Hasani v Minister for Home Affairs
[2020] FCCA 2662
•7 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASANI v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2662 |
| Catchwords: MIGRATION – Partner visa – waiver of criteria - whether tribunal failed to give proper and genuine consideration to evidence said to amount to ‘compelling reasons’ – whether failure to consider claim – whether failure to have regard to corroborative evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.368(1)(f), (4), (4)(a), 368(2), 368(2A), 378(1), Migration Regulations 1994 (Cth), cl.3001(2)(c)(i) & (iii), 3003, 3004 of Sch.3 and 820.211, 820.221(2)(d), of Sch.2 |
| Cases cited: BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445 Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1887 |
| Applicant: | DITMIR HASANI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 44 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 11 November 2019 |
| Date of Last Submission: | 11 November 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 7 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Anag |
| Solicitors for the Applicant: | Christopher Levingston & Associates Lawyers |
| Counsel for the Respondents: | Ms N Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 44 of 2018
| DITMIR HASANI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 January 2013 which affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary)(Class UK) visa (‘the visa’) pursuant to the Migration Act 1958 (Cth) (‘the Act’). The delegate had found that the applicant did not meet the requirement that he must have applied for the visa within 28 days of holding a substantive visa. The delegate was not satisfied that there were compelling reasons for not applying that requirement.
Application to amend grounds
The applicant was represented and at the time of filing his outline of submissions sought to amend his application so as to rely on a new ground in substitution for the ground on which review was originally sought. The first respondent opposed leave being granted to rely on the proposed amended ground. The basis for opposition was firstly that there was no merit in the proposed substituted ground of application and, secondly, that the proposed amendment was made very late. On 5 March 2018, a registrar gave leave to the applicant to file and serve any amended Application by 27 April 2018. The new ground was not proposed until 4 October 2019 when the applicant filed his outline of submissions. Further, the first respondent observes that no Application in a Case was made to abridge the time for filing an amended Application and that no explanation had been given by affidavit or otherwise to explain the significant delay and failure to comply with the order of the registrar. The opposition by the first respondent to the application for leave to amend was both understandable and proper. As counsel for the first respondent observed, the same solicitors have acted for the applicant throughout the course of these proceedings. She was, in my view, correct in submitting that the comments of Judge Smith of this Court in BYM16 v Minister for Immigration and Border Protection[1] are apposite to this matter:
“[6]There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
[7]The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
[8]There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.”
[1] [2017] FCCA 2445.
The application to amend, being made approximately 18 months after the period of leave granted by the registrar, is obviously very late. Nonetheless, I accept the submission of counsel for the applicant that the substance of the proposed new ground is very similar to the ground originally pleaded. Whilst a lack of prejudice to the first respondent should not be regarded as a decisive factor when considering a late application to amend, I am satisfied in this matter that there is no significant prejudice to the first respondent and that in the circumstances it is consistent with the interests of justice to permit the applicant to amend his ground in the manner proposed. Further, I am not able to say that the proposed new ground is devoid of merit.
I grant leave to the applicant to amend his grounds to substitute ground one with the proposed ground two. Accordingly, this matter proceeded on the basis of the amended ground two in the following terms:
“2.The second respondent’s decision of 2 January 2018 is affected by jurisdictional error.
Particulars
a. the second respondent failed to give proper and genuine consideration to the claimed compelling reasons regarding the sponsor’s extreme anxiety and depression diagnosis and the likelihood of the further deterioration of those conditions if the applicant was required to depart Australia;
b. the second respondent failed to give proper and genuine consideration to the claimed compelling reasons relating to concerns regarding the well-being of the fetus during the sponsors pregnancy; and
c. the tribunal fails to take into account information that corroborated the sponsors evidence that the couple had bought a house together in Australia in the sponsor’s name.”
A preliminary issue
The applicant relied on an affidavit of his solicitor Mr Levingston dated 3 October 2019. The substance of that affidavit was to the effect that the applicant contends that the decision which is the subject of this application is a version of the decision of the Tribunal dated 2 January 2018. On 3 January 2018, the Tribunal forwarded to the applicant and his solicitor a copy of a document which purported to be the decision in this matter, dated 2 January 2018. That copy of the purported decision differs in some respects to the version contained in the Court Book.[2] In particular, the decision in the Court Book has 35 paragraphs as opposed to the decision provided to the applicant which has 29 paragraphs. Further, a finding at paragraph 10 of the copy provided to the applicant to the effect that he had entered Australia unlawfully is omitted from the decision record in the Court Book, and finally, a finding at paragraph 21 of the copy provided to the applicant to the effect that there is no documentary evidence to support the sponsor’s assertion that the couple had purchased a house is also omitted from the decision record in the Court Book.
[2] Court Book (‘CB’) 664-668.
In the submission of the applicant, the Tribunal had no power to vary the decision after the day and time it was made.[3] Further, the applicant submitted that although the copy of the decision provided to the applicant did not record the time and date it was made in accordance with the Act, by virtue of the operation of s 368(4)(a) of the Act,[4] the validity of the decision as provided to the applicant was not affected.
[3] Migration Act 1958 (Cth), s 368(2A).
[4] Section 368(1)(f).
I do not accept the submission of the applicant in that regard. As submitted by the first respondent, the decision in the Court Book is stamped and signed by the Tribunal member. The member also signed a certification indicating, “This is the Tribunal’s statement of decision and reasons”. That statement records that it was made on 2 January 2018 at 4:19pm.[5] The copy of the decision sent to the applicant was emailed on 3 January 2018 at 11:49am.[6] The first respondent relied on an affidavit filed on 7 November 2019 which details the procedure followed by Tribunal members and officers when finalising and distributing decisions and further what occurred in this matter.[7] The deponent of that affidavit is the Registry Manager for the Adelaide Registry of the Tribunal. In preparing his affidavit he reviewed entries on the ‘CaseMate’ system which is the case management system used by the Tribunal in its Migration and Refugee Division. Tribunal members generally prepare their draft decisions using MS Word. At the time a decision is made, the Tribunal member places a ‘certification block’ on the front page of the Word document. The ‘certification block’ includes the time and date of the decision and the members’ signature. That signed and dated document is then uploaded to the ‘CaseMate’ system by the Tribunal member as the decision record. Only the Tribunal member has access to and can attach the certification block with their signature to a decision. Once a decision has been entered onto the system further data entries are made by the Tribunal member to record that a decision has been made. Once this is done, two paper copies of the signed decision record are then printed and placed on the Department file and the Tribunal paper file. As part of the standard procedure, once a decision has been finalised an officer of the Tribunal should check that the decision record in CaseMate contains the certification block date and time and that the copy of the decision record on the paper file matches the electronic copy in CaseMate. This having occurred, the Tribunal member notifies the applicant of the decision and sends them a copy of the decision record. If email notification is used, a PDF version of the decision record as it is in CaseMate is created and attached to the email.
[5] CB 664.
[6] Affidavit, Christopher Levingston, dated 3 October 2019, Annexure A.
[7] Affidavit, Ian Charles Phillips, dated 7 November 2019.
A review of the CaseMate system entries relating to this matter revealed that there is a single document recorded as the decision record in CaseMate. That version does not contain the certification. There is no other version of the decision record in CaseMate that includes the certification. In January 2018, a Tribunal officer in the Adelaide Registry prepared the decision notification letter and dispatched it together with the decision record from the CaseMate system. That includes a decision record which does contain the certification and in this case recorded the date and time of the decision as 2 January 2018 at 4:19pm. The hypothesis of the Registry Manager is that the Tribunal member did not upload the decision record containing the certification block into CaseMate but did print it and place it on the Tribunal paper file and the Department paper file. It seems that the Tribunal officer made an administrative error by not confirming that the decision record in CaseMate was the same as the printed version on the paper file and consequently, the review applicant received the unsigned (and incomplete) version of the decision record. The casemate system records that the Department file was dispatched to the Department on 4 January 2018 inclusive of the decision record that contained the certification block.
On the basis of the above, it would seem that the applicant and his solicitor were inadvertently sent what could be regarded as a draft of the ultimate decision. That would explain the discrepancy between the copy received by the applicant and the copy in the Court Book.
By virtue of s 368(1)(f) of the Act, when the Tribunal makes a written decision on review it must make a ‘written statement’ that records the day and time the statement is made. Section 368(2) provides that a decision on review (other than an oral decision) is taken to have been made by the making of the written statement and on the day and at the time the written statement is made. As I have already noted, s 368(2A) states that the Tribunal has no power to vary or revoke a decision to which s 368(2) applies after the date and time on which the statement is made.
The purported decision sent to the applicant and his solicitor is not the decision of the Tribunal in this matter. There is only one decision in this matter, it is that which is contained in the Court Book and which was signed and stamped in accordance with the legislative requirements set out above. It is the making of the written statement which brings the decision of the Tribunal into effect and renders it functus officio from that point. That process of finalisation is not dependent on when the decision is notified or communicated to the review applicant.[8]
[8] Section 368(4); Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1887 [7]; Chhor v Minister for Immigration and Border Protection [2017] FCCA 2135 [19]-[22].
Legislative framework
At the relevant time the criteria for the grant of the visa were set out in subclass 820 of the Migration Regulations 1994 (Cth) (‘the Regulations’). In the context of this matter the relevant criteria are found in cl 820.211:
820.211—Criteria to be satisfied at time of application
820.211
(1)The applicant:
(a)is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
(2)An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c)the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A)has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B)satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
The effect of the above is that the applicant had to satisfy criteria 3001, 3003 and 3004 in Schedule 3 to the Regulations. If he was unable to meet the Schedule 3 criteria then the Minister must be satisfied that there were compelling reasons for waiving those prerequisites.
Background and Tribunal decision
The applicant is an Albanian citizen. He arrived in Australia in June 2015 on a tourist visa with a passport in the name Marsel Gjoka. In August 2000 he filed an application for a protection visa but withdrew the application approximately 12 month later. Prior to withdrawing the protection visa application he applied for the subject visa on the basis of his relationship with the sponsor. He and the sponsor married on 16 November 2016. At the time of the hearing the sponsor was expecting their first child. A delegate of the first respondent refused to grant the visa to the applicant on 14 December 2016. The delegate concluded that the applicant did not satisfy cl 820.221(2)(d) of Schedule 2 to the Regulations. The effect of this decision was that the delegate found that the applicant had not applied for the visa within 28 days of holding a substantive visa and was not satisfied that there were compelling reasons to waive the Schedule 3 criteria.
The Tribunal invited the applicant to provide updated information with respect to whether he met the Schedule 3 criteria and whether there were compelling reasons for not applying those criteria.
Prior to the hearing, a representative for the applicant presented submissions and supporting documentation which included a declaration from both the applicant and the sponsor, a certificate of marriage, and letters from both the sponsor’s general practitioner and a psychologist. The hearing took place on 21 September 2017. The delegate’s decision was affirmed by the Tribunal on 2 January 2018. The Tribunal issued a direction pursuant to s 378(1) of the Act prohibiting the publication of the Tribunal’s decision and statement of reasons on the basis that publication would unreasonably reveal information about the applicant’s previous protection visa application or any potential future protection visa application and as such was not in the public interest.
The Tribunal correctly identified the matter in issue as being whether the applicant met the relevant Schedule 3 criteria and if he did not, whether there were compelling reasons to waive them. It concluded that it was not necessary to determine the question of whether or not the applicant was an unlawful entrant to this country on the basis of his false passport because irrespective of the lawfulness or otherwise of his entry, he could not meet the requirements of cl 3001(2)(c)(i) and (iii) due to the fact that the last day he held a substantive visa was 2 September 2015. He was accordingly outside the 28 day period. Having made that finding the Tribunal proceeded to consider whether there were compelling reasons to waive the criteria.
Having noted some relevant authorities as to the meaning and effect of the undefined expression ‘compelling reasons’, the Tribunal proceeded to summarise the evidence and claims of the applicant.[9] It then concluded:
“I am mindful of the impending birth of a baby and the Convention on the rights of the child. However I do not consider refusing the visa will, of itself, result in the baby being separated from his or her father. Mrs Hasani can relocate to Albania or, if Mr Hasani considers he cannot return to Albania he can apply for a protection visa.
I have also carefully considered the submission that this is now a long-standing relationship and this amounts to compelling circumstances not to apply the Schedule 3 criteria. Mr and Mrs Hasani started living together approximately two months before their marriage in on (sic) 16th of September 2016. While Mr and Mrs Hasani may have been in a relationship from an earlier point in time, I do not consider this establishes a long standing spouse or de facto relationship. In the circumstances of this case, and the relatively recent marriage, I am not satisfied this amounts to compelling circumstances.
Having considered all the information before me I am not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl. 820.211(2)(d)(ii).
There is nothing before me to indicate Mr Hasani would otherwise meet cl. 820.211. As Mr Hasani does not meet cl. 820.211 he does not satisfy the criteria for the grant of the visa.”[10]
[9] CB 666-668, [16]-[29].
[10] CB 668, [30]-[34].
Consideration
Noting the finding I have made above that the decision of the Tribunal is that contained in the Court Book, it is not necessary to deal with the submission of the applicant as to an incorrect finding about his status as an unlawful entrant to this country. In any event, as the applicant himself conceded, such an error would not amount to jurisdictional error because of the finding with respect to the failure of the applicant to have applied for the visa within 28 days after the expiry date of the last substantive visa he had held.
Similarly, the applicant’s submission that the Tribunal made an erroneous finding which failed to take into account the corroborative documentary evidence before it supporting the claim as to the purchase of a house has no traction because the finding relied on was in the purported copy of the decision provided to the applicant and not the actual decision.
With respect to ground 2(a), the applicant submits that the Tribunal failed to give proper and genuine consideration to the claims compelling reasons relating to the sponsor’s extreme anxiety and depression diagnosis and the likelihood of further deterioration of those conditions if the applicant was required to leave this country. The details of that claim set out in a letter from the sponsor’s psychologist who she had seen on two occasions.[11] In the submission of the applicant, whilst the Tribunal referred to the sponsor’s mental health conditions and the potential effect of the applicant’s departure from Australia, it failed to make a specific finding as to whether those claimed reasons amounted to compelling reasons. It was submitted that those claims were serious and the failure of the Tribunal to make a specific finding demonstrated that it had failed to consider and evaluate for itself whether the sponsor’s anxiety and depression would be likely to deteriorate if the applicant was required to leave this country. That was a matter which had an obvious relevance to whether there were compelling reasons to waive the Schedule 3 criteria. The reasons disclose that the Tribunal failed to engage in an active intellectual process with respect to that aspect of the claimed compelling reasons.
[11] CB 625.
That submission picked up on a line of authorities dating from at least the judgment of Black CJ in Tickner v Chapman[12] which considered the meaning of the term ‘consider’ when a statute imposes an express obligation on a decision maker to consider a matter. His Honour observed:
“Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”[13]
[12] (1995) 57 FCR 451.
[13] Ibid, 462.
Kiefel J made similar observations:
“It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.”[14]
[14] Ibid, 495-496.
That analysis has been endorsed by numerous subsequent decisions.[15]
[15] Minister for Immigration and Citizenship v Khadgi (2010) 119 ALD 26; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 [24]-[25].
Most relevantly to these proceedings, the applicant referred the Court to the following observations of Bromberg J in MZYPZ v Minister for Immigration and Citizenship[16] which applied the principal to the criteria in cl. 820.211:
“In my view, the process required by the clause entails a duty to consider whether compelling reasons exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the tribunal was bound to take into account. To comply with the duty conferred, the tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives [the tribunal’s] genuine consideration.”[17]
[16] (2012) 127 ALD 510.
[17] Ibid [19].
In MZYPZ, his Honour was dealing with a finding by the Tribunal which effectively just adopted the finding of an earlier decision maker. The applicant had applied for a partner visa. The question in issue was the claims made by the applicant to the effect that he feared returning to Sri Lanka. He had previously made an application for a protection visa which had been refused. The Tribunal noted that matter and determined the claims of fear made before it in the following way:
“[74] … and the Tribunal finds that the applicant has made an application for a protection visa in the past and that this application was refused. Accordingly the Tribunal finds that these claims do not amount to compelling circumstances.”[18]
[18] Ibid [23].
As can be seen from the above, in that matter it was the failure of the Tribunal to apply its’ own mind to the claims before it which resulted in the finding that it had not engaged in an active intellectual process. The authorities I have referred to above establish the principle, but the application of it, in the sense of what will and will not satisfy the threshold of such an active engagement, will inevitably vary from case to case. It cannot, in my view, be reduced to a simple formula but must be determined by a fair reading of the decision as a whole. It must also be kept in mind that a Tribunal is not required to detail every aspect of its’ thought process or record minutely every finding that it makes and that nor should its’ reasoning be subjected to a level of scrutiny that brings with it “an eye keenly attuned to the perception of error”.[19]
[19] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
In this matter, as I have noted, the Tribunal reminded itself of the relevant authorities with respect to the term ‘compelling reasons’.[20] In particular, it referred to the following passage in Babicci v Minister for Immigration Multicultural and Indigenous Affairs:[21]
“There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.”[22]
[20] CB 666, [15].
[21] (2005) 141 FCR 285.
[22] Ibid, [24].
It also noted that matters amounting to compelling reasons could arise at any time.[23] As a starting point, the Tribunal cannot be seen to have misdirected itself as to the standard of satisfaction required of it when considering whether the claims amounted to compelling reasons. It also set out briefly, but correctly, the basis of the applicant’s claims with respect to the sponsor’s anxiety and depression. There is no reason, on a fair reading of the decision, to conclude that having identified the requisite state of satisfaction, the Tribunal did not apply that to its’ consideration of the evidence and claims as to the sponsor. To the extent that the applicant complains that there was no specific finding as to the sponsor’s anxiety and depression not amounting to ‘compelling reasons’, it is clear from the reasons that having considered all of the claims, the Tribunal made the finding that there were no ‘compelling reasons’ to waive the criteria. That finding encompassed all of the claims made.[24]
[23] Ibid; Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121.
[24] CB 668, [33].
With respect to ground 2(a) and the claim based on the wellbeing of the fetus during the sponsor’s pregnancy, the Tribunal clearly took the fact of the pregnancy into consideration.[25] The letter from the sponsor’s doctor observed that there was some concern for the wellbeing of the infant, that monitoring of the pregnancy would be required, that there may be an early delivery of the child, and that the sponsor would benefit from the support of the applicant. It ended by saying “Please can this be taken into consideration regarding his visa.”[26] In my view, this complaint fails to establish jurisdictional error for two reasons. Firstly, there is no reason to assume that, having considered and referred to much of the documentary evidence, the Tribunal did not consider the letter from the obstetrician. Had the reasons failed to mention the fact of the pregnancy, then this complaint may have had some substance. A Tribunal is not required to identify in detail every piece of information it considers or relies on. Secondly, I accept the submission of the first respondent that the claim as to the wellbeing of the infant in utero was not clearly articulated at the time of the hearing.[27] On the issue of the sponsor’s pregnancy, the written submission of the applicant’s representative said:
“Further, the Sponsor is pregnant and is expected to deliver the couple’s first child (an Australian citizen) in November of this year. (Annexure D).[28]
The significance of that fact in the life of a couple cannot be understated (sic). It is by any measure, a major life event which will give rise, inevitably to a measure of dependency both emotionally and psychologically between the parties to the relationship. I would ask the Tribunal to apply its own life experience to these factors and to duly recognise the compelling nature of these developments (Psych report at Annexure E).”[29]
[25] Ibid, [31].
[26] CB, 620.
[27] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 [58]–[60].
[28] This annexure contained the letter from the obstetrician referred to above.
[29] CB, 581.
It can be seen that the claim articulated as to the pregnancy was in general terms. It did not focus on the wellbeing of the infant prior to birth. The letter of the obstetrician is at least consistent with being simply a request made in the general terms expressed by the applicant’s representative. Having concluded that the claim with respect to the wellbeing of the infant was not clearly articulated, I am not satisfied that it was an unarticulated potential claim that was squarely raised on the materials such as to give rise to a statutory duty to consider it.[30]
[30] NABE op cit, [58]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 [19].
Finally, even if I was satisfied that the claim as to the wellbeing of the infant had been clearly articulated and not considered, I would still decline to grant the relief sought. The child was to be born less than two months after the date of the Tribunal hearing and prior to the date on which the decision was made. Any ‘compelling reason’ arising from the wellbeing of the infant in utero had logically ceased to be operative by the date of the decision. I am not satisfied that even if there had been an error that it would have been material. No evidence was produced by the applicant on the question of the materiality of that asserted error, such as a medical opinion establishing that the child, now born, had an ongoing illness, disability or infirmity linked to the expressed concerns of the obstetrician.[31] There is nothing to suggest that the wellbeing of the infant was anything more than a passing concern. To grant relief in such circumstances would lack utility.
[31] Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38, [45] – [46].
I have already noted that the complaint in ground 2(c) does not arise because of the finding I have made as to which version of the reasons was the operative decision. I note in any event that the fact that the comment about the applicant not having presented any documentary evidence as to the purchase of a house was deleted from the operative decision suggests that the Tribunal was aware of the evidence presented.
I dismiss the application and make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 7 October 2020
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