling reasons, given the evidence and findings set out in paragraph 37 and 41 of the Tribunal’s decision, was legally unreasonable.”
Ground one asserts that the Tribunal failed to take into account a relevant consideration. That is said to be the applicant’s evidence to the Tribunal as to why he had not “from 1997” complied with criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Criterion 3001 of Schedule 3 to the Regulations, at the relevant time, was in the following terms:
“Schedule 3 – Additional criteria applicable to unlawful non-citizens and certain bridging visa holders
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.”
The criteria for the visa for which the applicant applied are set out in Schedule 2 to the Regulations (Subclass 820 Partner visa). For current purposes, cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations required the applicant, at the time of making the application for the visa, to satisfy, amongst other criteria, criterion 3001 of Schedule 3 to the Regulations, unless the Minister could be satisfied that there were “compelling reasons” for not applying that criterion.
In the current case, there was no dispute between the parties that the applicant did not satisfy criterion 3001 of Schedule 3 to the Regulations. His last substantive visa expired on 5 July 1997. The application for the visa was made on 23 April 2014. This is well over 16 years after the expiry of the 28 day period referred to in criterion 3001 of Schedule 3 to the Regulations.
In these circumstances, the Tribunal was required to consider whether there were “compelling reasons” to not apply criterion 3001 of Schedule 3 to the Regulations.
Before the Court, the applicant explained that the issue in dispute between the parties, in relation to ground one, was as follows. First, the extent or range of, matters that the Tribunal (as the relevant decision-maker) was required to consider in determining the question of whether there were “compelling reasons” such as to not apply criterion 3001 of Schedule 3 to the Regulations. Second, the extent to which the Tribunal actually took these matters into account.
The applicant referred to a number of authorities. First, Monakova v Minister for Immigration & Anor [2006] FMCA 849 (“Monakova”) per Phipps FM (as he then was) at [28] – [31]. The proposition drawn from this authority was said to be that the “compelling reasons” are those reasons which are relevant to allowing the applicant to make an application for the visa onshore.
In this case, the relevant visa is the Subclass 820 Partner visa. The application for the visa was made in circumstances where criterion 3001 of Schedule 3 to the Regulations did not permit an application to be made onshore unless it was made within 28 days of the cessation of the last substantive visa held by the applicant.
What was said to follow from the proposition at [11] above, was that any matter which is taken into account (in consideration of “compelling reasons”), and is not relevant to that purpose, is an irrelevant consideration.
Second, the applicant referred to Prempree v Minister for Immigration & Anor [2017] FCCA 220 (“Prempree”) per Judge Smith at [33] which considered Monakova:
“While his Honour [with reference to Monakova] focused on the immediate purpose of the criterion in question, he did not exclude, as part of the relevant purpose, to be considered the broader context of the purpose of the Migration Act as a whole. Even so, the Tribunal did not fall into the error identified by his Honour in that case.”
The applicant’s submission was that Monakova should not be read “too prescriptively”. Further, that the “measure of breadth” relevant to the Tribunal’s consideration are “connected” with the relevant exercise of the “waive of power”.
That was a reference to the consideration that, if “compelling reasons” were found, criterion 3001 of Schedule 3 to the Regulations would not apply, and the person could apply for the spouse visa onshore.
Third, the applicant referred to Al Souhmarani v Minister for Immigration & Anor [2016] FCCA 2866 (“Al Souhmarani”) at [32], and in light of [29]. This was for the proposition that what was said in Prempree and Monakova and should not be read “prescriptively”.
Fourth, the applicant referred to Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (“Waensila”). The applicant argued that Waensila was a case about “temporality”. That is, the Court found that while the applicable criteria must be satisfied as at the time of application, the Tribunal cannot exclude from its consideration, events that “arose later”.
The applicant’s argument was that the “flexibility in the operation of the legislative and regulatory scheme” (see Waensila at [2] and [8]), meant that not only was the exercise of the Tribunal's power not limited to exclude subsequent events, but in the applicant’s submission, it should also encompass events prior to the time of the making of the application.
The submission was that those events go to the question of what the applicant described as the “waiver”. In particular, that evidence going to the question as to why the applicant did not satisfy the “compelling reasons” requirement at a point of time earlier than the making of the application, was material to the consideration.
In that light, the applicant argued as follows. The Tribunal’s consideration of the applicant’s evidence in relation to the question of “compelling reasons” begins in its decision record at [35] (at CB 374). What follows at [36] (at CB 374) to [44] (at CB 375) is the Tribunal’s consideration of the evidence, and whether there were “compelling reasons” in the circumstances.
The applicant’s submission was that in that analysis, the Tribunal did not consider the circumstances of the “original non-compliance”. That is, the reasons relevant to the cessation of the applicant’s visa and his subsequent stay in Australia.
The Tribunal, therefore, failed to have regard to the explanation provided in Waensila, as to how to approach this consideration. The Tribunal failed to have regard to the “breadth” of the “relevant time” arising from the statutory (regulatory) provision.
I do not understand Monakova to assist the applicant’s argument. In essence, I respectfully understood Monakova, and those parts relied on by the applicant now, to say that what the Tribunal is required to consider, in considering “compelling reasons”, are those matters which are relevant to the purpose of permitting a person to make an application for a spouse visa in Australia (onshore). That is, the relevant purpose of the criteria (see Monakova at [28]).
In context, the reference to these “criteria” is to criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations, as identified in Monakova at [27].
I agree with the Minister that the language of Monakova, with respect, appears to restrict the Tribunal’s consideration to matters relating to the alleviation of hardship of not allowing an applicant to apply for a spouse visa onshore. This says nothing about the consideration of the very matter that the applicant now says the Tribunal, in the current case, should have considered, and did not.
In any event, the applicant’s view of Monakova, appears to be contrary to the “flexible” approach explained in Waensila.
As was made clear in Waensila, and for that matter in Prempree and Al Souhmarani, criterion 3001 of Schedule 3 to the Regulations, for current purposes, must be read with cl.820.211 of Schedule 2 to the Regulations. Criterion 3001 of Schedule 3 to the Regulations says nothing about “waiving” the requirement set out there. That “waiver”, as relevant to the current case, arises from cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, which is the provision that makes reference to “compelling reasons for not applying”, relevantly, criterion 3001 of Schedule 3 to the Regulations.
In short, the following was, in my respectful view, made clear by Robertson J in Waensila (at [9] – [11]):
“[9] I turn to consider these competing submissions. I shall not refer to cl 820.211(2)(d)(ii) as a waiver provision as that nomenclature seems to me to be a potential distraction. The question is what material the Minister may take into account when deciding an application for a subclass 820 visa. It is common ground that the cl 820.211(2)(d)(ii) question is addressed at the time the decision is made.
[10] It is also common ground that the visa applicant must satisfy the Schedule 3 criteria 3001, 3003 and 3004 at the time of application, subject to the Minister’s discretion where the Minister is satisfied that there are compelling reasons for not applying those criteria.
[11] In my opinion, it is not a correct starting point to describe the Minister’s discretion as itself a criterion. It is more accurately to be described, as is clear from its terms, as a power to decide that Schedule 3 criteria 3001, 3003 and 3004 not apply so that the visa applicant need not satisfy them at the time of the application for the visa.”
Further, Waensila at [2] per Dowsett J:
“I agree that the present problem is resolved by recognizing that cl 820.211 of the Migration Regulations 1994 (Cth), read with the heading, requires that, where applicable, criteria 3001, 3002 and 3003 must be satisfied as at the time of application. However that proposition says nothing about the Minister’s power to dispense with the application of those criteria or the time at which that power may be exercised. As demonstrated by Robertson and Griffiths JJ, the power is designed to provide flexibility in the operation of the legislative and regulatory scheme. That flexibility ought not be limited by limiting the circumstances which may be relevant to the exercise of the power, at least in the absence of any statutory or regulatory requirement.”
In his submissions, the Minister referred to what he described as the “logical flaw” in the applicant’s argument. This was explained as follows. The applicant relies on Monakova. That case found that the Tribunal in that case took into account an irrelevant consideration. It was found to be irrelevant because the purpose of the relevant regulations did not permit the matter to be considered, or in other words, to be taken into account.
The “logical flaw” is that the applicant seeks to rely on this, to then argue, that in the current case, the Tribunal failed to consider a matter it was bound to consider.
Whether this can be described as a “logical flaw” or otherwise, what remains is that the applicant has not satisfactorily explained how Monakova assists his case, or provides the basis for his argument.
In my respectful view, the authorities relevant to the disposition of this ground are Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24 (“Peko Wallsend”) and Waensila.
The Act does not define the term “compelling reasons”, relevantly as it appears at cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. Nor does the Act, or the Regulations, set out the matters to which the Tribunal was required to have regard in considering whether, for the purposes of cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, the criterion 3001 of Schedule 3 to the Regulations should not be applied.

In this context, what was relevantly said in Peko Wallsend, and was, in my respectful view, made clear by Robertson J in Waensila (at [14] – [15]), mandatory “relevant considerations” (those the Tribunal was bound to consider) are to be determined by “implication from the subject matter, scope and purpose of the Act” (Peko Wallsend at 39 to 42 per Mason J).
The power to dispense with criterion 3001 of Schedule 3 to the Regulations (as it appears at cl.802.211(2)(d)(ii) of Schedule 2 to the Regulations) was described by Griffiths J in Waensila as a “waiver power”. It is a “power to waive or dispense with what otherwise is a requirement which forms part of the criterion [for the grant of the visa] in clause 820.211(1)(b)” (Waensila at [52]).
As was further explained in Waensila per Griffiths J (at [54]):
“The waiver power was obviously intended to be available to deal with cases where there were ‘compelling reasons’ for not putting particular applicants to the hardship of having to leave Australia for that purpose. Given the nature of that power and the time when its possible application arises for consideration, clear words are required which would have the effect of confining that consideration to events which only existed at the time the visa application was made. Such a restriction would remove from consideration circumstances which occur after that date and constitute ‘compelling reasons’ for not exposing some partner visa applicants to the hardship of leaving Australia and make a fresh application from overseas. I do not consider that the text of the relevant provisions contains such clear words.”
As is also, in my respectful view, clear, this analysis was directed to the question before the Court, namely, whether the relevant consideration was confined to events existing at the time of the making of the application for the visa.
The arguments centred around whether the decision-maker was confined to considering matters existing as at the time of the making of the application (see the heading at cl.820.21 of Schedule 2 to the Regulations, “[c]riteria to be satisfied at time of application”) or whether the decision-maker could consider matters “which emerged after the date of application” (Waensila at [58]).
What was not explained in the applicant’s submissions before this Court is the difference between those matters (in the context of “compelling reasons”) which the Tribunal was compelled, or bound, to consider or not consider, and those matters which it could, but was not compelled, to consider.
The Minister’s submissions explained this with reference to Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 per Deane J as follows (see [11] of the Minister’s written submissions):
“…where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards…”
Ultimately, Monakova, when properly considered in light of the other authorities referred to above, and in particular, Waensila, does not assist the applicant in his argument that the Tribunal was bound to consider (in the context of “compelling reasons”) the events surrounding the expiry of the applicant’s substantive visa in 1997.
The Minister correctly submits that Monakova and Waensila provide a contrary position to that contended for by the applicant. The authorities support the proposition that the power to dispense with criterion 3001 of Schedule 3 to the Regulations is given by the Regulations to promote flexibility in the range of matters which can be considered by the Tribunal (Waensila at [2], [18] and [56]).
This can also be seen also with the operation of criterion 3001 of Schedule 3 to the Regulations itself. Criterion 3001 only became relevant when the applicant applied for the visa on 23 April 2014. At the time of the cessation of the applicant’s visa in 1997, criterion 3001 had no role to play. That role emerged on 23 April 2014 to prevent the applicant from making his application at that time.
In any event, and further, the applicant did not satisfactorily establish before the Court that the Tribunal did not consider, or “overlooked”, the applicant’s evidence as to the circumstances of the expiry of his previous visa.
This is because the applicant’s argument in this regard was essentially that the Tribunal “recounted” the applicant’s evidence as to events in 1997, but made no finding as to whether the circumstances, of themselves, or in consideration with later circumstances, constituted “compelling reasons”.
The first answer to the applicant’s argument is that, given what is set out above, the Tribunal was not compelled to embark on such consideration.
Second, on a fair reading of the Tribunal's decision record, it is reasonable to infer that the Tribunal had considered this evidence as not being relevant to the question of whether there was “compelling circumstances”.
It is the case that the applicant did give some evidence at the Tribunal hearing concerning the reasons for the expiry of his visa (see [8] at CB 370 and see T6.4 and T7 to T8).
It is of relevance to note that this evidence was given in answer to the Tribunal’s question (T6.3):
“[Member]: … So Mr Gurung is there anything you would like to tell me before I ask you some questions?”
Of importance is the Tribunal’s question at T9.5:
“[Member]: Ok. So you’ve told me when your last substantive visa expired, which was quite a while ago. So I’ll need to consider compelling reasons which exist for waiving that particular Schedule 3 criterion. What do you say are the compelling reasons why it should be waived?”
There is nothing in the applicant’s lengthy answer to that question to indicate that he put forward the events of 1997 as constituting a part of his claim as to why the Tribunal should find that “compelling reasons” existed for the “waiver of criterion 3001” (T9.6 to T10.2).
Nor is there anything else in the evidence before the Court to indicate that the applicant claimed the events in 1997 constituted “compelling reasons” for the purposes of the consideration of the grant of the visa in 2016.
As set out above, the applicant’s submissions before the Court were, in part, that the Tribunal “discounted” or overlooked the applicant’s circumstances in 1997.
The Tribunal’s reference at [8] (at CB 370) of its decision record reveals that it did not “overlook” this evidence. Rather, when read fairly in the circumstances, the Tribunal did not consider these circumstances to be relevant to the question the Regulations had set for it.
As the Minister noted in his submissions before the Court, the Court cannot engage in merits review. However, it is appropriate to ask for current purposes how the applicant’s evidence about 1997 was relevant to the question of “compelling reasons”, such that the Tribunal’s claimed failure to take them into account, or to regard them as a relevant consideration (that is, relevant to the question posed by cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations), was a failure to take into account a mandatory consideration.
The applicant was born in 1968 (CB 2). In 1997 he was 29 years old. The submissions assert that the Tribunal should have taken into account the applicant’s evidence that he was “young and naïve” and he “regretted” the circumstances of the expiry of his visa and his period of unlawfulness in Australia (nearly 20 years).
I agree with the Minister that in the circumstances, the Tribunal took the view that none of these matters were relevant to the question of “compelling reasons”. Nor did the applicant ever claim that to be the case before the Tribunal.
In all, ground one is not made out.
Ground two asserts that the Tribunal's failure to find that “compelling reasons” existed, in light of the evidence and in light of its findings at [37] and [41] (at CB 374) of its decision record, was “legally unreasonable”.
The applicant’s written submissions explain that the Tribunal accepted that the applicant’s sponsor for the visa had health problems and required the assistance of the applicant. Yet it found that the circumstances were not compelling because the sponsor was employed as a nurse at Auburn hospital.
This was said, in written submissions, to be “irrational” (the ground says “unreasonable”) because there was no “logical” connection between the sponsor’s employment as a nurse and her need for care from the applicant.
The applicant’s written submissions also explain that the Tribunal’s analysis had similar failings in relation to the matter of the “mortgage”. The complaint is that the Tribunal should have found, in the absence of evidence as to how the applicant and the sponsor acquired “deposit money”, that the claimed hardship in repaying the debt (the subject of the mortgage) was a “compelling reason” for the waiver.
Before the Court, the applicant’s counsel elected not to make any oral submissions in relation to ground two, but I did not understand that the applicant had abandoned ground two.
It is to be noted the applicant’s ground two, in essence, attacks the Tribunal’s findings that informed its conclusion that there were no “compelling reasons” to waive criterion 3001 of Schedule 3 to the Regulations.
First, this directs attention to [37] (at CB 374) of the Tribunal’s decision record, which is as follows:
“The parties claim that the sponsor suffers from ongoing pain and cramps arising out of the residual fibroids. They further claim that the sponsor is not physically strong and suffers from low blood pressure and dizziness. They claim that the applicant cares for the sponsor, for example, by cooking, giving her massages, getting her hot water bottles and panadol. Given the medical evidence on file, the Tribunal accepts that (sic) the parties’ claim in relation to the sponsor’s medical problems. The Tribunal however, is not satisfied that the applicant’s ongoing care of the sponsor amounts to a compelling reason, particularly given that the sponsor works as a nurse at Auburn Hospital.”
[Emphasis added.]
It is the case, as the applicant submits, that the Tribunal did accept, given the evidence before it, that the sponsor suffered some health problems. However, when fairly read, in context, the Tribunal’s finding in the last sentence of [37] was reasonably open to it on the evidence before it.
That evidence is what the applicant told the Tribunal at the hearing. The sponsor’s health and the circumstances relevant to this, were discussed extensively (see T8.8 to T15.7).
The applicant’s evidence was that the sponsor worked at Auburn hospital (T8.9). After hearing evidence about her medical condition, the Tribunal asked (T13.2):
“[Member]: How does she [the sponsor] manage to work as a nurse, which is obviously a very responsible position, if she is feeling dizzy all the time?”
On a fair reading, the “logic” of the Tribunal’s reasoning at [37] was that the applicant’s care for the sponsor, in light of her health issues, was not a “compelling reason”. This was because, given that she was able to manage work as a nurse, a “very responsible position”, and full-time work (T13.4) and on a “shift basis” (T13.6), her care needs were not of such character as to amount to a “compelling reason” to “waive” criterion 3001 of Schedule 3 to the Regulations.
As the Minister submits, it is a matter of fact and degree as to whether those factors or elements accepted, or found, by the Tribunal constitute “compelling reasons”. That is, it is a matter of the evaluation and weighing of the evidence before it. While reasonable minds may differ, the Tribunal’s conclusion and the findings that informed it, were reasonably open to it on the evidence before it (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2000) 240 CLR 611). In this light, the Tribunal’s conclusion was not legally unreasonable, or for that matter, irrational.
Second, [41] (at CB 374) of the Tribunal’s decision record is as follows:
“The parties claim that they paid a deposit of $56 000 on a unit, which will be completed in about 2 months’ time. According to a document submitted to the Tribunal following the hearing, the parties received ‘conditional approval’ from St George Bank dated 1 June 2016. They further claim that it will be too difficult for the sponsor to make the repayments on the mortgage, once they have bought the unit. The parties claim that they must proceed with the purchase of the unit because they feel pressured by family and friends to settle and secondly, they would lose money due to devaluation of the property, claims which the Tribunal finds unconvincing. The Tribunal is not satisfied that this claim constitutes a compelling reason to waive Schedule 3.”
The applicant’s complaint here is that the Tribunal should have found that the financial plans and obligations faced by the applicant and the sponsor did constitute a “compelling reason”.
The written submission in explanation was that there was no evidence before the Tribunal as to how the applicant and the sponsor acquired the deposit money, presumably, for the purchase of the property to which the mortgage attached.
The applicant’s written submissions speculate that it “may be” that “family pressure” was due to their assistance with the deposit money. Further, that the size of the loan may not be easily “serviceable” by the applicant and the sponsor ([23] of the applicant’s written submissions).
That may have been the case. Equally it may not have been. It is not possible to say because there was no evidence to this effect before the Tribunal. As the Minister submits, it was for the applicant to put forward any evidence to the Tribunal to establish that “compelling reasons” existed. It is not for the Court to speculate now as to what may, or may not, have been the case.
It was reasonably open for the Tribunal to find that the circumstances that were presented were “not convincing” in establishing “compelling reasons”. These circumstances included that the applicant entered into arrangements to buy the property and secure a loan with a mortgage when he was unlawfully in Australia, and had been unlawfully in Australia since 1997 with no right to remain in this country.
What the Tribunal found unconvincing in the circumstances presented, for example, was that it would be “too difficult for the sponsor to make the repayments” in the applicant’s absence, yet they nonetheless entered into the mortgage arrangements ([41] at CB 374).
In all, ground two is not made out.

Conclusion

Neither of the applicant’s grounds are made out. In the circumstances it is appropriate to dismiss the application as amended. I will make the appropriate order.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 25 June 2018