Ilaua v Minister for Home Affairs
[2023] FedCFamC2G 350
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ilaua v Minister for Home Affairs [2023] FedCFamC2G 350
File number(s): SYG 858 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 May 2023 Catchwords: MIGRATION – JUDICIAL REVIEW – Partner visa – application made 28 days after the expiry of substantive visa – compelling reasons – failure to give proper, genuine and realistic consideration – failure to take into consideration the evidence – no jurisdictional error established Legislation: Migration Act 1958 (Cth) Cases cited: AYY17 v Minister for Immigration and Anor (2017) FCCA 288
ESQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 44
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111
Namesa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 216
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 3 May 2023 Date of hearing: 3 May 2023 Place: Parramatta Solicitor for the Applicant: Mr Turner of Ray Turner Immigration Lawyers Solicitor for the Respondents: Mr Harvey of Australian Government Solicitor ORDERS
SYG 858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KALAUSA ILAUA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the First Respondent’s costs of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUSGE OBRADOVIC:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“tribunal”) dated 4 March 2019, affirming a decision of the first respondent’s delegate (“delegate”) dated 4 December 2017, not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant applied for the visa on 19 June 2017 at a time when he was an unlawful non-citizen. He had not held a valid visa since 7 September 2014. Pursuant to sch.2, cl.820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth), and relatedly sch.3, an application for the visa must have been made within 28 days of the expiry of a substantive visa unless the Minister is satisfied that there are compelling reasons to dispense with that requirement.
The delegate and the tribunal found that no such compelling reasons existed and declined to grant the visa on that basis.
The applicant says that the tribunal’s decision was infected by jurisdictional error because the tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and failed to take into consideration the evidence in support of the applicant’s claims.
BACKGROUND
The applicant is 34 years old and is a national of Tonga. The applicant most recently arrived in Australia on 7 August 2014 holding a visitor visa, which subsequently expired on 7 September 2014. From that date, until he applied for the visa the subject of these proceedings and was granted a bridging visa, he was an unlawful non-citizen.
The applicant met his wife and sponsor of the visa, Mrs Ilaua, at Imanuela Revival Church (“Church”) where they both serve, on 1 September 2014. They married on 9 February 2017. Mrs Ilaua is an Australian citizen of Tongan descent and is currently 47 years of age.
On 19 June 2017, the applicant lodged the visa application. On 4 December 2017, the delegate refused the application. On 5 March 2019, the tribunal affirmed the decision of the delegate.
DELEGATE’S DECISION
The delegate identified that, in the circumstances, the applicant was required to make the visa application within 28 days of the expiry of a substantive visa, unless there were compelling reasons to dispense with that requirement.
The delegate invited the applicant to make submissions regarding the basis for which there were compelling reasons to dispense with the 28 day time period.
Before the tribunal were various documents including, inter alia:
(a)Letters of support from the applicant;
(b)Letter of support from Mrs Ilaua;
(c)Letters of support from members and leaders of the Church;
(d)Statutory declaration of support from the applicant’s mother and brother in law; and
(e)Financial records.
The claims made by the applicant before the delegate, in support of the existence of compelling reasons included, inter alia;
(a)That the applicant originally overstayed the visitor visa was because, had he returned to Tonga, he would have been homeless because the house he had resided in was inherited by his half-brother after the passing of his father;
(b)By staying in Australia, the applicant was able to financially support his family who resided in Tonga;
(c)The applicant is very involved in the Church as a volunteer leader and in the wider Tongan community;
(d)The applicant has a strong genuine and affectionate relationship with Mrs Ilaua and their relationship would suffer if he had to move to Tonga; and
(e)The applicant is a person of integrity and good standing.
The delegate found that no compelling reasons existed to dispense with the time limit for, inter alia, the following reasons:
(a)The existence of a genuine spouse relationship between the applicant and Mrs Ilaua, and the hardship suffered from the separation if the applicant were to leave and apply for the visa offshore, is not, in and of itself, a compelling reason;
(b)The relationship between Mrs Ilaua and the applicant is not long standing;
(c)There was no evidence that the applicant’s residence in Tonga was no longer available;
(d)It is not an acceptable reason to overstay a visitor visa to financially support family members offshore;
(e)Mrs Ilaua would continue to have emotional support if the applicant were to move back to Tonga because she resides in Australia with her family;
(f)The applicant has a poor migration history; an
(g)The whole of the relationship between the applicant and Mrs Ilaua up to the filing of the visa application occurred whilst the applicant was an unlawful non-citizen.
Subsequently, the delegate found that an essential requirement of the visa was not met and refused the application.
TRIBUNAL DECISION
The tribunal also identified that the 28 day time period was not met and therefore turned its mind to whether there were compelling reasons to dispense with that requirement.
In addition to the material before the delegate, the applicant furnished further documents to the tribunal that he says further supports his contention that compelling reasons exist to dispense with the 28 day time period. The applicant put before the tribunal material and information going to the following:
(a)The requirement to travel to Tonga and apply for a visa there would result in financial hardship;
(b)Mrs Ilaua and the applicant are trying to conceive a child, and given her age, any further delay would decrease their chance of having children;
(c)Mrs Ilaua and the applicant are investigating the option of IVF to have children;
(d)The reason that the applicant and Mrs Ilaua did not live together prior to marriage was due to their Christian beliefs and Tongan cultural background and that they were in a committed relationship before marriage despite not cohabiting;
(e)The applicant and Mrs Ilaua support the applicant’s mother and her children in Tonga, including funding medical treatment for the applicant’s mother;
(f)The applicant assists in taking care of Mrs Ilaua’s mother, who has various medical problems; and
(g)The applicant established and continues to lead the brass band at the Church.
The applicant and Mrs Ilaua also gave oral evidence to the tribunal on 18 December 2018 and 22 January 2019.
The tribunal noted that:
[22] … The Explanatory Statement to Statuary 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.
[23] Department policy states that the provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or who deliberately manipulate their circumstances to give rise to compelling reasons. The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual (PAM 3) which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status…
[24] The Tribunal is not bound by Department policy…
The tribunal found that there were no compelling reasons to dispense with the 28 day time period for, inter alia, the following reasons:
(a)The reason given by the applicant for overstaying his visitor visa was not satisfactory nor does it provide a compelling reason;
(b)The applicant’s mother is no longer homeless nor does she reference any current financial reliance on the applicant;
(c)Whilst the applicant’s and Mrs Ilau’s relationship could be classified as long-standing, having commenced in March 2016, this in and of itself is not sufficient to be a compelling reason;
(d)The emotional impact on the applicant and Mrs Ilaua physically separating is not in and of itself a compelling reason;
(e)Mrs Ilaua would be able to visit the applicant in Tonga while any future visa application is made offshore;
(f)The financial implications for Mrs Ilaua, of the applicant moving to Tonga and lodging a new visa application, would be offset by her not having to provide for him in Australia, which she currently does;
(g)Assistance given to Mrs Ilaua’s mother by the applicant is not at a level of care sufficient to be a compelling reason, and that Mrs Ilaua’s mother’s needs could be tended to by other family members or community based aged care support services;
(h)The applicant would be able to seek paid work in the construction industry in Tonga; and
(i)There is no evidence that the applicant or Mrs Ilaua suffer from any diagnosed fertility issues, that IVF treatment is at an enquiry stage only and that the applicant and Mrs Ilaua could still continue with their endeavour to have a child through Mrs Ilaua visiting the applicant in Tonga whilst any future visa application is processed.
The tribunal did not give any consideration to the applicant’s involvement in the Church and the consequences for the Church if the applicant was not granted a visa.
Before affirming the decision of the delegate, the tribunal stated:
[51] The Tribunal has considered all of the claims made by the applicant. In this matter, the applicant has submitted his relationship with the sponsor is genuine, loving and long term. He claims his support to his mother-in-law is very significant and that there will be financial and other difficulties for him if he has to return to Tonga. The parties also claim their wish to start their own family will be compromised by a period of separation, given the sponsor’s age-related fertility difficulties. The Tribunal has considered these and the other claims raised by the parties, both singularly and cumulatively, but is not satisfied they provide compelling reasons for not applying the Schedule 3 criteria.
[52] Based on the above and the other finding outlined in this decision, 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).
GROUNDS OF JUDICIAL REVIEW
The applicant relies on his Amended Application filed 8 August 2019. The applicant’s grounds for judicial review are as follows:
(1)The tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims.
Particulars
(a)The tribunal only considered claims individually and failed to consider if the cumulative claims amounted to compelling circumstances; and
(b)The tribunal failed to provide a real assessment of the cumulative claims.
(2)The tribunal failed to take into consideration the evidence before it which supported the applicant’s claims.
Particulars
(a)The tribunal failed to consider the support provided by the applicant to the sponsor while she undergoes IVF treatment;
(b)The tribunal failed to consider the applicant’s contribution and active involvement in the Imanuela Revival Church and the impact this would have if the applicant departs Australia; and
(c)The tribunal at [28] of its Decision Record found that there was no reference in the applicant’s mother’s statement that she was financially reliant on the applicant. However, the tribunal has failed to consider that the applicant’s mother expressly stated in her statement that the applicant stayed in Australia to support his family members in Tonga which can be reasonably inferred to be financial support.
The respondent opposes the applicant’s application.
The applicant’s grounds will be dealt with seriatim.
DETERMINATION
Ground 1(a) & (b)
The applicant says that the tribunal failed to give proper, genuine, and realistic consideration to the cumulative claims of the applicant. The applicant argues that whilst the tribunal says that it considered the applicant’s claims cumulatively, they did not actually do this and that any suggestion they did is a “bland” statement and merely perfunctory.
The respondent says that the tribunal did give proper, genuine and realistic consideration of the cumulative claims of the applicant. Such is clear, the respondent argues, from the Decision Record of the tribunal, in which the tribunal says they made an “overall assessment” of the claims “both singularly and cumulatively.”
It is well settled that when a decision maker is obliged to consider a particular matter, there must be an active intellectual engagement with them and that engagement must be meaningful.[1]
[1] SZLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944 at [26] citing Middleton, Moshinsky and Anderson JJ in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [87]-[89] and Bromberg and Mortimer JJ in Minister for immigration and Border Protection [2017] FCAFC 96 at [12].
Notwithstanding, the respondent took the Court to the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs (“Plaintiff M1/2021”) which stated the following:[2]
[26]Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd , “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[2] [2022] HCA 17 per Kiefel CJ, Keane, Gordon, and Steward JJ (“Plaintiff M1/2021”).
Further, the Full Court of the Federal Court stated in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“KXXH”) that:[3]
[47]First, a conclusion that the decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao at [48] (the caution with which the label ‘active intellectual process’ must be approached does not detract from the standard expressed there). The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 ; and BVD17 v Minister for Immigration & Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] , as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).
[3] [2022] FCAFC 111 (“KXXH”).
The respondent also submits that the applicant did not articulate that the cumulative claims compounded to form compelling reasons and, therefore, that the ground cannot be made out. The applicant says that it is not necessary, as a matter of law, for the applicant to articulate such a claim and that the tribunal is required to consider the applicant’s claims cumulatively, and their compounded effect regardless.
In a recent decision of this Court, Namesa v Minister for Immigration, Citizenship and Multicultural Affairs,[4] with an almost identical ground of jurisdictional error, her Honour Judge Ladhams stated:
[27]In determining whether the Tribunal has considered the whole of the circumstances, it is relevant to consider the manner in which the applicant advanced her claims of compelling reasons to the Tribunal. For example, in Choi v Minister for Immigration and Border Protection [2018] FCA 291 (Choi), Allsop CJ accepted at [19] that the Tribunal’s approach to evaluating the different claimed circumstances was explained by how each of the claimed circumstances were put to the Tribunal in submissions. Likewise in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3245 (Singh) at [64], Judge Riethmuller took into account that the applicant did not specifically put to the Tribunal that the various reasons she and the sponsor advanced combined or compounded in a specific way that would require the Tribunal to provide further reasons than it did.
[4] [2023] FedCFamC2G 216.
Whilst this decision is not binding, it is highly persuasive.[5]
[5] It was submitted on behalf of the applicant that this decision is wrong at law.
It is of little assistance to the Court in hearing a judicial review application for a legally represented applicant to make general statements of principle and not support submissions by specific matters. It is for the applicant to satisfy the Court that a decision is infected by jurisdictional error and that it should be set aside for that reason.
The applicant has not done so in this instance.
In its decision, the tribunal has properly and fairly summarised and marshalled the applicant’s arguments and evidence. The applicant was self-represented before the tribunal. While the tribunal did have an obligation to consider all the circumstances of the case, individually and cumulatively, to determine whether there are compelling reasons for granting the visa, the tribunal was alive to this obligation and did do so.
A conclusion that the tribunal has not engaged in an active intellectual process, which is what the applicant is here asking to Court to make, will not be lightly made and must be supported by clear evidence. The bar for the applicant is a high one.
There was no suggestion that the applicant had specifically, before the tribunal, made any submission or put any information going to the cumulative effect of the matters said to be compelling reasons.
The mere absence of detailed reasons going to the cumulative effect of the matters advanced by the applicant, in the presence of detailed reasons as to each of those matters individually, and a statement that the matters were considered cumulatively, does not of itself indicate that the tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims.
The applicant was not able to point to any clear evidence of a failure by the tribunal to engage in an active intellectual process and to give proper, genuine and realising consideration to the applicant’s claims cumulatively.
Ground 1 is not made out.
Ground 2 in general
Although the applicant’s ground 2 as framed is a claim that the tribunal failed to consider the evidence before it which supported the applicant’s claims, it became apparent during submissions that this was really an argument about evidence going to an unarticulated claim.
It is well accepted that an unarticulated claim must be raised squarely on the material before the tribunal and that the review obligations extend to a claim which is not expressly advanced but is apparent on the face of the material before it. In respect of a claim which clearly emerges on the materials:[6]
(a)Such a finding is not to be made lightly;
(b)The fact that a claim might be said to arise from materials is not enough;
(c)To clearly emerge from the materials, the claim must be based on established facts;
(d)There is no precise standard in determining whether an unarticulated claim has been squarely raised; and
(e)Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
[6] ESQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 44 at [61], see also AYY17 v Minister for Immigration and Anor (2017) FCCA 2886 at [18].
Ground 2(a)
The applicant argues that the tribunal failed to consider the support he would provide to the applicant as she undergoes IVF treatment. The applicant says the tribunal should have considered this because it had evidence of Mrs Ilaua’s fertility issues and had contacted IVF treatment centres.
The respondent says that the tribunal did not have to consider such support because it had no evidence that Mrs Ilaua was actually undertaking IVF treatment nor was there any medical evidence that the applicant or Mrs Ilaua suffered any fertility issues.
The evidence before the tribunal relating to IVF treatment was that Mrs Ilaua had sent an enquiry to Monash IVF and an employee of Monash IVF had offered to book an over the phone “chat” between Mrs Ilaua and a fertility nurse. There was no evidence that any phone consult took place or if any treatment occurred or progressed.
At [49] the tribunal found the following:
I accept the parties’ wish to have children and that to date they have not had success in relation to starting their own family. I acknowledge the sponsor has legitimate concerns with regard to her age and the impact this could have upon her ability to have children. I acknowledge the cost of IVF treatment can be significant. However, there is a lack of medical evidence to establish the extent of any actual fertility difficulties affecting either the applicant or sponsor. I am also not persuaded the applicant and sponsor could not continue with their endeavour to have a child, through the sponsor visiting the applicant in Tonga whilst his visa application was being processed in that location.
The tribunal clearly considered whether the applicant’s wish to have a child provided a compelling reason in the circumstances. In this regard, the tribunal noted the consistent evidence of the applicant and his sponsor as to their wish to start a family, and that they had researched IVF treatment after having difficulty in falling pregnant. There was no evidence before the tribunal that the parties had progressed beyond enquiry in respect of IVF at that stage. The tribunal’s decision in respect of these matters is not challenged, and in particular, it is not suggested that there was evidence about actual IVF treatment or any progress past the enquiry stage.
There was no evidence going to these issues, specifically, neither that the applicant’s sponsor was undergoing IVF treatment, nor as to any support by the applicant in this regard. In those circumstances and furthermore, there could not be any claim that arose on the material as to the support that the applicant was to provide to his sponsor while she underwent IVF.
The applicant has not explained how the tribunal failed to consider evidence which was never before it, and the impact of evidence that was never before it, in respect of a claim that was never made.
Ground 2(a) is not made out.
Ground 2(b)
The applicant say that the tribunal failed to consider the applicant’s contribution and active involvement in the Church and the impact this would have if the applicant departs Australia.
The respondent concedes that the tribunal did not consider this claim but argues that it had no obligation to because it was never put to the tribunal as a substantial and clearly articulated claim.
In support of this submission, the respondent directed the Court to Plaintiff M1/2021 where the High Court stated:[7]
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
And also to KXXH where the Full Court of the Federal Court stated:[8]
[52]… the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ). It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46].
[7] Plaintiff M1/2021 (n 2).
[8] KXXH (n 3).
Whilst the applicant concedes that this claim was not clearly articulated by the applicant, the applicant says that it clearly arose on the materials before the tribunal.
In particular, the applicant took the Court to specific material which he says crystallises a claim that, in essence, the Church would be significantly negatively affected if the applicant were forced to move to Tonga:
(a)A statement from Linda Ti’ulakitau, a member of the Church dated 7 September 2017 stating:
He also has great gifts in the brass instrument while [Mrs Ilaua] has a tremendous gift in our youth. She has a tremendous gifts in dealing with our youth of today. I know they will be of great asset to our church and to the Tongan community as well.
(b)A statement from Viliami F Pulu, associate pastor of the Church, dated 31 May 2017 stating:
We had a vision for the church to have a brass band, and although we had the instruments, there was no one to teach or conduct. When [the applicant] came along, we knew he was the answer to our prayers.
…
[The applicant’s] talents have helped to broaden our ministry to the youth and we are grateful that God is using him in this way.
The couple, no doubt, are assets to this group of people and we are better for having them.
(c)A statutory declaration of David Fainga’a Tuulakitau, Mrs Ilaua’s brother and a member of the Church, dated 28 October 2017 stating:
I have also known the applicant for almost 3yrs through our church music department over the past three years. Mr Ilaua and I constantly remain in contact due to the appointed responsibility of teaching and maintaining our music team including brass, choir and music band.
…
[The applicant] is also a valued member of our church – his capabilities in the brass band team is outstanding.
I know for a fact that [the applicant] has made a difference in my sister [Mrs Ilaua’s] life. He has made a difference in the church and also the community.
(d)A statement from Sela Moala Nikua, a member of the Church, dated 7 September 2017 stating:
[The applicant] and [Mrs Ilaua] have blessed me and the rest of the church members of our church with their great gifts and talents that they provide for our church. Every time when [the applicant] performs together with the brass band in church, it brings blessing to me and strengthen my faith and my daily walk with Christ.
…
These couples have great gifts in various areas within the church. They’re also a great asset to Imanuela Revival Church and I know they will be a blessing for our church…
…
I know [the applicant] will be a blessing for our church and also to our Tongan community.
(e)A statement from Siaosi Tupoulahi, a member of the Church, dated 5 September 2017 stating:
[The applicant] and his wife are heavily involved in our church. [The applicant] is the instructor in our brass band and [Mrs Ilaua] is our youth leader.
….
[The applicant] also has great gifts in the brass instruments and the kids at the church loves his teaching approach. I know that [the applicant and Mrs Ilaua] will be of great asset to our church and to the Tongan community as well.
The respondent argues that these materials do not crystallise any such claim because the materials, when put in their context, predominately support other relevant matters that were considered by the tribunal, including how the applicant and Mrs Ilaua met, their shared interests and activities and the applicant’s relationship to those making the statements.
Even so, the respondent says that the materials do not assert, as the applicant claims, that the Church or its members would suffer hardship if the applicant had to return to Tonga.
The Court is not satisfied that there was any evidence going to the impact on the Church, if the applicant was to depart Australia, arising from his contribution and active involvement. Furthermore, the Court is not satisfied, that in all of the circumstances, the material before the tribunal gave rise to a claim that the Church would be so affected by the applicant not being granted a visa, that this amounted to a compelling reason to grant the visa.
Even on the most generous reading of the applicant’s material, such a claim does not squarely arise. Indeed, it does not even remotely arise. The evidence was, in any event, considered by the tribunal as part of its assessment of the genuineness of the relationship of the applicant and his spouse and in the overall assessment of the applicant’s claims as to compelling reasons.
It was entirely open to the applicant to put before the tribunal material going to this specific issue, even if he did not specifically articulate it as part of his claim. At its highest, the information shows that the applicant (and his wife) are valued members of the Church. It does not, at its highest, show that the Church would suffer or that the Church youth and/or its members would be detrimentally affected by the applicant’s absence from the country and/or a visa refusal.
Ground 2(b) is not made out.
Ground 2(c)
The applicant says that the tribunal made an error of fact by stating that the applicant’s mother was not financially reliant on the applicant and that the materials before the tribunal expressly state that she was supported by the applicant and that the tribunal should have reasonably inferred that this was financial support.
The respondent says that the ground cannot be made out because the tribunal did not make any such error of fact, and even if it had, it was not sufficiently central to the decision.
In a statement before the tribunal of the applicant’s mother dated 3 December 2018 she states:
My son [the applicant] and his wife [Mrs Ilaua] have both been very supportive of me and the rest of my children through these tough times and I am very thankful to both of them. In May 2018 [Mrs Ilaua] travelled to Tonga for a funeral and during her trip she came to visit me a couple of times. We have continued to build our relationship through phone calls, email and social media. I am thankful to have a humble and caring and loving daughter in law.
…
[The applicant] and [Mrs Ilaua] has supported me while I was in hospital. They helped me with funding my medical treatments and medications.
In the Decision Record, the tribunal stated at [28]:
I have also noted that information provided by the applicant’s mother, Mrs Talivosa Ilaua Tenifa, in a written statement, dated 3 December 2018, indicates that she and her younger children are no longer homeless, as they are living with another relative in Tonga and whilst Mrs Tenifa attests to the genuine nature of the applicant’s relationship to the sponsor, she makes no reference to any financial reliance on them.
The respondent argues that when the tribunal says that “she makes no reference to any financial reliance on them”, this should be understood to be a finding that there is no present or continuing dependency. This is so, the respondent submits, because whilst there is evidence that the applicant and Mrs Ilaua had financially supported the applicant’s mother in the past whilst she underwent medical treatment, this does not necessarily mean that she is reliant on them in any continuing sense.
Notwithstanding, the respondent says that a claim of continuing financial reliance of the applicant’s mother was not clearly articulated nor did it clearly arise from the material.
The respondent further submits that even if such a claim implicitly arises on the material, any factual error of the tribunal was not sufficiently central to the tribunal’s decision for two reasons: the first is that the tribunal merely “noted” the information provided by the applicant’s mother; and second, that the tribunal placed far greater weight to the applicant having given inconsistent evidence about his employment which, at least, was not regular, and that Mrs Ilaua had given consistent evidence that she financially supports the applicant and sends money to the applicant’s family. These finding were not contested by the applicant. Subsequently, the respondent says that the tribunal was satisfied that there would be no substantial financial impact on the applicant’s mother if the applicant was forced to return to Tonga, because Mrs Ilaua could continue to send money to the applicant’s family and the tribunal was satisfied that the applicant could seek paid work in Tonga.
The applicant’s legal representative did not make any oral submissions in support of this ground, and the written submissions assert that the applicant’s mother’s statement gave rise to “a logical inference” that the applicant provided his mother and family with financial support. The letter does not do so expressly, nor can such a matter be inferred.
There was certainly no evidence that the applicant provides ongoing financial support to his mother and/or his extended family.
At its highest, the evidence was that at one time the applicant (and/or his sponsor) provided financial support to his mother, not that it is continuing nor that it is an expectation. Furthermore, there was no evidence that if he did not provide ongoing financial support that his mother would suffer, such as to be a compelling reason as required. As such, the tribunal did not fail to take into consideration any such evidence as there was no such evidence, either expressly or by inference. Furthermore, and for the sake of completeness, no such claim arises on the material.
Ground 2(c) is not made out.
CONLUSION
For all of those reasons, no jurisdictional error has been established and the application for judicial review is to be dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Deputy Associate:
Dated: 8 May 2023
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