Hassan v Minister for Immigration
[2020] FCCA 2385
•31 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASSAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2385 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – where applicant applied for partner visa 5 years after expiration of last substantive visa – whether compelling reasons existed under cl.820.211(2)(d)(ii) for waiving Schedule 3 criteria - whether Tribunal took into account an irrelevant consideration – whether Tribunal fell into jurisdictional error by considering genuineness of the relationship when assessing compelling reasons – where Tribunal found applicant motivated to enter relationship for visa reasons – whether Tribunal restricted itself to determining relationship as at commencement of relationship, and not on a contemporary basis as well – whether Tribunal’s consideration contrary to authority – jurisdictional error established - application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.65, s.357A, s.360. |
| Cases cited: Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593 Choi v Minister for Immigration and Border Protection [2018] FCA 291 El Masri v Minister for Immigration & Anor [2018] FCCA 1232 Minister for Aboriginal Affairs v Peko-WallsendLtd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 |
| Applicant: | MUHAMMAD HASSAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1233 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 5 September 2019 |
| Date of Last Submission: | 15 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones on a direct access basis |
| Solicitors for the Respondents: | Ms M Donald, Sparke Helmore |
ORDERS
Amends the title of the first respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Grants leave to the applicant to amend the Application to include ground 3 substantially in the form accompanying the applicant’s supplementary submissions dated 19 March 2020, as follows:
“3. In the alternative to Ground 2, in the event that the Court finds that the genuineness question was not irrelevant to the waiver of the Schedule 3 criterion, and could permissibly be taken into account by the Tribunal for that purpose, the Tribunal nonetheless failed to have proper regard to the genuineness question.
a.In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 at [2], [18] and [54], the Full Court held that matters such as the genuineness question should be assessed by reference to all circumstances up until the time of the decision of the Tribunal and should not be restricted to circumstances at an earlier point in the administrative process.
b.The Tribunal at paragraph 28 of its decision found that the Applicant “committed to a relationship with the sponsor with the primary intention of facilitating a migration outcome from onshore”.
c.Assuming the Tribunal’s finding of ulterior motive was reasonably open to it, the Tribunal nonetheless confined itself to when the Applicant embarked upon or became settled in the relationship, rather than the genuineness of the relationship at the current time.
d.The Tribunal thereby failed to determine the genuineness question on a contemporary as well as a past basis and did not consider in accordance with Waensila whether a relationship, though beginning with an ulterior motive, had matured into a genuine attachment.”
and to rely on that ground.
The Application (so amended) be allowed.
A writ of certiorari issue removing the record of the decision of the second respondent, the Administrative Appeals Tribunal, made on 4 April 2018 into this Court for the purpose of quashing it.
A writ of mandamus issue requiring the Administrative Appeals Tribunal to re-determine the applicant’s application for review of the decision of a delegate of the first respondent dated 16 February 2017 according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1233 of 2018
| MUHAMMAD HASSAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a Decision of the Administrative Appeals Tribunal dated 4 April 2018, affirming a decision of a Delegate of the First Respondent, the Minister for Home Affairs (now known as the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”), dated 16 February 2017 to refuse to grant the Applicant, Mr Muhammad Hassan, a Partner (Temporary) (Class UK) Visa under s.65 of the Act.
Background
Mr Hassan, born in 1981, is a citizen of Pakistan. Mr Hassan arrived in Australia in 2010 as the holder of a student visa which ceased on 26 January 2011. That student visa was the last substantive visa Mr Hassan held. On 19 September 2016, some five years later, Mr Hassan applied for the Visa.
The criteria for the Visa are set out in subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth). In order to be granted a subclass 820 visa Mr Hassan was required to demonstrate that he met, as at the date of the application for the visa, sub‑cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, and thus Mr Hassan needed to satisfy criteria 3001, 3003 and 3004 (where applicable) of Schedule 3 to the Regulations. Alternatively, Mr Hassan, was required to satisfy the Minister (for present purposes, the Tribunal, exercising the Minister’s discretion) that there are compelling reasons not to apply those criteria.
In order to meet Schedule 3 criterion 3001, Mr Hassan was required to apply for his Visa within 28 days of the date of expiration of his last substantive visa. As the day he last held a substantive visa was more than five years earlier, it is incontrovertible that Mr Hassan did not satisfy criterion 3001. As a result, the Tribunal had to consider whether or not it was satisfied that there are “compelling reasons” for not applying the requirement that Mr Hassan apply for the Visa within 28 days of his last substantive visa.
The effect of the Tribunal being so satisfied and waiving compliance with the Schedule 3 criteria would have been that Mr Hassan would not have to leave Australia in order to reapply for a partner visa. The Tribunal was not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. It concluded that Mr Hassan did not meet sub‑cl.820.211(2)(d)(ii), and affirmed the decision of the Delegate.
On 1 May 2018, Mr Hassan applied to this Court for judicial review of the Tribunal’s Decision. At hearing before me, Mr Hassan was represented by Mr Jones of Counsel, and the Minister was represented by Ms Donald, solicitor.
Relevant legislative provisions
In a previous decision I delivered, El Masri v Minister for Immigration & Anor [2018] FCCA 1232, I set out the relevant legislative provisions at [4] to [7]. I restate what I there set out.
Part 8.20 of the Regulations contains provisions concerning the requirements for partner visas. The primary criteria for the particular partner visa sought by Mr Hassan are set out in cl.820.2. Applicable to the application before this Court are the criteria set out in sub-cl.820.211, which provides, relevantly:
820.21—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), (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
…; 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 Minister has a discretionary power to be satisfied that the specified criteria does not apply. It is a power, where the Minister is satisfied that there are compelling reasons for doing so, to effect the result that the visa applicant is not required to meet those criteria which would otherwise be required to be satisfied at the time of the application: see Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121, per Robertson J at [19].
The circumstances that may constitute “compelling reasons” for waiver of the Schedule 3 criteria are not temporally limited: the Minister at the time of making his or her decision is not prevented from taking into account in assessing “compelling reasons” the circumstances which prevail at the time of their decision: Waensila, per Dowsett J at [2], Robertson J at [18], and Griffiths J at [54].
The Tribunal proceeding and decision
Before the Tribunal, as before the Delegate, Mr Hassan was represented by a lawyer, and registered migration agent. The Tribunal at [4] of its Decision explained that Mr Hassan appeared before the Tribunal on 22 March 2018 to give evidence, and present arguments, and that the Tribunal also received oral evidence from the sponsor, Mrs Hassan, and witnesses who the hearing record identifies as being Mrs Hassan’s father and a friend. The Tribunal hearing was conducted with the assistance of an interpreter in Urdu and English languages.
Having found that Mr Hassan did not meet criterion 3001(at [12]‑[15]), the Tribunal referred to sub‑cl. 820.211(2)(d)(ii), and stated that it is required to consider whether there are compelling reasons for not applying the criterion.
At [16] and [17], the Tribunal summarised the law relevant to compelling reasons in the context of criterion 3001. It noted that such reasons must be “sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”, and referring to Waensila observed that circumstances which constitute compelling reasons can arise at any time up until the Tribunal’s decision.
Under the heading “Compelling Reasons”, from [18] to [31], the Tribunal set out the matters raised in the Tribunal hearing that Mr Hassan, Mrs Hassan and the witnesses variously proffered as compelling reasons for the Tribunal to apply the waiver. The Tribunal referred to submissions and evidence made by, and on behalf of, Mr Hassan.
Commencing at [18], the Tribunal stated:
The applicant was asked to provide what he considered as compelling reasons for the Tribunal to apply the waiver. He said the biggest reason was the care he provides for his wife, the sponsor.
The Tribunal recorded that Mr Hassan referred to a range of Mrs Hassan’s medical and physical disorders, and treatments, and that he acted as a carer for her. The Tribunal recognised the medical evidence that had been previously provided to the Delegate, and accepted the evidence that Mrs Hassan suffered from a range of medical issues. The Tribunal accepted that Mr Hassan assisted Mrs Hassan with elements of her care. The Tribunal noted, however, that Mrs Hassan has faced the bulk of these medical issues since prior to meeting Mr Hassan.
The Tribunal considered that Mrs Hassan was able to receive assistance and support from her family prior to meeting Mr Hassan, and was not convinced that she would not be able to do so in the future “whilst the applicant lodges an offshore partner visa”. The Tribunal found that it did not consider the care Mr Hassan claims to provide represents a compelling reason for it to exercise the waiver (at [18]).
Mr Hassan claimed that although Mrs Hassan had family support living locally there had been a “clash” in the family, and that Mr Hassan would be the only one that could look after the sponsor. The Tribunal considered the evidence, noted that Mrs Hassan’s sister lived on the same street as her, and that the two households did a great deal together, and considered that Mrs Hassan does have family support available to her locally, whilst accepting that Mrs Hassan’s sister is a working single mother of two girls and has her own family responsibilities, as does Mrs Hassan’s other siblings who live locally. Referring to Mr Hassan’s description of the large family which Mrs Hassan comes from, and the closeness of that family, the Tribunal at [19] stated:
It does not, however, accept the suggestion that the sponsor would have no regular emotional care and support around her without the applicant and he is the only one to care for her.
At [20], the Tribunal accepted that Mr Hassan enjoys a convivial relationship with Mrs Hassan’s family and saw no reason why such a positive relationship could not continue whilst Mr Hassan’s partner visa application is considered offshore. The Tribunal did not consider these relationships constitute compelling reasons to waive the Schedule 3 criteria.
The Tribunal at [21] then referred to Mr Hassan’s oral evidence about the circumstances in which Mrs Hassan’s previous husband had died, which had precipitated PTSD, and that both Mr Hassan and Mrs Hassan stated that she could not face losing a second husband. The Tribunal noted that emotional hardship can be considered a compelling factor, however it was not convinced that emotional support could only be provided when the couple reside under one roof, and was “not satisfied that the level of emotional support would necessarily be any different if the waiver was not applied”, observing “it is not unusual for couples to live separately for a period of time and that absence should not preclude the provision of strong emotional support, if this relationship was genuine”. The Tribunal stated it did not consider these circumstances as justifying waiver.
At [22], the Tribunal described the evidence Mrs Hassan gave to the Tribunal about her health problems, and the oral evidence given by her friend. The Tribunal recorded that Mrs Hassan said Mr Hassan plays a very significant role in her life. The Tribunal said it:
…has a great deal of respect for the sponsor and was particularly impressed with her candour and her courage in facing a range of debilitating and distressing medical conditions.
Referring to the correspondence submitted by Mrs Hassan’s medical professionals, the Tribunal noted that there was no evidence of the type or extent of support Mr Hassan provides Mrs Hassan, and that neither medical practitioner in their correspondence had referred to the pressing and compelling need for Mr Hassan to remain in Australia to provide care and support to Mrs Hassan. Whilst accepting that Mrs Hassan and Mr Hassan would each prefer he was present in Australia, and recognising Mrs Hassan’s statement that she needs his support, the Tribunal did not, however, on the specific evidence before it, consider these to be compelling reasons to waive the Schedule 3 criteria requirements (at [22]).
At [23], the Tribunal addressed Mr Hassan’s employment, which Mr Hassan submitted was a further compelling reason, and his provision of financial support. The Tribunal noted, however, that Mr Hassan had only been working for the last year, and that costs, such as the wedding, had been paid by Mrs Hassan’s parents. The Tribunal expressed the view that the family will continue to provide her with support when necessary, and referred to a range of government payments available to assist her whilst Mr Hassan was offshore and beyond. The Tribunal did not consider any temporary financial hardship represented a compelling reason to exercise the waiver.
The Tribunal at [24] then set out Mr Hassan’s reference to his own health issues as representing a compelling reason for waiver and noted that no evidence from any doctor, surgeon or specialist had been provided confirming his diagnosis of Meniere’s disease, and that there was no evidence stating he was required to remain in Australia to undertake treatment for any such disorder. The Tribunal did not accept that Mr Hassan could not receive treatment in Pakistan, and did not consider his own health issues as a compelling reason to waive the Schedule 3 criteria.
At [25], the Tribunal referred to Mr Hassan’s intimation that it would be very difficult for Mrs Hassan to travel to Pakistan with him whilst an offshore partner visa application was processed. The Tribunal recorded Mr Hassan’s evidence that he would definitely return to Australia if forced to reapply for a partner visa offshore “as his life was now here in Australia” and that Mrs Hassan would wait for him. The Tribunal accepted it would be extremely difficult for Mrs Hassan to travel to Pakistan and remain with Mr Hassan while he lodged an offshore partner visa application, and that such travel was not plausible. The Tribunal did not consider a temporary physical absence between the parties whilst Mr Hassan lodges an offshore partner visa application represents a compelling reason for the exercise of the waiver.
At [26], the Tribunal then had regard to their expressed desire to sponsor children, noting that a desire for children is common to many relationships. The Tribunal did not consider that desire to be a compelling reason to exercise the waiver, stating:
Importantly the applicant has not satisfied the Tribunal that the ability to adopt a child would not be available to he and the sponsor unless the waiver is applied. The Tribunal is mindful that if this relationship is genuine, the applicant will be able to apply for a Partner visa offshore and any period of separation is likely to be temporary.
In such circumstances, the Tribunal did not consider the couple’s plans to foster children represent compelling reasons for the waiver.
At [27], the Tribunal recorded that Mr Hassan’s representative drew the Tribunal’s attention to the joint bank statements of the parties, and their current financial situation, and the representative’s submission that the costs of returning offshore, and the new visa costs for the lodgement of an offshore partner visa, would be prohibitive. The Tribunal accepted that making such an application involves a degree of financial sacrifice for both parties, and may necessitate Mr and Mrs Hassan having to adjust their home finances, and does represent a financial burden for them. The Tribunal observed, however, this is not an unusual situation for many people applying for a range of visas, and stated:
The Tribunal does not consider the situation as outlined above by the applicant and sponsor represents a compelling reason for a waiver of the Schedule 3 criteria.
Mr Jones, counsel for Mr Hassan, draws attention to [28] of the Tribunal’s decision as giving rise to jurisdictional error. Paragraph [28] is as follows:
The delinquent visa history of the applicant was discussed by the Tribunal. The Tribunal enquired of the applicant as to why he never approached the Department about his visa status and instead allowed the matter to drift and remain unlawful for over five years. The applicant said he was fearful that he would be detained and expelled from Australia. He said he had concerns about his family in Pakistan at that time and circumstances had generally been outside his control. He said he was sorry and now wanted to do the right thing. It was claimed by both the sponsor and the applicant that the sponsor had been open about his visa issues and his unlawful status when the relationship commenced between the parties. The sponsor’s father [name redacted] and her friend [name redacted] similarly in oral evidence said they never had any concerns about the relationship from a migration perspective. Despite the commentary of the sponsor, the sponsor’s father and the sponsor’s friend, the Tribunal has significant concerns about the veracity of the claims of the applicant concerning the relationship. The applicant remained unlawful in Australia for over five years. The Tribunal in the hearing raised his previous relationship. He married [name redacted] in June 2014 and divorced her in July 2016 - almost a year after he met the applicant online in September 2015, met her in November 2015 and immediately began a committed relationship with her. The applicant has claimed his former wife was not loyal to the marriage. Based upon the evidence before the Tribunal, the Tribunal considers the applicant committed to a relationship with the sponsor with the primary intention of facilitating a migration outcome from onshore. The Tribunal notes that it is not the intention of Schedule 3 to facilitate those that have manipulated their circumstances to enable a further visa outcome from onshore.(Emphasis added).
At the hearing Mr Jones emphasised the last two sentences above, and in particular the ultimate sentence.
The Tribunal concluded at [29] as follows:
The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, the Tribunal is 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).
The Tribunal then affirmed the decision of the Delegate.
Ground of Review
In his application for judicial review Mr Hassan raised two grounds of judicial review. Before me at hearing, Mr Jones, counsel for Mr Hassan, properly conceded in light of the Minister’s submissions that Mr Hassan could not press ground 1. The sole ground of review before me at the hearing was ground 2.
As set out in the Application, ground 2 is as follows (without alteration):
The Tribunal made a jurisdictional error by taking into account an irrelevant consideration.
Particulars
a.The Tribunal had regard in its decision to whether or not the relationship of the Applicant with the sponsoring partner was genuine ("genuineness question").
b.Taking into account the subject matter, scope and purpose of the statutory provisions being applied by the Tribunal in accordance with Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, the genuineness question was irrelevant to whether or not the Schedule 3 criterion ought to be waived;
c.The genuineness question was instead relevant to, in the event that the Schedule 3 criterion was waived, whether the Applicant's application for the visa ought to succeed;
d.By impermissibly considering the genuineness question at the anterior stage of the Schedule 3 criterion, the Tribunal thereby erred.
In his written submissions, Mr Jones has summarised ground 2 as follows:
The Tribunal took into account an irrelevant consideration, as the genuineness of the Applicant’s relationship with the sponsor was not material to whether or not the waiver power ought to be exercised.
Parties’ submissions in this Court
Submissions on behalf of Mr Hassan
Mr Jones submitted that the genuineness of the relationship (considered by the Tribunal at [28] of its decision) is excluded from the Minister’s (and thus the Tribunal’s) consideration of whether there are compelling reasons for not applying criterion 3001. Mr Jones submitted that the consideration whether to apply the waiver is a threshold, or gateway. The question of genuineness can arise in lieu of, or after, the question of the Schedule 3 criteria, but once the Tribunal enters the domain of deciding, at least potentially, to dispose of the case by reference to Schedule 3 and by reference to an absence of compelling reasons for not applying Schedule 3, then it is bound by the limits of that exercise, and must not confuse that task with the separate task of deciding whether there is a genuine relationship.
Mr Jones submitted that it is clear from the Tribunal’s reasons at [28], and the cumulative finding of non‑satisfaction that there are compelling reasons for Schedule 3 purposes at [29], that the Tribunal’s finding at [28] that there was a lack of a genuine relationship cannot be excluded from playing a part in the Tribunal’s cumulative state of non-satisfaction.
In contrast to what he described as the Tribunal’s “bald” finding at [28], Mr Jones pointed to the Tribunal’s equivocation in the context of the other reasons that it considered, which left the question of genuineness for separate consideration to its consideration whether there are compelling reasons not to apply the Schedule 3 criteria (e.g., at [26] of the decision, see above at [26]).
Mr Jones urges the Court as a matter of principle to follow the decision of Phipps FM in Monakova v Minister for Immigration [2006] FMCA 849 at [28]:
The "compelling reasons for not applying those criteria" must be reasons which are relevant to the purpose of the criteria. They must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia. To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration.
In Monakova, the Migration Review Tribunal had taken into account that the refusal of the spouse visa application would not result in the enforced separation of the applicant and her spouse as she held a bridging visa and was in the queue awaiting the processing of her application for an aged parent visa.
Phipps FM held the fact that the applicant could remain lawfully in Australia until the Department completes the processing of her application for an aged parent visa was irrelevant to whether she should be permitted to make an application for a spouse visa in Australia. In concluding that that Tribunal had taken into account an irrelevant consideration, Phipps FM observed (at [27]) of the purpose of criteria 3001, 3003, and 3004 as follows:
They set out the criteria which, if satisfied, permit a person to make an application for a spouse visa in Australia who, otherwise, would have to make the application from outside Australia. The purpose is not to permit a person to remain in Australia.
Relying on Monakova, Mr Jones submitted that the Tribunal, in evaluating the evidence of circumstances said to constitute compelling reasons, should bear in mind the purpose of the criterion (being criterion 3001), which he submitted is to permit a person to remain in Australia when applying for the visa, and to not have regard to matters which are irrelevant to that purpose.
Mr Jones submitted that this understanding of Monakova is not displaced by the Full Court’s decision in Waensila confirming the temporal breadth and flexibility of the waiver power.
Observing that what will constitute an irrelevant consideration is to be determined by the subject-matter, scope and purpose of the statute (per Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24 at 40, referenced in ground 2, at [32] above (and see [50] below), Mr Jones urged upon me that the focus of the decision-maker’s consideration of compelling reasons is relief from the hardship that would otherwise arise if the Schedule 3 criteria were enforced. He submitted that the purpose of the power being to enable Mr Hassan to apply for the Visa onshore, whether the relationship is genuine is irrelevant to the consideration of whether there are compelling reasons to waive criterion 3001.
Mr Jones submitted that it is only after the waiver of power is determined, and only if it were determined in favour of Mr Hassan, that the application, “…would be considered on the merits while the Applicant remains onshore.” Mr Jones accepts that at that point, the genuineness of the couple’s relationship will undoubtedly be relevant to the merits of Mr Hassan’s case for the Visa once that case arises for consideration, be it onshore or offshore.
In the course of oral submissions, responding to Ms Donald’s reliance on Allsop CJ’s decision in Choi v Minister for Immigration and Border Protection [2018] FCA 291, Mr Jones conceded that “in deciding whether a relationship has some particular aspect leading to hardship and constituting a compelling reason, it’s incidental, or can be incidental, to that exercise for the Tribunal to find an absence of compelling reason on the ground that the relationship isn’t genuine”. However, he submitted, the Tribunal did not so limit its finding at [28]. Rather, the strength of its statement suggests that it was a matter of significance relied on by the Tribunal. As to materiality, the statement at [28] was not an afterthought or grace note, but a consideration within its mind and potentially altering of the result in the event of a remittal.
Submissions on behalf of the Minister
Ms Donald submitted, first, that the Tribunal considered the genuineness of the relationship in the context of interrogating and responding to the matters raised by Mr Hassan as compelling reasons to waive compliance with the Schedule 3 criteria. In positing the circumstance of the relationship as a compelling reason, Mr Hassan put the genuineness of the relationship in issue on the question of waiver.
She referred in particular to the matters set out in letter dated 29 November 2016 (with attachments) submitted by Mr Hassan’s representative to the Delegate, which was also part of the evidence before the Tribunal. In that letter, Mr Hassan’s representative first referred to Waensila, submitted that Mr Hassan’s “circumstances should be considered as compelling reasons for granting the [V]isa”, and then addressed a number of circumstances. The first circumstance raised by the representative was Mr Hassan’s relationship with Mrs Hassan, as follows: “The applicant was in a relationship with his current wife in November 2015 and they married on [date] October 2016 after they registered their relationship on [date] August 2016.”
The representative then summarised in the letter Mrs Hassan’s medical condition, requirement for ongoing care, and emotional support, Mr Hassan’s trusted position as carer, her dependency and shared mutual life, and the adverse consequences for Mrs Hassan’s medical conditions and position should Mr Hassan not be granted the Visa, all of which circumstances were proffered as existing compelling reasons why the Schedule 3 criteria does not apply. The representative referred to, and the letter attached, medical reports, a letter from a hospital, and a statement from Mr Hassan. The Tribunal considered and addressed each of the matters raised by Mr Hassan.
Ms Donald referred to Allsop CJ’s statement in Choi at [34]:
…from a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Sch 3 criteria. This often means emphasising the hardship that would result (to the applicant, sponsor, or third parties) if the waiver is not granted.
Ms Donald submitted that the genuineness of the relationship is an element of a partner visa: one of the criteria for the grant of a partner visa is that the applicant is the spouse or de facto partner of the sponsoring partner (see cl. 801.221(2)(c), set out at [8] above), and the definitions of “de facto partner” and “spouse” provided for the Act require the relationship between parties to be “genuine and continuing” (see s.5CB and s.5F of the Act). It followed, Ms Donald submitted, because the genuineness of the relationship is an element of a partner visa, by implication there is an expectation that a relationship be genuine. Accordingly, the Tribunal is not prevented from considering the genuineness of the relationship when assessing whether there are compelling reasons for the waiver of the Schedule 3 criteria, and genuineness of a relationship is not an irrelevant factor.
Consideration of ground 2
In Peko‑Wallsend at 40, Mason J summarised the test of irrelevant consideration as follows “in the context of judicial review on the ground of taking into account irrelevant considerations … where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.”
The parties are in agreement that the scope of “compelling reasons” is broad.
In Waensila the purpose of the Minister’s discretion was remarked on as being to give the Minister greater flexibility if and when compelling circumstances arise: see Dowsett J at [2], Robertson J at [18], and Griffiths J at [26], and at [54].
Justice Dowsett at [2], agreeing with Robertson and Griffiths JJ, observed that the Minister’s power is designed to provide flexibility in the operation of the legislative and regulatory scheme, and stated: “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.”
At [18], Robertson J, accepting that the purpose of the Minister’s discretion in cl.820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise, and, for example, to avoid hardship to the visa applicant, said: “then, to my mind, it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Sch 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing “compelling reasons”, the circumstances which prevail at that time.”
Justice Griffiths at [51] proceeded assuming that the Minister’s submission that cl.820.211(1)(b) was a single criterion was correct, but observed that it nevertheless has several constituent elements, one of which was subs (2) (set out at [8] above). His Honour observed that the waiver power contained in cl.820.211(2)(d) was not itself a criterion: “Rather, it is properly characterised as a power to waive or dispense with what otherwise is a requirement which forms part of the criterion in cl.820.211(1)(b).”: Waensila, at [52].
His Honour at [53], stated that the occasion for considering whether or not to exercise the waiver power will arise when the Minister (or his or her delegate) comes to consider the exercise of the power under s.65 of the Act. At [54], his Honour stated of the waiver power:
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.
I consider that their Honours’ consideration in Waensila of the power to waive or dispense with the Schedule 3 criteria reveals that the relevant subject matter is the partner visa program provided by the Act, the scope of “compelling reasons” is the state of satisfaction, which scope is broad, and the purpose of the Minister’s discretion is (as identified in Waensila) to afford the Minister greater flexibility in the circumstances where an applicant does not satisfy the Schedule 3 requirements.
I do not accept that the purpose of criterion 3001 being to permit an applicant to apply for a partner visa onshore, the genuineness of an applicant and their sponsor’s relationship is irrelevant, and so is precluded from being a circumstance that the Minister may take into account when considering whether there are compelling reasons for not applying the Schedule 3 criteria 3001, 3003 and 3004. The reasons of the Full Court in Waensila make clear that the Minister’s discretion is not limited to circumstances existing at the date of application for the visa. Their Honours’ discussions (Dowsett J at [2], Robertson J at [18], and Griffiths J at [52] - [58]) do not support Mr Jones’ argument that the genuineness of the relationship is irrelevant to the circumstances that the decision maker may take into account when consideration is being given whether or not to exercise the waiver power to justify dispensing with the obligation of an applicant to satisfy the Schedule 3 criteria.
Guided by the Full Court’s consideration in Waensila, including in the passages to which I have referred above, I consider that it would be inconsistent with the breadth afforded by such flexibility if the circumstances which the Minister was able to take into account were limited as counsel for Mr Hassan contends.
Further, as the structure of sub-clauses 820.211(1)(b) and (2) proposes, elements (a), (c) and (d) of subcl (2) must each and all be satisfied. There is no warrant to excise the genuineness of the relationship of the applicant for a partner visa and their sponsor from the matters that the Minister may take into account in their consideration of whether there are compelling reasons at the time of the consideration to dispense with criterion 3001 (that is, when addressing the requirements of subcl.820.211(2)(d)(ii)), or to address subcl (2)(d)(ii) as a threshold, or anterior requirement to the others.
I consider that clear words are required which would have the effect of confining the Minister’s consideration of compelling reasons by rendering irrelevant to that consideration the genuineness of the relationship, and requiring that consideration be separate from and anterior to the Minister’s consideration of each other matter. There are no such clear words.
I also accept Ms Donald’s submission that since one of the criteria for the grant of a partner visa is that the applicant be the spouse or de facto partner of the applicant, and the definitions of those terms in the Act require the parties’ relationship to be genuine and continuing, consideration of the genuineness of the relationship is not an irrelevant consideration.
That in Choi Allsop CJ at [34] stated that since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Schedule 3 criteria, does not mean that genuineness is irrelevant to the Minister’s consideration, except in some incidental manner as conceded by Mr Jones, but rather that genuineness of the relationship generally will be insufficient to be compelling reasons.
I do not accept Mr Jones’ contention that, following Monakova, the purpose of criterion 3001 being to permit an applicant to apply for a partner visa onshore, the genuineness of an applicant and their sponsor’s relationship is irrelevant, and so is precluded from being a circumstance that the Minister may take into account when considering whether there are compelling reasons for not applying the Schedule 3 criteria 3001, 3003 and 3004. Waensila does not support such a contention.
Further, the Tribunal in the decision with which the Court in Monakova was concerned had taken into account circumstances that were irrelevant to the application for a spousal visa, whether applied for onshore or offshore, namely, that the applicant could remain in Australia while the Department processed her application for an aged parent visa, a different subject matter. Phipps FM’s construction of the purpose of the criterion 3001 understood in this light, the genuineness of the spousal relationship is not irrelevant to the waiver of that criterion.
Accordingly, in my view, it was not irrelevant for the Tribunal, in the course of considering whether compelling reasons exist, to consider the genuineness or otherwise of Mr Hassan’ and Mrs Hassan’s relationship. I have concluded that the Tribunal did not fall into jurisdictional error as claimed by ground 2.
Additional matter – further ground
After the hearing, in the course of deciding whether ground 2 was made out, I formed the preliminary view that the finding of the Tribunal at [28] is a finding of the circumstances pertaining as at the date of Mr Hassan’s entry into the relationship, and not the circumstances of the relationship as they were as at the date of the Tribunal’s Decision, which gave rise to a question whether the Tribunal thereby erred. At [28] (see above, at [29]), the Tribunal refers to Mr Hassan meeting the sponsor in November 2015, and that he:
immediately began a committed relationship with her … committed to a relationship with the sponsor …
As I did not raise this concern during the course of the hearing, I informed the parties of my identification of this possible additional ground, and my preliminary view referred to above. I invited the parties to make supplementary written submissions on whether the Tribunal considered the genuineness of Mr Hassan’s motivation entering into the relationship in 2015, and not the circumstances as pertained to the relationship at the time of the Tribunal’s decision, contrary to Waensila, and whether the Tribunal thereby fell into jurisdictional error.
Each of Mr Hassan and the Minister, by their counsel and solicitor respectively, made supplementary written submissions on this issue, Ms Donald’s submissions in answer to Mr Jones’ submissions in chief, and Mr Jones made a short submission in reply.
Within the Applicant’s supplementary submission in chief dated 19 March 2020, counsel propounded a further ground of review, which is set out in a proposed amended application on which on behalf of Mr Hassan he seeks leave to rely, as follows (without alteration):
“3. In the alternative to Ground 2, in the event that the Court finds that the genuineness question was not irrelevant to the waiver of the Schedule 3 criterion, and could permissibly be taken into account by the Tribunal for that purpose, the Tribunal nonetheless failed to have proper regard to the genuineness question.
a.In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 at [2], [18] and [54], the Full Court held that matters such as the genuineness question should be assessed by reference to all circumstances up until the time of the decision of the Tribunal and should not be restricted to circumstances at an earlier point in the administrative process.
b.The Tribunal at paragraph 28 of its decision found that the Applicant “committed to a relationship with the sponsor with the primary intention of facilitating a migration outcome from onshore”.
c.Assuming the Tribunal’s finding of ulterior motive was reasonably open to it, the Tribunal nonetheless confined itself to when the Applicant embarked upon or became settled in the relationship, rather than the genuineness of the relationship at the current time.
d.The Tribunal thereby failed to determine the genuineness question on a contemporary as well as a past basis and did not consider in accordance with Waensila whether a relationship, though beginning with an ulterior motive, had matured into a genuine attachment.”
The Minister does not oppose leave being granted to rely on the amended application, but submits the application should be dismissed, with costs. I consider it is appropriate in the circumstances to grant Mr Hassan leave to rely on the foreshadowed amended application with ground 3 as set out above.
Summary of parties’ submissions on ground 3
On behalf of Mr Hassan, Mr Jones submitted that it is tolerably clear that, under Waensila, the genuineness question cannot be determined by restriction to a particular point in time or, in other words, without regard to the circumstances of the relationship up until the time of the Tribunal’s Decision.
At [28], the Tribunal evidently made a finding as to the circumstances as at the date of entry into the relationship, or shortly thereafter. Mr Jones submitted that the Tribunal has not made a finding as to whether those circumstances have endured until the time of its decision. He makes clear (in reply) that he does not say that the Tribunal is prohibited by Waensila from considering motive at the time of entry into the relationship. Rather, he submits, the Tribunal was prevented on that authority from restricting itself to that particular point in time.
Mr Jones submits his submission does not impermissibly read the Tribunal’s decision with an eye for error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal’s meaning is plain. It finds that Mr Hassan had an ulterior motive at the outset of the relationship and says nothing about whether or not the ulterior motive has endured.
Mr Jones submits that it is far from idle to ask whether the ulterior motive might have lapsed. It is possible that a relationship begun for the wrong reasons might mature into a genuine and meaningful attachment (Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 at [64] per Kenny and Griffiths JJ). This forms part of the Tribunal’s capacity, when answering the genuineness question, to perform “an evaluation based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case” (Jian Xin Lui v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 at [23] per Conti J).
This leaves the question of materiality or the realistic possibility of a different outcome (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]). Mr Jones observes that the Tribunal relied on other matters when reaching its conclusion that it should not waive the Schedule 3 criterion. However, it plainly considered the genuineness question of sufficient importance to form part of its reasons for decision on the Schedule 3 criterion.
Furthermore, Mr Jones submits, it is plausible that the Tribunal’s perception of the ulterior motive at the earlier point in time might have coloured its perception of the weight to be accorded the relationship of Mr Hassan with the sponsor elsewhere in its analysis (see, e.g., at [18], [20], [21]). The materiality bar is not high and should not be confused with discretionary refusal of relief for futility. He submits that materiality arises in the present case.
In response the Minister submits that whether Mr Hassan contends that matters such as the genuineness question should be assessed by reference to all circumstances up until the time of the Decision, or whether it was an error for the Tribunal to consider the circumstances as at the date of entry into the relationship at all, neither formulation reveals jurisdictional error.
First, the Minister submits that the Tribunal did give consideration to whether the relationship was genuine at the time of its Decision. Ms Donald for the Minister points to, and relies on the Tribunal’s words at [21], and at [26] (see above, at [21], [27]), and submits that the first reference is forward looking, to the period Mr Hassan is offshore reapplying for a visa, and the second, to genuineness at the time of its decision. The Minister calls in aid Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593, 604, at [47]: “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.” (Minister’s emphasis).
The Minister submits that the use of the word “genuine” in the paragraphs was a reference to the current or future state of Mr Hassan’s relationship. The Minister submits that a fair reading of the Tribunal’s Decision does not permit a finding that the Tribunal failed to consider the possibility that the relationship was genuine at the date of the Decision, and to find otherwise would be to read it with an eye keenly attuned to the perception of error.
As to Waensila, the Minister submits it is authority for the proposition that the Tribunal will fall into error where in its consideration of whether to waive compliance with criterion 3001, it “refuses to consider factors on the basis that they did not exist at the time of the visa application”, referring to Robertson J at [18], and thence to [2], and [54].
Ms Donald, for the Minister, urges upon the Court that the Tribunal is not prohibited from considering any factors as they may have existed previously. The Minister accepts, however, that the compelling reasons for waiving compliance of the Schedule 3 criteria can apply at any time.
The Minister points to the Tribunal’s consideration of factors that arose throughout the relationship, before, at, and after the date of its Decision, e.g. at [18], [20], [23] (see above at [17], [19], [23]).
The Minister says that Waensila does not compel the Tribunal to make a finding whether the state of affairs at the entry of the relationship (namely, at [28]) persisted, or was a past matter. It was not required to make a finding in relation to genuineness at the date of the Decision. Compelling reasons can be a multitude of circumstances; the Minister says given that Mr Hassan failed to comply with criterion 3001 for over five and a half years, “It was reasonably open to the Tribunal to weigh the claimed compelling circumstances against its finding that the applicant had manipulated his circumstances, regardless of what that manipulation may have evolved into at a later date. It was simply … one of a multitude of circumstances the Tribunal considered in its evaluative judgement, and which it considered cumulatively at [29] of its decision.”
The Minister submits that any error (not conceded) could not be material, in circumstance where the Tribunal also considered each of the matters at each of [18], through to [27].
The Minister then submits, (at [28] of the submissions):
Indeed, even if the applicant were to succeed in demonstrating that an error in [28] of the Tribunal’s decision infected all of its other findings in relation to Criterion 3001, the applicant would still have been required to satisfy Criterion 3004. That required the applicant to satisfy a decision-maker that his substantial period of unlawful residence in this country was due to factors beyond his control. It was the applicant’s own evidence that his failure to approach the Department in that period was partly attributable to his fear of deportation ([28]). The Tribunal at [28] was plainly not receptive to the applicant’s evidence that his period of unlawful residence for over five years was due to circumstances beyond his control. In the circumstances, it is plain that the applicant was not denied the opportunity of a successful outcome by the alleged error even if established.
In sum, the Minister submits that the Tribunal did consider the genuineness of the relationship at the time of its Decision (referring in particular to [21], and [26]), any confinement by the Tribunal of its consideration of genuineness to an earlier point in time was not contrary to Waensila and, lastly, any contrariety with Waensila was not material.
Consideration
A fair reading of the Tribunal’s Decision shows that the Tribunal made a negative finding as to genuineness at [28]. That finding was that Mr Hassan had an ulterior motive – a primary intention of facilitating a migration outcome from shore - in entering into the relationship. The Tribunal has stated nothing about genuineness subsequently - whether or not it considered Mr Hassan’s ulterior motive endured, or the relationship, or Mr Hassan’s motives, evolved beyond that time.
The references of the Tribunal at [21] and [26] of its Decision at most express doubt, leaving open the possibility that the relationship was either genuine, or not. The Tribunal states at [21] “if this relationship was genuine”, and at [26] “if this relationship is genuine” (see above, at [20], and [26], respectively). Neither is a finding of genuineness of the relationship as posited by the Minister. In the context of the matters considered by the Tribunal in those respective paragraphs, the comments by the Tribunal are parenthetical expressions of possible uncertainty, without expressing any firm conclusion. That uncertainty is in contrast to the strongly expressed finding at [28] of lack of genuineness of Mr Hassan’s motive at entry into the relationship.
I do not accept the Minister’s submission that, in the event Mr Jones (for Mr Hassan) has correctly characterised the Tribunal’s consideration of genuineness, and it was confined to the outset of the relationship, there is no contrariety with Waensila. It is clear that the Tribunal at [28] found Mr Hassan’s entry into the relationship was motivated by a migration purpose, and that was a finding of want of genuineness at that time.
I do not understand Mr Jones as submitting that the Tribunal was prohibited with Waensila from considering motive at the time of entry into relationship. The point is, and I find that the Tribunal restricted its consideration of the genuineness of Mr Hassan’s motives in the relationship to that time.
Mr Jones submits that the Tribunal was prevented on that authority from restricting itself to that particular point in time. I accept that submission. The Full Court in Waensila made clear that the regard of the Tribunal to factors such as genuineness of the applicant’s relationship, of necessity, had to extend to genuineness of the relationship - not limited to a past point in time, such as entry into the relationship, - but also to contemporary circumstances up to the date of the Tribunal’s decision: see, e.g., Waensila at [2], [18], [53], [54].
I have referred to the consideration of Robertson J in Waensila at [18] above, at [54]. I do not read that passage, nor their Honours’ reasons, as the Minister urges (see above at [81]). In particular, I do not read his Honour, or the other members of the Court (at [2], or [54], or otherwise) as limited to saying error arises where the Tribunal “refuses to consider factors on the basis that they did not exist at the time of the visa application”. If the Minister by this characterisation of the Full Court’s reasoning in Waensila is seeking to say that if a factor existed at the time of the visa application, the Tribunal may limit its consideration to the factor at that time, and not engage with what may be the state of that factor (such as the genuineness of the relationship) at any later period in time, that submission must be rejected.
The Tribunal could not exclude from its consideration the possibility of the relationship evolving into genuineness. It did so by the emphatic terms of its finding at [28], clearly limiting its consideration to Mr Hassan’s motive at entry. I do not read the references at [21] or [26] of the Decision as expressing any consideration of the genuineness of the relationship, currently or prospectively. When [28] is read in the context of the overall consideration of the Tribunal from [18] through to [29] I consider that the Tribunal’s finding on genuineness is limited to that at entry into the relationship. The result is that in its consideration of whether there are compelling reasons for waiver the Tribunal considered the genuineness of the relationship, but restricted that consideration to the time of Mr Hassan’s intention at entry into the relationship. In so doing it conducted itself contrary to Waensila.
This leaves the question for materiality.
I accept Mr Jones’ submission that whilst the Tribunal relied on other matters when reaching its conclusion that it should not waive the Schedule 3 criterion, it plainly considered the genuineness question of sufficient importance to form part of its reasons for decision on the Schedule 3 criterion. The course of its reasoning under the heading “Compelling reasons” from [18] to [29], and the Tribunal’s consideration and finding at [28] within those reasons, shows this to be so.
Whilst the Tribunal expresses its conclusion at [29], as a consideration both singularly and cumulatively, and whilst as Allsop CJ stated in Choi, genuineness generally will be insufficient to constitute compelling reasons, the opposite may prove germane to the Tribunal’s consideration of the reasons propounded as compelling reasons for affirmative exercise of the waiver. I am persuaded that in the present case there is a realistic possibility that Tribunal’s conclusion that it was not satisfied that there are compelling reasons for not applying the Schedule 3 criteria may have changed if it had not erred in restricting its consideration of the genuineness of the relationship to Mr Hassan’s motive when entering the relationship, as it did at [28].
I consider the references and consideration of the genuineness of the relationship in [28], and specifically, the penultimate and last sentences of [28] to have been material in the Tribunal’s conclusion. I conclude that the Tribunal fell into jurisdictional error, which was material.
Lastly, the Minister made a submission regarding criterion 3004 (see above at [86]). This submission is simply speculative. I reject the submission. No inference arises. It does not sound in materiality. The Tribunal states no conclusion, however tentatively, with respect to how far Mr Hassan’s circumstances were beyond his control for the purposes of criterion 3004.
Conclusion
I have concluded that ground 3 is made out. The Tribunal fell into jurisdictional error, a writ of certiorari should issue, and an order by way of mandamus should be made that the Tribunal reconsider the application for the Visa according to law.
I will so order.
Given that I invited further submissions subsequent to hearing, I will hear the parties on the matter of costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 31 August 2020
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