Hassan v Minister for Immigration
[2018] FCCA 3096
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASSAN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3096 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy but did not Criterion 3001 no “compelling reasons” for not applying Criterion 3001 – specific complaints of jurisdictional error asserted by applicant not established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth) Migration Regulations (Amendment) 1996 No.75 (Cth) |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 |
| Applicant: | MUNAWAR HASSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1491 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 25 October 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Ms S. Burnett |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 19 October 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1491 of 2016
| MUNAWAR HASSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Pakistan aged 45 years, having been born on 25 October 1973.
By Amended Application filed in this Court on 19 October 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 September 2014 refusing to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth).
Background
The Applicant arrived in Australia on 2 February 2000 on a Business (Short Stay) (Class TR) (Subclass 456) visa which ceased on 2 May 2000. This was the last substantive visa held by the Applicant.
The Applicant then from 20 April 2000 until 3 September 2013 lodged other visa applications, including two Protection visa applications and a series of requests for Ministerial Intervention, all to no effect. These are more fully identified at [7] – [23] of the Decision Record of the Tribunal under review in this proceeding.
The Partner visa application lodged on 16 July 2014 was based on the Applicant being in a spousal relationship with an Australian permanent resident, Ms Tara Hussain (the sponsor), whom he had married in Sydney on 16 April 2014 and who was the sponsor for his Partner visa application. The sponsor at the time of the Partner visa application was aged 34 years, having been born in Pakistan on 3 August 1979. She had arrived in Australia on 16 September 2011 and became an Australian citizen on 19 April 2016.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
Statutory Provisions Relevant to Partner Visa Applications
As at the date of application, the Applicant had to satisfy cl.820.211 of the Regulations. Relevantly cl.820.211(1) and (2) provided as follows:
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
(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.
(emphasis added)
As noted in [3] above, the Applicant’s last substantive visa ceased on 2 May 2000. It was common ground in this proceeding that this meant that at time of application for the temporary Partner visa he had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required him to have made his application within 28 days of 2 May 2000, being namely by 30 May 2000. However, he had made his Partner visa application on 16 July 2014, some 14 years too late. Accordingly, it was necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see cl 820.211(2)(d)(ii).
The criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.
Decision of Delegate
In his Decision Record the Delegate noted that the Applicant had been invited by letter dated 14 August 2014 to submit information relating to any compelling reasons that might apply to his case. The Applicant submitted further information by way of documentation on 11 September 2014.
The compelling reasons claimed by the Applicant for not applying Criterion 3001 included:
a)the sponsor’s anxiety and disrupted sleep pattern;
b)the sponsor’s sole reliance on the Applicant to drive her around;
c)delay in the sponsor conceiving a baby;
d)the lack of free healthcare facilities in Pakistan;
e)the sponsor’s reluctance to return to Pakistan because she had no family and no property; and
f)safety concerns if he had to return to Pakistan.
In the result, having considered the claims and circumstances of the Applicant and the sponsor the Delegate concluded that there were no compelling reasons to waive Criterion 3001 and that cl.820.211(2)(d)(ii) was not met.
Accordingly, the Delegate refused the application for the grant of a temporary Partner visa, which meant that pursuant to cl.801.221(1) the Applicant also did not meet the criteria for the grant of a permanent Partner visa.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 27 October 2014 and appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal also took oral evidence from the sponsor, who at that time was 36 years of age.
From [6] – [23] of its Decision Record the Tribunal recorded the Applicant’s visa application history and the documentation submitted in support of the application for review.
From [24] – [30] the Tribunal recorded the basic facts concerning the Applicant and the sponsor and the documents submitted by them in support of the Partner visa application.
In short, the Applicant claimed that he was in a genuine spousal relationship with the sponsor and that if he were required to return to Pakistan to lodge an offshore Partner visa application, both he and the sponsor would experience financial, social, health, cultural and emotional hardship.
From [31] – [51] the Tribunal summarised the claims and evidence of the Applicant given at the Tribunal hearing and at [52] – [56] the claims and evidence given by the sponsor.
From [57] – [65] the Tribunal accepted at face value the claim that the Applicant and the sponsor were in a genuine and continuing spousal relationship and found that the Applicant did not satisfy Criterion 3001, and that therefore it was required to consider whether or not there were compelling reasons for not applying Criterion 3001.
From [66] – [69] of its Decision Record the Tribunal set out the meaning and effect which ought to be given to the expression “compelling reasons” and correctly referred as giving guidance at [69] to the decision of the Full Court of the Federal Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 (Babicci) at 289 [24].
Then from [71] – [132] the Tribunal recorded its consideration of whether or not there were compelling reasons for not applying Criterion 3001 by reference to the following subject matters:
a)Length of relationship and whether there is an Australian citizen child of the relationship;
b)Impact of separation on mental health of the sponsor;
c)Time it will take for an offshore partner visa to be processed in Pakistan;
d)Age-related maternity issues affecting the sponsor;
e)Safety concerns if the Applicant returns to Pakistan;
f)Difficulties the sponsor may experience offshore and relevant independent country information;
g)Impact on Applicant’s health and wellbeing if he returned to Pakistan;
h)Difficulty the Applicant would face making a fresh start to his life in Pakistan;
i)Impact on sponsor if Applicant is required to depart Australia; and
j)Applicant’s integration with and contribution to Australian society.
Finally, at [133] the Tribunal recorded its conclusion that, having considered the claims and the evidence singularly and cumulatively, it was not satisfied that the Applicant or sponsor had provided compelling reasons to not apply Criterion 3001 and accordingly it affirmed the decision of the Delegate not to grant a Partner visa of the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Amended Grounds relied upon by the Applicant were as follows:
1. The Tribunal erred in its interpretation of cl.820.211(2)(d)(iii) of Schedule 2 to the Migration Regulations 1994.
Particulars
(a) In taking the view that the decision made by the Applicant and his spouse to delay having children was a “discretionary choice”, the Tribunal failed to consider whether the factors involved in making such a choice could amount to a compelling reason for not applying the Schedule 3 criteria.
(b) The Tribunal limited its consideration of the sponsor’s levels of anxiety and fear of living alone to her current circumstances, without considering what effect a lengthy separation from her husband or relocation to Pakistan might have on her mental health.
(c) The Tribunal limited its consideration of the effects of separation to circumstances common to all applicants, without considering the specific circumstances of the Applicant and his spouse.
(d) There was no evident or intelligible justification for the Tribunal’s disregard of the example given in the relevant Explanatory Statement of a two-year relationship being a compelling reason for waiver of the Schedule 3 criteria.
2. The Tribunal constructively failed to exercise its jurisdiction by not making a finding in respect of a significant aspect of the Applicant’s claims.
Particulars
(a) The Applicant claimed that if he was required to lodge an application for a partner visa in Pakistan the processing time would be three years of more. The Tribunal noted that the average processing time reported by the Department of Immigration was 12 months but agreed that in his case the need to carry out further health checks might take longer. It stated that it did not accept that the need to undertake health checks in “countries such as Australia, New Zealand or Canada” was a compelling reason, but did not make any finding as to what the extra processing time might be in Pakistan.
(b) The Applicant claimed that he would not be able to find the medication that he [required] for his asthma in Pakistan in the form that it had been prescribed in Australia. The Tribunal’s research did not show whether he could find the medication in the prescribed form and the Tribunal made no finding on that matter.
Consideration
Ground 1(a)
Ground 1(a) alleges that the Tribunal erred by either misapplying or misunderstanding the statutory test for “compelling reasons” in respect of the Tribunal’s assessment of the parties’ choice to delay having children.
I note that it does not appear to me that in a general sense the Tribunal misunderstood the meaning and effect of the test of “compelling reasons”. The Tribunal referred at [69] of its Decision Record to Babicci where the Full Court of the Federal Court comprised of Tamberlin, Conti and Jacobson JJ at [21] – [24] had stated as follows:
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]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.
This statement of principle in Babicci is consistent with the meaning given to the word “compelling” by French CJ, Bell, Keane and Gordon JJ in M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 (M64/2015) at 187 – 188 [31] and that of Gageler J at 196 – 197 [64].
At [31] of M64/2015 the plurality said:
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted)
At [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted)
In both his written submissions and at the hearing Mr Jones, who appeared for the Applicant, attacked the Tribunal’s use of the expression “discretionary choice” at [87] – [88] of its Decision Record as “dismissive” and as indicative that the Tribunal had failed to properly consider, as a compelling reason for not applying Criterion 3001, that the Applicant and sponsor’s choice to delay conception was motivated or compelled by the uncertainty of their situation.
In my view, this Ground fails to establish that the decision of the Tribunal was affected by jurisdictional error.
First, I consider that when the Tribunal at [87] used the expression “a discretionary choice”, the word “discretionary” was used in the sense of “voluntary”. The initial definition of the meaning of “discretionary” in the Oxford English Dictionary (2nd Ed, online) is:
1.a. of or relating to discretion or freedom in decision; left to or exercised at discretion; optional, voluntary.
(emphasis added)
That the Tribunal at [87] used the word “discretionary” in the sense of “voluntary” is confirmed by its use of the word at [88] and [125], again within the expression “a discretionary choice”, where it found that any decision by the sponsor to accompany the Applicant to Pakistan would be “a discretionary choice”. There was nothing inapposite or dismissive in the Tribunal’s use of the expression “a discretionary choice”.
Second, in my view the Tribunal did give proper and meaningful consideration to the claims made by the Applicant and the sponsor concerning their decision to delay starting a family. The Applicant’s evidence in this regard was summarised at [45] of the Decision Record as follows:
[45]The applicant gave evidence he and the sponsor want to have children but despite their concerns relating to both of their advancing age, made a decision in early 2015 to wait until his immigration status was clarified before actively trying to conceive a child. The applicant said the sponsor was not taking steps to avoid falling pregnant prior to early 2015……………………………
At [54] of its Decision Record the Tribunal recorded the sponsor’s evidence in this regard, as follows:
[54]The sponsor said she and the applicant would like to start a family but she feels a lot of insecurity at the prospect of having a child and a job, in the circumstance where the applicant had to leave Australia and she had to cope with these things on her own………...
Then at [84] – [89] under the heading of “Age-related maternity issues affecting the sponsor” the Tribunal further summarised the claims made for the Applicant and the sponsor in this regard. At [89] it expressed its conclusion on this issue as follows:
[89]The Tribunal has considered the available evidence with regard to the age related maternity issues impacting on the parties and finds these do not provide a compelling reason to not apply the Schedule 3 criteria.
In my view no jurisdictional error is established in connection with the Tribunal’s consideration and findings on this issue.
Ground 1(b)
Ground 1(b) alleges that the Tribunal erred in its consideration of the sponsor’s levels of anxiety and fear, without considering what effect a lengthy separation from the Applicant due to his relocation to Pakistan might have on her mental health. In my view, this Ground also fails to establish jurisdictional error.
The Tribunal considered this issue from [73] – [79] of its Decision Record under the heading of “Impact of separation on metal health of the sponsor”. At [73] – [74] respectively the Tribunal summarised the claims made by the Applicant and the sponsor in relation to the sponsor’s anxiety and sleep difficulties. At [75] – [76] the Tribunal considered the sponsor’s current circumstances in terms of anxiety and sleep issues in Australia. At [78] the Tribunal expressed its view that the sponsor’s current anxiety and insecurities and symptoms in connection with that anxiety did not provide a compelling reason to not apply Criterion 3001.
At [77] and [79] the Tribunal expressly considered what the effect on the sponsor of a separation from the Applicant would be if he had to return to Pakistan to reapply for a Partner visa and she had to live in Canberra by herself. The Tribunal accepted that each might find separation difficult for a period of time. Nevertheless, at [79] the Tribunal also recorded its view that:
[79]……All applicants who apply for offshore partner visas must wait while the visa application is processed and tolerate some level of physical separation. Couples often keep in contact by holiday visits, frequent telephone, electronic or other means of contact. The Tribunal does not accept that temporary separation whilst awaiting the outcome of a visa is a compelling reason not to apply the Schedule 3 criteria.
These findings at [77] and [79] need to be read in conjunction with the Tribunal’s finding at [80] of its Decision Record that the current average Partner visa application processing time for applications made in Pakistan was 12 months, not the period of more than three years asserted by the Applicant and the sponsor.
In my view, the Tribunal properly and meaningfully considered the claims referred to in [35] above and accordingly Ground (1)(b) fails to establish jurisdictional error.
Ground 1(c)
Ground 1(c) alleges that the Tribunal did not consider the specific circumstances of the Applicant and the sponsor when it considered the effects of separation, but rather considered common circumstances applicable to all applicants for offshore Partner visas.
In my view, it is clear from [73] – [79] of the Decision Record of the Tribunal that it did meaningfully consider the specific factual claims and circumstances of each of the Applicant and the sponsor and did not limit its consideration to circumstances common to all applicants.
The specific claims and evidence of the Applicant and the sponsor on the effects of separation, as well as on the other claims, are set out in detail in the Decision Record with reference to the personal circumstances of the Applicant and the sponsor. The statement at [79] of the Decision Record “that all applicants who apply for offshore partner visas must wait while the visa application is processed and tolerate some level of physical separation” does not mean that the Tribunal did not take into account their specific circumstances or diminish or vitiate the Tribunal’s specific consideration of those circumstances. Rather, that statement simply highlighted the Tribunal’s view that such a period of waiting and physical separation was not in the circumstances of this case a compelling reason not to apply Criterion 3001.
Ground 1(c) fails to establish jurisdictional error.
Ground 1(d)
Ground 1(d) complains that the Tribunal disregarded the part emphasised below of Clause 10 of the Explanatory Statement to the Migration Regulations (Amendment) 1996 No.75 (Cth), which stated with respect to cl.820.211(2)(d) of the Regulations as follows:
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:
· where there are Australian-citizen children from the relationship; or
· where the applicant and his or her nominator are already in a longstanding relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
This Ground also fails to establish jurisdictional error. The same argument has been put to Judge Smith of this Court in Prempree v Minister for Immigration & Border Protection [2017] FCCA 220 (Prempree), who found that the Explanatory Statement had no binding legal effect.
At [16] and [17] of Prempree his Honour said as follows:
[16]In oral submissions, counsel for the applicant argued that the Tribunal had failed to grapple with the argument that the length of the relationship alone was sufficient to justify the conclusion that there were compelling reasons to waive the criteria. Before turning to consider this argument it is necessary to deal briefly with the applicant’s reliance on the Explanatory Statement as the source of some obligation imposed on the Tribunal.
[17]Reliance on this statement wrongly elevates the Explanatory Statement to a statement of law which must be applied by the Tribunal. The statement has no legal effect and, even if it spoke in compulsory terms, it would not be binding on the Tribunal because it has no statutory force. In any event, contrary to the applicant’s argument, the statement relied upon only goes so far as to express an expectation rather than a requirement. For those reasons this aspect of the applicant’s argument is misplaced.
Similar submissions have been made in many cases over the years in relation to the asserted binding effect of the Procedures and Advice Manual (PAM3). However, PAM3, like the Explanatory Statement, has no binding legal effect.
In Baston v Minister for Immigration and Border Protection [2018] FCA 73 at [67] – [68] Siopis J recently stated:
[67]Mr Baston also alleged that the Minister had failed to refer to, or follow, two paragraphs of the department’s Procedures and Advice Manual (PAM) which appear to refer to the relevance of compassionate circumstances affecting the age and health of a person in instances where hardship would be caused to that person.
[68]However, the Minister is not obliged to follow the PAM and his failure to do so, even if established, would not amount to jurisdictional error (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 (El Ess) at [45]).
The Full Court of the Federal Court of Australia in COT15 v Minister for Immigration and Border Protection (No.1) (2015) 236 FCR 148 at 154 – 155 said of El Ess as follows at [31]:
[31] The appellant faced two further obstacles in relation to his reliance on PAM3. The first obstacle is the judgment in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 (El Ess) in which Gray J held at [45]:
[45]In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.
(emphasis added)
In my view these statements of principle as to the non-binding effect of PAM3 apply equally to the Explanatory Statement invoked by Mr Jones in this case. It is clear from [66] – [67] of the Decision Record of the Tribunal that it did have regard to the Explanatory Statement and PAM3, and in particular to the example given in the Explanatory Statement of a relationship which has been in existence for two years or longer. Part of [66] of the Decision Record of the Tribunal stated as follows:
[66]…The waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. The waiver was introduced to provide flexibility for the Minister where 'compelling' circumstances arise. The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of the provisions gave examples of where a waiver may be justified as: where there are Australian-citizen children from the relationship, or the applicant and his or her sponsor were already in a long-standing partner relationship which has been in existence for two years or longer. However, these examples are not part of the legislation itself.
The Tribunal extensively reviewed the claims and evidence of the Applicant and the sponsor and having done so concluded at [71] of the Decision Record, with specific reference to the Explanatory Statement and PAM3, as follows:
[71]The Tribunal has considered the kinds of reasons included in the Explanatory Statement and in the Department's Procedures Advice Manual to the extent that they are relevant to the circumstances of the applicant and the sponsor. The applicant met the sponsor in December 2013 and they were married in April 2014. The applicant and the sponsor have therefore been married for around two years and four months. The Tribunal is not satisfied the length of the parties' relationship, in and of itself, constitutes a compelling reason to not apply the Schedule 3 criteria.
In these circumstances, as was similarly found by Judge Smith in Prempree at [22]:
[22]In effect, the applicant’s argument came down to an assertion that the Tribunal had not properly appreciated “the significance to be attached” to the duration of the relationship. Understood in that way, the assertion was no more than an argument that the Tribunal should have given greater weight to the duration of the relationship. The weight to be given to the duration of the relationship was a matter that was left by the legislature entirely to the decision-maker and does not give rise to any cause for this Court to interfere with the decision of the Tribunal.
Accordingly, Ground 1(d) fails to establish jurisdictional error.
Ground 2(a)
The subject matter of Ground 2(a) was dealt with at [80] of the Decision Record of the Tribunal under the heading of “Time it will take for an offshore Partner visa to be processed in Pakistan”.
At [48] and [54] of its Decision Record the Tribunal had recorded the respective claims of the Applicant and the sponsor that if the Applicant had to return to Pakistan to lodge an application for the Partner visa the processing of the visa would be “protracted” and the sponsor feared that she and the Applicant “would be separated for between three to five years if the applicant had to return to Pakistan to lodge the application for a Partner visa because of the length of time it takes for things such as visa applications to be processed in that country.” (see [54] of the Decision Record).
At [80] the Tribunal recorded that the Applicant had said that it might take three or more years and the sponsor had said that it might take between three and five years for the Partner visa application to be processed in Pakistan. The Tribunal went on to note that the Applicant and the sponsor appeared to base their belief “on anecdotal information provided to them by friends and also their experience with bureaucratic procedures” in Pakistan. The Tribunal then noted that it placed more weight on the processing time of 12 months indicated by the Department of the Minister’s post in Islamabad, Pakistan than the anticipated time frame asserted by the Applicant and the sponsor, though it went on to accept at [82] that, as a result of the Applicant’s past pneumonia illness, the Partner visa application process in Pakistan “may take longer to process due to required medical assessments to ensure he fulfils the criteria for relevant health checks, such as ensuring he does not suffer from an illness such as tuberculosis…”.
The Tribunal concluded at [82] as follows:
[82]… The Tribunal does not accept needing to undertake necessary health checks required by the immigration authorities in countries such as Australia, New Zealand or Canada provide a compelling reason to not apply the Schedule 3 criteria to the applicant's application for a Partner visa.
The Tribunal is criticised in this Ground for not making an express or “real” finding as to what might be the length of the extra processing time in Pakistan resulting from the Applicant’s past pneumonia. In my view, the Tribunal was not bound to make an express finding on this issue and no jurisdictional error is established by the Tribunal not doing so. It was for the Applicant and the sponsor to make their case to the Tribunal. They had claimed that the processing time in Pakistan could range from three to five years and that claim had been rejected by the Tribunal on what appears to be legally reasonable grounds. Neither the Applicant nor the sponsor appear to have suggested any specific or definite extra time period which might be caused by the need to check on the Applicant’s past pneumonia problems. The onus was on them to make such a claim and establish it to the satisfaction of the Tribunal if they wanted the Tribunal to take it into consideration as a compelling reason. It was not the obligation of the Tribunal to seek out specific evidence or information about any extra time period for the processing of the Partner visa application. Further, as Heerey J said in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348, “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
Ground 2(b)
Ground 2(b) (as amplified at [26] of Mr Jones’ Written Submissions) asserts that the Tribunal did not conduct “research” to ascertain whether the Applicant could find “Seretide” in “the prescribed delivery method” in Pakistan.
It is clearly established that in applications for review before the Tribunal it is for the applicant to advance whatever evidence or argument he or she wishes to advance and it is for the Tribunal to decide whether the claim is made out. The Tribunal is not required to actively assist an applicant in putting his or her case nor is it required to carry out an inquiry in order to identify what that case may be: see SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 505 – 506 at [36] – [37] per Graham J.
The only claim which appears to have been made by the Applicant in this connection was simply that he had an asthma action control plan, and used Seretide / Ventolin as needed (see the respective medical reports of Prof Barnes and Dr Lim identified at [107] of the Decision Record of the Tribunal) and that Seretide would not be available in Pakistan. At [108] the Tribunal accepted that the Applicant suffered from asthma and used Ventolin and Seretide medication as required. At [109] the Tribunal recorded that it was not satisfied that the claim of the Applicant recorded at [106] based on anecdotal information that Seretide would not be available in Pakistan could be accorded significant weight.
The Tribunal further referred at [109] to evidence “which indicate Seretide is readily available in Pakistan, with this medication's manufacturer, Glaxosmithkline, having an established presence in that country.” There is no evidence that the Applicant actually claimed that Seretide would not be available in Pakistan through the means of the Accuhaler which he apparently showed to the Tribunal. On this issue, the Tribunal at the end of [109] merely stated as follows:
[109]The Tribunal is aware not all forms by which this medication can be administered are available in all countries. The applicant showed the Tribunal the Accuhaler through which he takes Seretide. However, there is no medical evidence before the Tribunal to suggest this is the only form by which the applicant can administer this medication.
The onus lay on the Applicant to make a claim that Seretide was not available through means of the Accuhaler and that he could only administer Seretide to himself by means of that device. However, that claim does not appear to have been made; rather the claim seems simply to have been, as recorded at [106] of the Decision Record, that Seretide per se would not be available in Pakistan. The Tribunal rejected this claim on what appears to have been a legally reasonable basis and it was not bound to make further enquiry or further findings concerning possible methods of administration of this medication available in Pakistan.
In my view Ground 2(b) fails to establish jurisdictional error.
Conclusion
None of the Grounds relied upon by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Amended Application is to be dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 5 November 2018
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