Jata v Minister for Immigration - [2019] FCCA 1557

FEDERAL CIRCUIT COURT OF AUSTRALIA

JATA v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1557

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (class UK) (subclass 820) visa – whether the Tribunal failed to consider a substantial and clearly articulated submission – whether the Tribunal made an irrational or illogical finding – whether the Applicant was denied procedural fairness – jurisdictional error not established – Application dismissed.

Legislation:
Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), cl. 820.211(2)(d)(ii) of Schedule 2, criteria 3001, 3003 and 3004 of Schedule 3

Cases cited:
BJP15 v Minister for Immigration and Border Protection [2017] FCA 613
Chan v Minister for Immigration and Border Protection [2018] FCA 1323
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Singh v Minister for Home Affairs [2019] FCAFC 3
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZTAP v Minister for Immigration [2015] FCAFC 175

Applicant:

TERENC JATA

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2085 of 2016

Judgment of:

Judge Blake

Hearing date:

20 May 2019

Date of last submission:

20 May 2019

Delivered at:

Melbourne

Delivered on:

7 June 2019

REPRESENTATION

Counsel for the applicant:

Ms Grinberg

Solicitors for the applicant:

Lawson Bayly

Counsel for the first respondent:	Mr Murano
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

DLA Piper

ORDERS

The application filed on 27 September 2016 and amended on 25 January 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2085 of 2016

TERENC JATA

First Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 23 August 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (class UK) (subclass 820) visa (‘the Visa’).
For the reasons set out below, I have decided to dismiss the application for review.

Background

The Applicant is an Albanian national. He first arrived in Australia on 23 August 2012 on a subclass 420 (entertainment) visa which came to an end on 28 October 2012.
On 21 November 2012, the Applicant attempted to lodge a partner visa. This visa application was invalid. A consequence of this was that the Applicant did not hold a visa for a period of time between November 2012 and June 2013, however despite this, continued to reside in Australia.
On 20 June 2013, the Applicant lodged a valid partner visa. The visa was sponsored by Ms Analisa Albano on the basis that she was the Applicant’s spouse.
The Applicant withdrew the visa application with Ms Albano as a sponsor on 15 September 2015. He did this after receiving a letter from the Department dated 3 February 2015 which advised that Ms Albano was already married to two persons who were also applicants for visas.
On 30 September 2015, the Applicant married Ms Shprese Gashi.
The Applicant applied for the Visa on 13 October 2015. Ms Gashi is the sponsor.
On 12 April 2016, a delegate of the Minister refused to grant the Visa under s. 65 of the Migration Act 1958 (‘the Act’) as the Applicant did not satisfy cl.820.211(2)(d)(iii) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘Regulations’). Clause 820.211(2)(d)(iii) of Schedule 2 to the Regulations (‘the Relevant Regulation’) provides, among other things, that an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004 of the Regulations unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The Applicant sought a review of the decision by the Tribunal on 1 May 2016.
On 23 August 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the Visa.
On 27 September 2016, the Applicant filed an application for review of the decision of the Tribunal and an affidavit in support in this Court. The application was subsequently amended on 25 January 2019 pursuant to consent orders made by the Court (‘Application’).

The Proceedings before the Tribunal

It is a criterion for the grant of the Visa that the Applicant satisfy criteria 3001, 3003, 3004 of Schedule 3 to the Regulations (‘the Criteria’) unless the Tribunal was satisfied that there were ‘compelling reasons’ for not applying those Criteria: see the Relevant Regulation.
The issue before the Tribunal, having found that the Applicant did not meet the Criteria, was whether there were ‘compelling reasons’ for not applying the Criteria. The Applicant submitted that there were compelling reasons to not apply the Criteria.
The Tribunal was not satisfied that there were compelling reasons to waive the Criteria. For this reason, the Tribunal affirmed the decision of the delegate.

The Application for Review

There are three grounds of review in the Application. I deal with each ground below.

Ground 1

The first ground of review in the Application filed is:
The Tribunal failed to complete its jurisdiction by failing to consider a substantial and clearly articulated submission.
Particulars
a. It was a substantial and clearly articulated submission that, due to Mr Jata’s migration history, he and his wife would be subjected to an unusually long period of separation if Mr Jata were refused the visa and forced to apply for another visa while offshore.
b. The Tribunal failed to consider this submission.
This claim was first articulated in the proceedings before the Tribunal. In respect of the Applicant’s immigration history, the Applicant during the hearing before the Tribunal asserted a privilege against possible self-incrimination and refused to answer any questions related to his previous visa applications.
The Applicant says that the claim that, given his migration history, he and his wife would be subjected to an unusually long period of separation, was articulated in the hearing before the Tribunal and also in post hearing submissions.
The relevant transcript extract of the hearing before the Tribunal at which the claim was articulated is at page 36, commencing at line 21. The transcript was in evidence in this matter as an annexure to the affidavit of Lawson Bayly, the Applicant’s solicitor. It is convenient to set out the Transcript extract below:
‘I think the sensible view is that if Mr Jata were forced to go offshore, there’s really not much prospect of Shprese following him to Albania, I think for medical and financial and family support reasons. That’s just not going to be likely. So we’re probably looking at the scenario where they’re going to be separated for a year, possibly more. Given the applicant’s visa history, that matter -those matters might actually get - they might cause delay in character consideration and other factors like that. It could be 2 years before the visa is granted and they’re able to be reunited.
So I would ask the tribunal to take into account the very serious likelihood that there won’t just be a period of separation; there will be an unusually long period of separation because of the circumstances that preceded the relationship.’ …
The post hearing submission is contained in an email from the Applicant’s representative dated 18 August 2016 (Court Book page 262). The relevant extract is set out below:
‘In this regard, the “best case scenario” for the sponsor, in the event of a decision to affirm, appears to be that she will be unable to pay the rent on the matrimonial home and her extended family will then attempt to make room for her to live (probably for a very extended period of time, given the applicant’s immigration history) at the 5\86 Kirkham Road Property.’ …. (emphasis added)
In support of the submission that the Tribunal had failed to consider the claim, the Applicant relied on the decision of Justice Bromberg in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, and the comments at paragraph 19 of that decision in respect of the need for the Tribunal engage in an ‘active intellectual process’ leading to genuine consideration. It was also submitted by the Applicant, in response to a submission made by the First Respondent, that firstly, any requirement for there to be probative material on this issue before the Tribunal was minimal. Secondly, there was probative material before the Tribunal to support this submission.
The Applicant says, to this Court, that the claim in the Tribunal in relation an unusually long period of separation was a substantial and clearly articulated claim. I find otherwise. I have already referred to the submissions made by the Applicant at the outset of the Tribunal hearing when he indicated that he would not be answering any questions about his past migration history on the basis that he might incriminate himself. The Applicant, however, then went further than this. He submitted to the Tribunal that his past migration history was not relevant to the determination of ‘compelling reasons’: see the decision of the Tribunal at paragraph [17] on page 281 of the Court Book, and also page 36, line 14 of the transcript of the hearing before the Tribunal, which is set out below:
‘Were consideration or regard to be had to the applicant’s visa history, prior to entering that relationship, and prior to the relevantly compelling circumstances arising, we really would say that that’s just a purely irrelevant consideration.’
The other factor which in my view supports a finding that the claim was not a substantial one is the speculative nature of it. It was a claim based on speculation about what a delegate of the Minister may or may not do at a certain point in time when assessing any application or future application that the Applicant might make in circumstances when the Applicant had said his migration history was not relevant.
For these reasons the claim was neither substantial nor clearly articulated.
The next issue raised by this Ground is the extent to which a decision-maker must give proper, genuine and realistic consideration to matters before it. This is the subject of a recent decision from the Full Court of the Federal Court of Australia. In Singh v Minister for Home Affairs [2019] FCAFC 3, a Full Court summarised the key principles that need to be considered. The key paragraphs are paragraphs [34] to [38] of the decision, extracts of which are as follows:
‘34. The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
• a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
• a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
• a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
35. However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review:
…
36. The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ET067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37. In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which is said was not engaged with, to the issues in the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45] quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole of the case as it was before the Tribunal, which might have involved more issues that are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues in the way in which the matter was conducted in the Tribunal; and
(c) 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].’
I have already found the claim was not a substantial one, nor one that was clearly articulated. It was therefore not the type of claim caught by paragraph [34] of Singh. Furthermore, I am also satisfied that the claim, whether resolved one way or the other, would not be dispositive of the review. I therefore do not regard the claim as being one caught by what the Full Court contemplated in paragraph [34] of Singh. On this basis, I am satisfied the Tribunal did not commit jurisdictional error.
Finally, when one has regard to the manner in which the claim was put before the Tribunal (which I have outlined above), I am satisfied the Tribunal did take into account the substance of the claim (such as it was) that separation may be long. For example:
a)at paragraph 39 of the decision, the Tribunal made findings in relation to the support that the sponsor would receive should the Applicant be required to apply for the Visa overseas;
b)in paragraph 43 of the decision, the Tribunal considered the income position of the sponsor given the Applicant’s potential absence;
c)at paragraph 45 of the decision, the Tribunal considered whether the sponsor could adjust to life and other arrangements while the Applicant applied for the visa offshore;
d)at paragraph 49 of the decision, the Tribunal discussed the ability of the Applicant to live and find employment offshore;
e)at paragraph 57 of the decision, the Tribunal expressly stated it had regard to ‘all other relevant factors’ in determining that there were not compelling reasons for waiving the Criteria.
The import of the above is that the Tribunal was well apprised of the circumstances of the Applicant and the difficulties it might cause to the Applicant and to the sponsor and her family. It went through those matters in some detail. It cannot be said, in my view, that there was a failure to consider those circumstances, including a lengthy period of absence or separation.
For the above reasons, Ground 1 of the Application cannot be made out.

Ground 2

The second ground of review is as follows:
The Tribunal made an irrational finding, or a finding for which there was no evidence.
Particulars
a. A key submission made by the applicant and his wife was that his wife’s anxiety and depression gave rise to compelling reasons to waive the Schedule 3 criteria.
b. In support of this claim a letter from the wife’s doctor, Doctor Tan, was provided to the Tribunal. This letter stated that the wife was experiencing symptoms of anxiety and depression related to her recent miscarriage and that she was dependent on her husband for reducing the severity of those symptoms. The doctor also stated that if the wife were forced to separate from her husband it would cause her severe stress and she may be at risk of suicidal ideation and neglect the management of her diabetes.
c. The Tribunal discounted the severity of the wife’s symptoms for two reasons. Firstly, because the wife had not sought psychological support and secondly because the Tribunal found it ‘surprising that Dr Tan did not refer Ms Gashi for psychological therapy if she believed that Ms Gashi ‘may be at risk of suicidal ideation.’
d. The Tribunal was not satisfied that the wife’s psychological condition and the potential effect that separation would have on this amounted to a compelling reason to waive the Schedule 3 criterion.
e. The letter from the doctor did not purport to contain information about what referrals the doctor had made.
f. The Tribunal did not ask the wife or Mr Jata whether the doctor had made any referrals for the wife to receive psychological treatment.
g. It was irrational or illogical for the Tribunal to reason based on an omission from the letter that no referrals had been made and that this was because the doctor did not believe that the level of risk of the wife experiencing suicidal ideation did not warrant a referral.
This ground of review relates to the following finding made by the Tribunal at paragraph [34] of its reasons for decision:
‘… While the Tribunal acknowledges Ms Gashi’s evidence that she receives emotional support from Mr Jata, if her anxiety and depression is as debilitating as is claimed, the Tribunal finds it’s surprising that she has not sought psychological support at any time. Further, the Tribunal finds its surprising that Dr Tan did not refer Ms Gashi for psychological therapy if she believed that Ms Gashi ‘may be at risk of suicidal ideation.’
In respect of this ground, the Applicant submits, in summary:
a)a principal submission in support of the Tribunal finding compelling reasons to waive the Criteria was the state of Ms Gashi’s health, in particular her anxiety and depression;
b)evidence of Dr Tan in the form of a letter was tendered to the Tribunal to support that submission;
c)in its decision, the Tribunal discounted the severity of Ms Gashi’s symptoms because she had not sought psychological support and because it was ‘surprising that Dr Tan did not refer Ms Gashi for psychological therapy if she believed that Ms Gashi “may be at risk of suicidal ideation”.’

The Applicant submitted that, as a consequence of the above, the Tribunal made a number of errors in its reasoning on this point. First, there was no basis for a finding that Dr Tan did not refer Ms Gashi for psychological therapy. Second, the Tribunal did not ask whether the doctor had referred Ms Gashi for psychological therapy – it only asked whether Ms Gashi had received counselling. Third, it was not open to the Tribunal to reason that no referrals had been made given the scope of the letter written by Dr Tan. The omission from the letter of referrals made does not logically lead to a conclusion that no referrals were made. Fourth, it was pure speculation for the Tribunal to reason that Dr Tan had not referred Ms Gashi for treatment and that this was because the doctor did not believe that the level of risk of Ms Gashi did not warrant a referral.
In support of these propositions, the Applicant relied on the decisions of Justice Pagone in BJP15 v Minister for Immigration and Border Protection [2017] FCA 613 and Justice Yates in Chan v Minister for Immigration and Border Protection [2018] FCA 1323.
BJP15 concerned a case involving a claim by the appellant having been detained in Sri Lanka. In that matter, the Tribunal gave significant weight to the appellant mother’s affidavit, which made no reference to the appellant having been detained. The Tribunal rejected the appellant’s submission that the affidavit was produced solely to explain the difference in the spelling of the appellant’s names. Justice Pagone, however, accepted the appellant’s submission that, among other things, no broader purpose could be drawn from the document other than to correct the spelling of names. The Court found that the Tribunal had made an error in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
It was submitted by the Applicant that, when the matters above are considered in light of the authorities to which he relied on, the approach of the Tribunal was illogical or irrational as contemplated by Justices Crennan and Bell in SZMDS. I set out below all of paragraph [135] of the decision of Justices Crennan and Bell in SZMDS, which was also relied on by the First Respondent:
‘On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.’
The Minister also relied on the decision of Crennan and Bell JJ in SZMDS, in particular paragraphs [131] to [135] of the decision. I have set out paragraph [131] in full below:
‘What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.’
I now turn to deal with the matter before me. The letter from Dr Tan was reproduced at Court Book page 222. It is not possible to ascertain from the letter what it is responsive to. Clearly the letter describes a range of conditions, or potential conditions, applicable to Ms Gashi. There is nothing on the face of the letter, however, which explains why Dr Tan wrote the letter, what Dr Tan was responding to, or what terms of reference she was given. It is not possible to draw from the terms of the letter any indication as to whether or not Dr Tan was asked to provide information about the referrals.
Next, a review of the Tribunal’s decision indicates that the Tribunal had other sources of information available to it in relation to psychological services or assistance that Ms Gashi may or may not access.
First, it is necessary to revisit the transcript of the hearing before the Tribunal. In this regard, the following needs to be considered:
a)The Applicant was specifically asked whether Ms Gashi had been getting treatment for stress and depression. At pages 12 and 13 of the transcript of the hearing before the Tribunal, the following exchange occurred between the Member and the Applicant:
‘MEMBER is she being treated for her depression? For example, is she taking medicine for her depression, is she having counselling?
WITNESS: Not in the moment because they had to finish the insulin first, and after then they have to take.
INTERPRETER: She has been to a psychologist.
MEMBER: How many times has she been?
INTERPRETER: She’s been once.
WITNESS: Yes, and she has to go again.
MEMBER: When did she go?
WITNESS: Like, a month.
MEMBER: A month ago?
WITNESS: Yes, a month, I guess.
MEMBER: What was the name of the psychologist?
WITNESS: I don’t know, to be honest. Can’t remember.’
b)In addition to the above, Ms Gashi was asked whether she had been treated for stress or depression. Her answer is recorded on page 26 of the transcript of the hearing before the Tribunal between lines 4 to 31, and is set out below.
‘MEMBER: Have you been getting any treatment for your stress or depression?
MS GASHI: Yes. I said that I do want to talk to a specialist but because it’s just too much at a time, I just want to go step by step without putting me under pressure so we just want to put the blood sugar levels a bit low.
MEMBER: Have you been to a counsellor at all yet?
MS GASHI: Not yet but we’ve spoken about it before two weeks ago.
MEMBER: Are you taking any medication for the depression and –
MS GASHI: The problem is they did wanted to give me some anti-depressant tablets because I’m still planning wanting to be pregnant and it’s something that’s making me a bit stressed of knowing that I’m taking Metformin, four insulins a day, I’m taking my blood pressure tablets and a lot of other things I’m supposed to have. If I take that, I’m just afraid that it’s going to be too much, it’s putting me under pressure. I’m still young, I’ve got illnesses like if I was Maria in her age. I just want to take everything time like just want to have like this thing with knowing that my husband maybe won’t be there for me, it’s just giving me a lot of panic and I don’t want to have it all just settled on tablets.
I just want to go step by step like as I still have - we still want to have children. I don’t want to give up my hopes. So if it doesn’t get better in the future, then I think I will have to start the tablets. If there’s no other reasons, I definitely would. I would not say no to it.’
c)There was then a further exchange between the Tribunal and the Applicant at page 27. In that exchange, the Tribunal sought to clarify whether Ms Gashi had been to a counsellor. The relevant extract is set out below:
‘MEMBER: Mr Jata, do you wish to comment on anything that your wife said?
MR JATA: No.
MEMBER: No. Can I clarify? She said she hasn’t been to a counsellor, and you said she went to a psychologist.
MS S. GASHI: I’m sorry to say, I mean, I’ve already seen but I haven’t done no treatment yet, but I’ve spoken to one. The dietitian, I think that’s what he’s trying to say. But I haven’t been visiting. I haven’t done my –
MEMBER: You haven’t seen the counsellor yet?
MS S. GASHI: No, no, but I’ve been speaking to one because when I did the dietitian, my first appointment she said - I explained to Ms Kalia, so that’s why it has a lot of effect on my personal problems, and she’s the one who said to go, which I did go. I spoke to him, and then he said, “Just have some time to think about it.” He gave me his business card but I haven’t started. I think that’s what Terenc is - sorry to interrupt.’
Following on from the above, at paragraph 35 of its decision, the Tribunal was satisfied that Ms Gashi was aware of available psychological services if she decided to seek treatment.
When regard is had to the matters set out above, it is clear that the Tribunal had a basis for making a finding that Ms Gashi had not sought psychological support. That history is relevant when considering whether the finding that it was ‘surprising that Dr Tan did not refer Ms Gashi for psychological therapy if she believed that Ms Gashi may be at risk of suicidal ideation’ is illogical.
In the course of the proceeding before this Court, Ms Gashi filed an affidavit affirmed on 23 January 2019 which was read into evidence. In that affidavit, Ms Gashi deposes that she did not ask Dr Tan to outline all of the medical advice she had been provided in relation to those matters. It is notable, however, that Ms Gashi does not provide any direct evidence about a referral having been made.
The Applicant was aware from the way he presented his case before the Tribunal that Ms Gashi’s depression and anxiety was a significant issue before the Tribunal. It was open for the Applicant to put on direct evidence about whether Ms Gashi had been referred to a psychologist at the Tribunal. There was no evidence that he did so. It was also open to Ms Gashi in her affidavit in this matter to depose directly to a referral having been given. She did not do so. Ultimately, it was for the Applicant to advance evidence in support of its contention at the Tribunal.
The Applicant also filed post hearing submissions with the Tribunal. In light of the direct questioning that had occurred about the mental health of Ms Gashi, it was open to the Applicant to raise any further issue before the Tribunal in relation to these matters. No submission was made by the Applicant in relation to the mental health of Ms Gashi or that Ms Gashi had been referred for treatment in that submission.
Finally, I have considered the Applicant’s reliance on the decisions of Justice Pagone in BJP15 and Justice Yates in Chan.
This matter is not similar to BJP15. There, an affidavit was produced for the purpose of clarifying a difference in the spelling of the name by a mother, and too much significance was given to it, in light of its scope and purpose. Here however, the letter came from a qualified medical professional providing a medical report, for the purposes of the Applicant’s application to the Tribunal. This is a significant difference from BJP15.
Chan concerned a consideration of the same criteria as applies in this case. The appellant’s application for a Visa was refused by the delegate and the Tribunal on review. An issue was the effect of separation on the appellant’s husband (a sponsor for the Visa). The Tribunal had accepted that the husband suffered from anxiety. Justice Yates found that the sponsor’s response to medical treatment was an important issue because it went to whether his medical condition could be controlled. The Federal Court found there was no evidence before the Tribunal that the husband’s condition had been responding to medical treatment. The evidence only went so far as to show that medical treatment had commenced. The Federal Court found that it was not rational for the Tribunal to conclude, without any evidentiary basis, that the sponsor’s anxiety condition appeared to be responding to medical treatment.
I am not satisfied that the present matter is in the same category as Chan. Justice Yates’s criticism, which is contained at paragraph [34] of that decision, is that there was not simply an erroneous finding of fact, but a finding of fact that was completely unsupported by evidence in the Tribunal, and therefore it was not rational to reach the conclusion that it did. In this matter, as set out above, when the totality of the evidence is looked at, the issues relating to the sponsor’s medical issues were fleshed out and the Tribunal took an active approach in trying to understand what services the sponsor had accessed.
In light of the above, I am satisfied that it was open to the Tribunal to conclude, based on all of the evidence before it, that it was surprising that Ms Gashi had not sought psychological support. I am unable to discern anything irrational or illogical about that conclusion given the matters to which I have referred. On this basis, Ground 2 of the Application must fail.

Ground 3

The third ground of review in the application is as follows:
The Tribunal failed to comply with section 360 of the Act by failing to put Mr Jata and Ms Gashi on notice that the doctor’s apparent failure to refer Ms Gashi for psychological therapy constituted a reason for the Tribunal’s lack of satisfaction that compelling reasons existed for waiving the Schedule 3 criteria.
Particulars
a. The doctor’s professional opinion in relation to the severity of the wife’s psychological symptoms and the potential effect on her mental health if separated from her husband was of central importance to the submissions made that the wife’s health problems gave rise to compelling circumstances to waive the Schedule 3 criterion and allow Mr Jata’s application to be assessed onshore.
b. A significant reason the Tribunal did not accept the severity of the wife’s mental illness and potential effect on this if separated from her husband was because the Tribunal found it ‘surprising that Dr Tan did not refer Ms Gashi for psychological therapy if she believed that Ms Gashi ‘may be at risk of suicidal ideation.’
c. The issue of any referrals made by the doctor and their relationship to the strength of the doctor’s opinion regarding the wife’s psychological illness was not an issue arising in the delegate’s decision.
d. The Tribunal did not ask the wife or Mr Jata what referrals were made by the doctor.
e. The Tribunal did not put Mr Jata on notice that an issue arising was whether the doctor had made any referrals for the wife to receive psychological treatment.
Section 360 of the Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to a decision under review. The Applicant submitted that in considering the equivalent provision under Part 7 of the Act, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 held that, unless otherwise indicated by the Tribunal, the issues arising in relation to the decision are the issues that the delegate considered is dispositive.
The Applicant submitted that, in considering the obligations of procedural fairness on a Tribunal acting in accordance with the Act in SZBEL, the High Court stated at paragraph [47] as follows:
‘…It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted’.
The Applicant also relied on the decision in Chan. It was submitted by the Applicant that in Chan, the issue of the sponsor’s anxiety condition was not an issue arising in relation to the delegate’s consideration of whether compelling reasons existed. While the issue of the sponsor’s anxiety was a condition before the Tribunal, Justice Yates said it could not reasonably be said that the appellant was on notice that the sponsors response to medical treatment for the condition was an issue. Justice Yates ultimately found that the appellant should have been put on notice of the issue in accordance with the principal arising from SZBEL.
The substance of the Applicant’s submissions relying on the decision in SZBEL is as follows:
a)The doctor’s professional opinion in relation to the severity of Ms Gashi’s symptoms were of central importance to the submissions made by the Applicant;
b)The issue of any referrals made by any treating doctor was not an issue arising in the delegate’s decision;
c)The letter from the doctor did not purport to contain a list of referrals made. The Tribunal did not enquire into referrals made;
d)The Applicant’s advisers were not aware that this was an issue before the Tribunal; and
e)In view of the above, the Applicant did not have an opportunity to properly respond to the matter. Had it been fairly raised, the Applicant may have chosen to submit further information to the Tribunal.
Each of the Applicant and the First Respondent referred me to a number of authorities in relation to this ground of review. As noted above, the Applicant relied on SZBEL, and also the decision in Chan. The First Respondent took me to SZBEL, and also the decision in Minister for Immigration and Border Protection vSZTQS [2015] FCA 1069 and SZTAP v Minister for Immigration [2015] FCAFC 175 to illustrate the fact sensitivity of these matters and whether having regard to those facts in this matter, procedural fairness was properly afforded to the Applicant.
In respect of SZBEL, the Minister relied on paragraph [48]:
‘… Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgement’.
I have already found above that, in this case, a principal issue on review was the extent to which Ms Gashi was suffering from depression and anxiety. For the reasons outlined previously, I am also satisfied that the Applicant and the sponsor were both aware, having regard to the exchanges that took place before the Tribunal to which I have previously alluded, that the issue of Ms Gashi’s seeking of specialist treatments for her mental health issues was a matter of interest. Despite that, no post hearing submission was made on that issue. I refer to the following paragraphs above in relation to this: see paragraphs 40, 44 and 45.
The issue of the doctor’s referrals was a matter clearly falling within the ambit of the issue concerning Ms Gashi suffering from depression and anxiety. As I have noted, it was an issue on which the Applicant was on notice about. In the context of this case, I find that procedural fairness was not denied to the Applicant. Requiring the Tribunal to distil and put to the Applicant every subset of evidence to do with the state of Ms Gashi’s mental health would, in the context of what occurred here, effectively be requiring the Tribunal to give a running commentary on the evidence.

For the above reasons, Ground 3 of the Application must be dismissed.
In light of the findings I have made, the Application for review is to be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 7 June 2019