Lee v Minister for Immigration

[2020] FCCA 1357

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1357

Catchwords:
MIGRATION – Visa – partner visa – whether Tribunal failed to conduct a review – whether failure to advise of issue which was dispositive – whether breach of procedural fairness – whether decision irrational or illogical – whether Tribunal misapprehended evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360(1) and 425

Migration Regulations 1994 (Cth), sch.2, 3 and criterion 3001

Cases cited:

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Applicant: BO HIANG LEE

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 464 of 2017

Judgment of: Judge Heffernan

Hearing date: 25 May 2020

Date of Last Submission: 25 May 2020

Delivered at: Adelaide

Delivered on: 28 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Marcus

Solicitors for the Applicant: Camatta Lempens

Counsel for the Respondents: Ms Nyabally

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 464 of 2017

BO HIANG LEE

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) Visa (‘the visa’).

2. The hearing before me proceeded on the basis of the applicant’s second Amended Application.  Pursuant to orders made by a Registrar of the Court, the applicant filed an Amended Application in March 2020.  In preparing this matter for hearing, the legal representatives of the applicant concluded that a further ground should be added to the application.  They placed the first respondent on notice of the proposed further ground.  Having not heard from the first respondent and with the hearing date fast approaching, an Application in a Case was filed seeking leave to rely on the further ground in addition to the grounds already pleaded.  The first respondent opposed leave being granted to rely on the further ground on the basis that quite apart from the issue having arisen very late in the day, it was contended that the proposed ground lacked any merit.  I gave leave for the applicant to rely on the further ground.  All three grounds are set out in the second Amended Application.  The grounds are as follows:

   “1.The Tribunal failed to conduct a review as required by section 425 of the Migration Act 1958 (“the Act”) in that it failed to identify an issue dispositive to the review, and in so doing, failed to provide the applicant the opportunity to give evidence and present arguments in respect of that issue.

   Particulars

   1.1The issue for the Tribunal to determine on the review of the refusal of the applicant’s Partner visa was whether there were compelling reasons for it to waive the criteria contained within Schedule 3 of the Migration Regulations 1994 (“the Regulations”).

   1.2The Tribunal informed the applicant during the hearing that “the only pertinent issue is whether [she] knew that she didn’t have a visa” prior to lodging the Partner visa, which was the subject of the review (emphasis added).

   1.3The applicant raised in the hearing that her husband had high blood pressure and required her to stay and help with his business.

   1.4The Tribunal did not ask for any detail about this, and did not inform the applicant that it did not accept her evidence, nor that it would be necessary for her to obtain further evidence.

   1.5The Tribunal was not satisfied at paragraph [34] of its reasons that the sponsor was reliant on the applicant for his blood pressure, based in part on the lack of medical evidence regarding the sponsor.

   1.6The Tribunal was not satisfied at paragraph [38] of its reasons that the sponsor was reliant on the applicant and would suffer hardship in the running of his business.

   1.7In circumstances where the Tribunal placed significant emphasis on the question of whether the applicant knew she was unlawful prior to lodging the Partner visa, the applicant was not on notice that the lack of evidence regarding the sponsor’s health or business could form the basis for the Tribunal refusing her application.

   1.8The error was material, because the applicant was denied an opportunity to present evidence which could have made a difference to the Tribunal’s assessment of her review application.

   2.The Tribunal made an illogical or irrational finding regarding the applicant’s language skills, or one which was not supported by evidence or any logical grounds, which formed a lack of satisfaction about a jurisdictional fact, namely that the applicant did not lack fluency in English, and this cause a jurisdictional error.

   Particulars

   2.1The applicant gave evidence to the Tribunal that she was unaware of her visa status in part because she did not speak English.

   2.2The applicant also gave evidence that she communicated with employees of her husband’s business in the language of Mandarin, which her husband does not speak. There was no evidence that this was in the formal role of an interpreter, or on a professional or accredited basis.

   2.3The Tribunal at all times during the hearing communicated with the applicant using an interpreter.

   2.4The Tribunal found that the applicant, being an interpreter herself (which she was not), knew the role of an interpreter and knew how to access interpreters.

   2.5The Tribunal accordingly found that the applicant had not been unaware of her visa status or the nature of the application made due to her lack of fluency in English.

   2.6The error was material, because the finding of the Tribunal formed part of its assessment of the applicant’s overall credibility, and the finding that she was aware that she was unlawful between April 2011 and November 2015.

   3.The Tribunal failed to conduct a review according to law by misapprehending evidence presented to it.

   Particulars

   3.1The applicant and her sponsor gave evidence to the Tribunal of the occurrence of a fire that occurred in November 2013.

   3.2The applicant and sponsor both explained references in the materials to the fire occurring at ‘the farm’ were incorrect and the fire actually occurred in their house in the township of Penola.

   3.3The Tribunal found the applicant’s sponsor gave evidence there was no fire. However, when the sponsor’s evidence is taken with his later signed statement, it is apparent the sponsor was clarifying there was no fire at the farm.

   3.4The Tribunal misapprehended the evidence of the sponsor.

   3.5The Tribunal drew an adverse inference against the applicant based on the misapprehended evidence.

Background

1. The relevant background and procedural chronology have been helpfully set out by both the applicant and the first respondent in their written submissions.  I have adapted those summaries for the purpose of this section of my reasons.

2. The applicant is a Malaysian citizen.  She first visited Australia in 2007 for a period of three months under cover of a visitor’s visa.  She met her sponsor and later husband on that occasion.  She last arrived in Australia in July 2010 once again on a visitor’s visa.  That visa expired on 11 October 2010 and she has not held a substantive visa since that date.  Shortly before that visa expired the applicant lodged a protection visa application.  A delegate of the Minister refused that application in January 2011.  That decision was affirmed by the Refugee Review Tribunal (‘the RRT’) in 2011.  The applicant continued to remain in Australia unlawfully after the determination of the review process relating to the protection visa.  The applicant applied for the visa the subject of these proceedings on 3 November 2015.  The applicant’s sponsor had recently finalised his divorce and the applicant and he were married in October 2015.

3. A delegate of the Minister wrote to the applicant in December 2015 inviting her to comment on certain information. In particular, she was asked to comment on the fact that in order to comply with criterion 3001 in Schedule 3 of the Migration Regulations 1994 (Cth) (‘the Regulations’), it was necessary for her to demonstrate that she had made her application for the visa within 28 days after the day on which she last held a substantive visa. In the applicant’s case that would have been by 8 November 2010. Noting that the relevant criterion might be waived if there were compelling reasons to do so, the delegate invited her to provide any claims and evidence that might support such a finding.

4. The applicant was at that time represented by a migration agent who provided a response and supporting documents to the delegate on her behalf.[1] Three reasons were proffered as to why the Schedule 3 criteria should not be applied in her circumstances. These were related to her husband’s business, his relationship with his ex-wife, and his health condition. The delegate refused the application for the visa on 22 January 2016. The delegate found that the applicant failed to meet the criteria for the application set out in Schedule 2 of the Regulations which in turn required her to meet the criteria set out in Schedule 3 of the Regulations. The delegate found, and it was not disputed by the applicant, that she had not applied for the visa within 28 days of having held a valid visa. The delegate concluded that the applicant did not meet criterion 3001 and was not satisfied that there were compelling reasons to waive that criterion.

   [1]     Court Book (‘CB’), 79-83.

5. The applicant lodged her Application for Review by the Tribunal in February 2016. The applicant’s representative made written submissions as to why it was said that there were compelling reasons to waive the Schedule 3 criteria.[2]  The matters referred to were, the length of her relationship with the sponsor and the adverse impact on him if she were to be required to leave this country because he placed significant reliance on her to assist both in the management of his business and his health conditions.  The submission also contended that she had not intended to apply for a protection visa in 2010 and that she had in fact instructed her migration agent to lodge an application for a partner visa.  The applicant claimed to have been unaware of her unlawful status. 

   [2]     CB, 220-223.

6. The applicant was invited to attend a hearing before the Tribunal in order to give evidence and present arguments.  The original hearing date was postponed at her request.  The hearing ultimately proceeded on 10 August 2017.  Both the applicant and her sponsor attended by video link and gave evidence.  The applicant had the assistance of a migration agent and both she and the sponsor were assisted by appropriate interpreters.

7. The decision record of the Tribunal set out the background to the claims and the relevant criteria to the Regulations in a manner that was unexceptionable. When considering if the applicant could establish that there were compelling reasons for not applying the Schedule 3 criteria, the Tribunal took into account the length of time over which the applicant had remained unlawfully in this country. It considered her explanation that she had not known she was residing here unlawfully and that she had understood her application for a protection visa was in fact an application for a partner visa. The Tribunal specifically considered the evidence that her previous agent had simply fabricated her claims for protection. The Tribunal rejected that claim as lacking credibility and gave reasons for that finding. The Tribunal did not accept the applicant’s evidence that she had not understood her immigration status.[3] It found the applicant and her sponsor had given inconsistent evidence both with respect to a fire at their property and the difficulties experienced by the sponsor in obtaining a divorce. It rejected the applicant’s claim that her poor English in combination with her reliance on her migration agent caused a misunderstanding of her immigration status. The Tribunal was not satisfied that the circumstances of the applicant having been an unlawful noncitizen for such a lengthy period of time amounted to a compelling reason to waive the Schedule 3 criteria. Further, the Tribunal did not accept that the sponsor was dependent on the applicant to manage his health needs on an ongoing basis. In particular, the conclusion it reached in that regard was based on credibility findings and a lack of supporting medical information. Nor was the Tribunal satisfied that the contribution of the applicant towards running the sponsor’s business, the costs she had wasted in pursuing an unsuccessful protection visa application, the exigencies of the sponsor’s relationship with his ex-wife, or the length of the relationship between the sponsor and the applicant amounted to compelling reasons.

   [3]     CB, 245-246.

8. After the hearing was completed the applicant’s migration agent provided post hearing submissions at the invitation of the Tribunal. This included two further statements from each of the applicant and her sponsor. The Tribunal concluded, having taken all the information into account, that there were no compelling reasons to refrain from applying the Schedule 3 criteria and accordingly it affirmed the decision of the delegate.

Applicant’s submissions

1. The applicant relied upon the materials in the Court Book, the affidavit of her solicitor dated 20 March 2020 which annexed a copy of the Tribunal transcript, and for the purpose of the Application in a Case only, the further affidavit of her solicitor dated 21 May 2020.

Ground one

1. The applicant referred to a failure to comply with s 425 of the Migration Act 1958 (Cth) (‘the Act’). That should have been a reference to s 360 of the Act which relates to reviewable decisions under Part 5.

2. The applicant accepted that she bore the onus of establishing that compelling reasons existed to waive the Schedule 3 criteria. Her submissions with respect to ground one were advanced on the basis of the principal that an applicant to a review is entitled to assume that the issues which were regarded as dispositive by the delegate will also be regarded as the issues for determination on review unless the Tribunal indicates otherwise. In practical terms that is what is meant by the wording of s 360(1) of the Act, “to give evidence and present arguments relating to the issues arising in relation to the decision under review.”  It was submitted that where there are issues about specific aspects of a claim which might be doubted by a review body but which were not doubted by the delegate at first instance, then the Tribunal should make an applicant aware of such matters and give them an opportunity to respond and expand on those aspects of their claims.  This is a matter that has been discussed in a number of authorities.  In this matter it was submitted that whilst the applicant and her sponsor raised the question of the sponsor’s health they did so only briefly and that topic was not the subject of any follow-up questions or a request for any further documentary or corroboratory evidence.  The same submission was made with respect to their evidence as to the sponsor’s business.  In the applicant’s submission that was particularly relevant from a procedural fairness point of view because of the apparently narrow focus brought to the hearing by the Tribunal member herself.  At an early stage in the hearing the Tribunal member (Ms Burke) made the following comments:

   “MS BURKE:        Sure.  I think that the issue that – really, the only pertinent issues is whether Mrs Lee knew that she didn’t have a visa.  That’s the pertinent issue.  So ---

   MS JARVIS:Yes.  And I understand that, also.”

3. The reference to “the only pertinent issue …” can only have had the effect of creating the impression in the mind of the applicant and her agent that this was the sole issue which the Tribunal would regard as being dispositive for the purpose of determining whether compelling reasons existed.  It was submitted that the unambiguous wording of that phrase would have been enough of itself to create that impression but that the failure to ask follow-up questions on any other topics reinforced that impression considerably.  The result was that the applicant was not provided with adequate notice that the Tribunal regarded other topics as being potentially dispositive of her claim.  It was submitted that this appears to have been acknowledged by the Tribunal member herself when she said:

   “… because my feeling at this point is that the oral evidence hasn’t been all that credible, and there’s been a focus by the review applicant and her husband on whether they were – whether she was ever knowingly unlawful, probably at the expense of all these other matters that they’ve put forward as compelling reasons.”[4]

   [4]     Applicant’s Outline of Submissions, filed 11 May 2020, [37.1].

4. Notwithstanding the fact that the Tribunal member did make a general observation about the role played by credibility issues on a review hearing, the effect of her earlier statements was to bring a very tight focus on the issues which she regarded as relevant for the purpose of determining whether compelling reasons existed and in doing so created a procedural unfairness, almost in the nature of a false sense of security for the applicant, that other issues were less relevant or irrelevant.  It was submitted that the procedural unfairness to the applicant was not cured by the post-hearing letter from the Tribunal requesting further information on the topics of the fire and the sponsor’s divorce and no other issues.  The materiality of the procedural unfairness is demonstrated by a fair reading of the Tribunal’s reasons because the issue of the sponsor’s health and the applicant’s support for his business was the subject of adverse credit findings and it was ultimately the applicant’s lack of credit which was dispositive of her claims in the mind of the Tribunal.  In the circumstances of this review, the applicant should have been invited to provide further evidence on those matters rather than having her attention specifically drawn to one aspect of her claims. Had the applicant been on notice of the significance that would be placed on the sponsor’s health and the assistance she gave him in his business, she could have provided further information. 

Ground two

1. This ground focused on the following passage in the decision record:

   “The Tribunal has considered the applicant speaks another language other than English.  The Tribunal has considered the applicant’s evidence that she works as an interpreter at the sponsor’s business.  The Tribunal is satisfied the applicant herself acts as interpreter, and knows the role of interpreters and how to access interpreters if required.  The Tribunal is not satisfied the applicant has been disadvantaged because English is not her first language.  The Tribunal is not satisfied that the applicant has not been aware of her visa status or of what application she was making because of any lack of fluency in English.”[5]

   [5] CB, 247 [29].

1. It was submitted that the applicant had provided information that she and her sponsor communicated with each other in a particular Chinese dialect.  The applicant was also able to speak Malay and Mandarin.  She did not claim to be able to read or speak English.  The Tribunal made an error of fact when it concluded that the applicant “acted as an interpreter”, that she knew the role of interpreters, and how to access interpreters if required.  This was a misunderstanding of the evidence of the applicant.  The effect of her evidence was that she would assist the sponsor by interpreting his instructions to his employees because he was unable to speak their language.  That was a materially different situation to the finding by the Tribunal “that she works as an interpreter at the sponsor’s business”.  That finding was asserted to have been fundamental to the finding made by the Tribunal that she had not been disadvantaged because of her lack of fluency in English, which was relevant to its finding that it was not satisfied that she was unaware of her status as an unlawful noncitizen for that reason.  The applicant submitted that there was no logical connection between the role she performed with the sponsor’s business and the conclusion about her ability to avail herself of an interpretation agency.  The applicant did not claim to be a qualified interpreter.  That finding was, it was submitted, integral to the overall assessment of the applicant’s credibility.  In effect, the applicant submitted that the Tribunal had, by misunderstanding her evidence, elevated the state of her knowledge about interpreters and her capacity to access one if required.

Ground three

1. One aspect of the applicant’s claims was that a fire had occurred at the property at which she resided in November 2013.  References were made in the evidence to the fire having occurred at their farm and also at their house which was not located at the farm.  The Tribunal found that the evidence was inconsistent as to whether there was a fire at all, and if so, where that fire had occurred.  The Tribunal concluded that no fire had occurred in 2013.

2. In the submission of the applicant, the Tribunal misunderstood the evidence on that matter.  That misunderstanding appears to be based on the following passage of evidence:

   “MS BURKE:  Okay. And did you have a fire on your farm?

   THE INTERPRETER

   (CHLOCHAISRI):                   There’s no fire. No fire at the farm. MS BURKE: And where is our farm? Penola?

   THE INTERPRETER

   (CHLOCHAISRI):                   Coonawarra.

   MS BURKE:Is that Coonawarra? MS JARVIS: Coonawarra.

   MS BURKE:Coonawarra.

   THE INTERPRETER

   (CHLOCHAISRI):                  Coonawarra. Yes. Coonawarra. Yes. The house is in Penola and the farm is in Coonawarra.”[6]

   [6]     Transcript (‘TX’), 18, cited in the applicant’s Outline of Submissions, filed 11 May 2020, [54].

3. Significantly, the sponsor’s statement provided after the hearing in response to the request from the Tribunal for further information about the fire, clearly indicated that it had been at their home and not at the farm.  When the evidence of the sponsor is considered in its entirety it is clear that he maintained there had been a fire but that it had not been at the farm.  This was a material error because it was a significant matter relied on by the Tribunal to underpin the findings of credit which ultimately led to its finding that there were no compelling reasons to waive criterion 3001.  The error caused the Tribunal to fail to conduct a review according to law.

4. With respect to each of the grounds, the applicant submitted that a material error had been made which deprived the applicant of a successful outcome at the hearing.  The applicant submitted that her complaints with respect to the findings of credit could not be dismissed as simply an example of a matter of fact which was solely within the province of the Tribunal.  In doing, so the applicant pointed to the inherently impressionistic nature of findings on matters of credit.  It was not possible when considering the various findings on credit made by the Tribunal to conclude that any of them would not have had a material effect on the outcome.[7]

   [7]     Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562, [44]-[45].

First Respondent’s submissions

1. With respect to ground one, the first respondent submitted that it would have been clear to the applicant from the decision that the overall issue before the Tribunal was whether or not there were compelling reasons for not applying the Schedule 3 criteria on the basis of the evidence that had been adduced before the delegate. In that regard, it was significant that the delegate’s decision expressly noted the absence of any documentary evidence to support the applicant’s claim that her sponsor needed her assistance in order to manage his business. In rejecting the applicant’s claim as to the role she played in managing her husband’s medical condition, the delegate had specifically made reference to the deficiencies of the medical evidence provided in support of that matter. For that reason, from the date of the delegate’s decision the applicant was on notice that those two matters would be issues in the review.

2. I note that further to those matters, the delegate made clear that the evidence with respect to her husband’s inability to obtain a divorce prior to October 2015 was inconsistent with the applicant’s own claim that she and her sponsor were committed to a shared life together to the exclusion of all others from July 2010.[8] The delegate regarded the information in that regard as limited and inconsistent with the claimed duration of the relationship and specifically found that the existence of a genuine relationship was not a compelling reason to waive the Schedule 3 criteria.

   [8]     CB, 92.

3. It was submitted that there was nothing inadequate or out of the ordinary about the invitation extended to the applicant by the Tribunal because it clearly indicated that it was unable to make a favourable decision based on the information provided. That information included the information that was before the delegate and the decision record of the delegate. The invitation explained that one of the issues would be whether the applicant complied with the requirements in Schedule 3 and if not whether compelling reasons existed for not applying them. The applicant was invited to provide any additional material on which she sought to rely.[9]  Having been put on notice of those matters by the Tribunal, it was submitted that it is relevant that prior to the hearing the applicant’s representative provided written submissions.

   [9]     Ibid, 138.

4. The first respondent submitted that the applicant was clearly on notice by reason of the decision of the delegate that the documentary evidence she had provided about the sponsor’s illness was insufficient and there was no further medical evidence provided to the Tribunal either before during or after the hearing.  The same can be said of information with respect to the sponsor’s business or the applicant’s role in relation to it.

5. Further, it was submitted that the Tribunal placed the applicant on notice that her credibility at large was in issue.[10] 

   [10]   TX 9, line 35; 16, line 25; and 22, line 15.

6. In the submission of the first respondent, the reference by the Tribunal member to “the only pertinent issue” occurred in the context of a discussion about the applicant’s previous review by the RRT.  The Tribunal member made the applicant aware that she had obtained a copy of that decision.  The passage impugned by the applicant, read in context of the transcript as a whole, occurred after the representative of the applicant indicated that she would like to take instructions on whether the applicant wished to comment on the RRT decision and whether it was necessary to obtain that file from the Department.  The comment on the Tribunal member should properly be understood to have indicated that the only pertinent issue (with respect to the RRT decision and file) was whether the applicant knew that she did not have a visa.  The first respondent notes that the Tribunal adjourned for a short period specifically to enable those instructions to be obtained.

7. In that context, it could not properly be contended that the applicant was given insufficient or no notice of the issues that would be regarded as dispositive at the hearing.

8. With respect to ground two, it was submitted that the only observation that was being made in the relevant passage of the decision record was that, having been aware of the need for proper interpretation when language difficulties arose by virtue of the role she claimed to have played in the sponsor’s business, the Tribunal’s explanation that the applicant’s lack of proficiency in English could not have been a barrier because she would have been aware of the importance of seeking assistance with interpretation when signing documents written in English.  It was submitted that it is clear that the Tribunal did not misunderstand the effect of the evidence given by the applicant in that regard.

9. As to ground three it was submitted by the Minister that the Tribunal considered all of the evidence with respect to the fire and that the conclusion it reached as to inconsistencies in that evidence was open to it.

Consideration

1. It is helpful to keep in mind the obligation of the Tribunal when extending an invitation to attend a hearing. Section 360(1) provides as follows:

   “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

2. The hearing requirement focuses on the need for material relating to the issues arising for determination by the Tribunal.  As acknowledged by the applicant, it is well established that if the issues arising before the Tribunal are the same as those found to be dispositive by the delegate, then notice will be deemed to have been given.  The principle was succinctly stated by the High Court as follows:

   “The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”[11]

   [11]   SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300 [35].

3. In that context, the applicant was on notice by virtue of the decision of the delegate that the overarching issue arising in relation to the decision under review was whether she was able to meet the requirements in Schedule 3 and if not, whether there were compelling reasons to waive criterion 3001. In particular, the applicant was on notice that the documentary evidence she had provided with respect to both the medical issue and the significance and role that she had played in the sponsor’s business had been found to be insufficient. The applicant’s representative provided the Tribunal with a response to the hearing invitation.[12] That document simply indicated that the applicant would be calling one additional witness - her sponsor. The written submission provided by the applicant’s representative prior to the Tribunal hearing submitted three matters which was said to amount to compelling reasons to justify waiving the Schedule 3 criteria. They were firstly, that the relationship between the applicant and her sponsor was lengthy, spanning the seven years they had lived together as a committed couple in Australia with three years living in an exclusive relationship prior to the applicant coming to Australia. Further, it pointed to the adverse effect on the sponsor should the applicant be required to depart Australia due to his strong reliance on her with respect to the management of his health issues and the running of his Australian business. The submission to the Tribunal also informed it that the applicant had never claimed to be entitled to a protection visa notwithstanding the fact that she had signed relevant documents applying for a protection visa. The intention was to apply for a partner visa and she had understood that it was that form of visa which her previous agent had applied on her behalf.[13]  The submission also put the Tribunal on notice that the applicant claimed that a document she had provided to the Department headed ‘Statement of Compelling and Compassionate Circumstances’, dated 27 December 2015, and signed by her, was inaccurate because she denied, contrary to what was stated in that document, that she had knowingly applied for a protection visa or that she became aware of her unlawful status in March 2012.  The submission asserted that the length of the applicants unlawful status in this country was attributable to her reliance on bad migration advice; her own error in not being more active to ensure that she applied for the correct visa; her failure to make enquiries on the progress of the application; and her mistaken belief as to the nature of the visa for which she had previously applied.  These matters were attributed to her lack of proficiency in English.

   [12]   CB, 163.

   [13]   CB, 186.

4. It is significant that the pre-hearing submission of the applicant did not make any reference to the lack of supporting documentation which had been regarded as a significant matter by the delegate.  Nor were any further documents on those issues provided with the written submissions.  It does not appear that any attempt to provide documents of that kind to the Tribunal was made either at the hearing or by way of the post hearing submissions.

5. In my view, there can be no doubt that the applicant was on notice that matters pertaining to her credit at large, and specifically with respect to the deficiencies in her evidence, as found by the delegate, were in issue for the purpose of the Tribunal hearing.  No further notice of those matters was required prior to the Tribunal hearing.

6. I have considered the transcript of the hearing.  At an early stage of the hearing, the Tribunal raised with the applicant’s representative the issue of the previous application for a protection visa.[14]  The member made the observation that it was an important factor if an applicant had been unlawfully in the country for five years, but noted that if they believed they were lawfully in the country it was “a fairly different issue”.  She informed the applicant that she had obtained a copy of the decision record of the RRT.  In the course of doing so she summarised the claims that had apparently been made in support of the application for the protection visa.  The member then continued and advised that she regarded the issue of whether the applicant thought she had a visa to stay in Australia or not was an issue of credibility.[15] She concluded that the issue would not be resolved by her obtaining the full Department file relating to that application. The member then gave the applicant an opportunity to make a comment about whether any further documents relating to that earlier application should be obtained. The applicant’s representative indicated in the context of that invitation that she would take instructions on that matter and on whether the applicant wanted to proceed on that day to make submissions with respect to the Schedule 3 criteria noting that they were, “just trying to make good use of our time ...”[16]  It was immediately following that exchange that the Tribunal member made the comment about, “the only pertinent issue”, to which I have referred above.  A five minute break then occurred to enable the applicant to provide instructions to her representative.  When the hearing resumed the representative confirmed that the evidence on which the applicant sought to rely with respect to that matter was in essence the summary that she had provided already in her written submission, and that she had not known otherwise until 2015 when she consulted a migration agent after she married the sponsor.[17]

   [14]   TX, 3-6.

   [15]   Ibid, 9, line 39.

   [16]   Ibid, 10, line 12.

   [17]   Ibid, 11, lines 15-25.

7. In my view, the context of “the only pertinent issue” remark was clearly a reference only to the potential relevance of any further information that might be obtained from the Department file with respect to the protection visa application to the question of whether the applicant knew that she was unlawfully in this country from 2012, or in any event at some time prior to consulting the migration agent in 2015.  I am not satisfied that the remarks of the Tribunal member had the effect of narrowing the focus of the hearing or giving a clear indication to the applicant that only that issue would be a material issue arising for determination on the hearing.  I am fortified in that view by the following passage in the transcript immediately following the applicant’s representative reaffirming the applicant’s position as to her lack of knowledge of her unlawful status where the member said as follows:

   “So what that means, as far as I understand it, Mrs Lee, is that you did not hold a substantive visa from 11 October 2010, but you’re going to give some evidence that you thought you did.  No.  Now, the importance of that is that, when you apply on-shore, in Australia, for a partner Visa, if you are not the holder of a substantive visa, you need to demonstrate that there are compelling reasons for being able to apply on-shore.  Compelling reasons must be reasons that are so powerful or so persuasive that they persuade the decision-maker, which, today, is me, to not apply that requirement.  Compelling reasons can be more than one reason, and they can be reasons that can be accessed over t this he period of the application, not just at time of application (sic).  What is important is that this is not an assessment of the genuineness of the relationship; it’s only whether there are compelling reasons for being able to apply or lodge this application in Australia, rather than having to go off-shore.  All right.  So that’s what we’re going to discuss today … Now, what do you tell me are the compelling reasons in your situation?”[18]

   [18]   Ibid, 11, lines 29–46 (emphasis added).

8. At this point in the hearing, the preliminary issue having been dealt with, the applicant proceeded to give evidence, albeit brief, about the sponsor’s business and her role in it.  She also told the Tribunal about the length of her relationship with the sponsor, the fire which she said had occurred at their home and not on the farm, and her prior inconsistent statement to the Department that she became aware of her unlawful status in about March 2012.  She was then asked about the circumstances of the sponsor’s divorce and she told the Tribunal that even though his ex-partner had been separated from the sponsor for a lengthy period she had refused to sign the divorce papers.  It was at that point that the Tribunal member told the applicant that she did not think that she was being truthful “about any of this”.[19]  The Tribunal member then told the applicant about those matters with respect to which she regarded her as being untruthful.  The applicant responded to that assertion.

   [19]   Ibid, 12-16.

1. I am not satisfied that it has been demonstrated that the Tribunal failed to conduct a review as required by failing to put her on notice that the dispositive issues would include the implications of the sponsor’s health conditions or the extent of his reliance upon her in running his business and the consequent hardship he would suffer if she were to be required to leave this country.  The applicant knew that those issues had been regarded by the delegate as significant matters contributing to the conclusion that she had not been able to demonstrate compelling reasons to waive criterion 3001.  Those matters were raised by the applicant in her written submissions prior to the hearing and also in her oral evidence.  The Tribunal was not required to give the applicant a running commentary on its thought process.  There was nothing said by the Tribunal member that could have led the applicant to believe that those matters which had been regarded as so salient by the delegate were no longer relevant for the purpose of the review.

2. I dismiss ground one.

3. With respect to ground two, the impugned passage of the decision record concerns the process of reasoning by which the Tribunal member rejected the applicant’s claim that she had not been aware of her unlawful status until 2015.  The member said as follows:

   “The Tribunal has considered the applicant speaks another language other than English. (sic) the Tribunal has considered the applicant’s evidence that she works as an interpreter at the sponsor’s business.  The Tribunal is satisfied the applicant herself acts as an interpreter, and knows the role of interpreters and how to access interpreters if required.  The Tribunal is not satisfied the applicant has been disadvantaged because English is not her first language.  The Tribunal is not satisfied that the applicant has not been aware of her Visa status or of what application she was making because of any lack of fluency in English.”[20]

   [20] CB, 247 [29].

4. As submitted by the first respondent, the Tribunal did not make a finding that the applicant had formal qualifications as an interpreter or that she was employed by an interpretation agency.  On the basis of the applicant’s evidence there can be no criticism of the observation that the applicant herself acted in the role of an interpreter.  Nor could there be any criticism of the observation that she knew the role of interpreters. 

5. Whilst there was no direct evidence that the applicant knew how to access interpreters if required, the Tribunal had already rejected the applicant’s claim about her lack of knowledge of the protection visa process that had been undertaken on her behalf.[21]  In doing so, it considered the information provided in the protection visa application form and the fact that the applicant had been represented and signed documents in English.  As was apparent from the transcript of the hearing, the decision record of the RRT detailed specific claims made with respect to that application, which given the finding it made, this Tribunal must have regarded as having come from the applicant’s instructions to her former migration agent.  It was the applicant’s own case that she was not fluent in English.  The applicant’s instructions with respect to that application must presumably somehow have been translated into English.  Whether that was the case or not, this was the background against which the Tribunal made its finding about the applicant knowing how to access interpreters.  I am not satisfied that the impugned finding was in the circumstances one that no reasonable, rational or logical decision maker acting reasonably, rationally and logically could have arrived at on the same evidence.[22]  In any event, it was a finding made in addition to the findings about her understanding of the importance of interpretation which ultimately lead to the credit finding as to her state of knowledge about her unlawful status.  I note also that one of the facts tending against accepting the applicant’s evidence about when she first came to know of her illegal status was the statement in her ‘Statement of Compassionate and Compelling Circumstances’ that she became aware of her illegal status in 2012.[23]  The conclusion on that matter was open to the Tribunal and not unreasonable, irrational or illogical.[24]

   [21] CB, 246 [22].

   [22]   Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [130].

   [23]   CB, 280.

   [24]   CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 [60]-[61].

6. I dismiss ground two. 

7. As to ground three, in the applicant’s ‘Statement of Compassionate and Compelling Circumstances’ she referred to the fire as the ‘farm fire’.[25]  In statements provided in support of the application for the visa both the applicant and the sponsor said that the fire occurred at the farm.[26]  The delegate accepted that the fire occurred ‘in the farm’.[27]  In the hearing the sponsor told the Tribunal that there was no fire at the farm.[28]  In a statement prepared before, but not provided until after the hearing, the applicant did not correct the delegate’s finding about where the fire occurred and made no reference to it.[29]  In statements provided after the hearing, both the applicant and the sponsor stated that the fire occurred at the house.[30]  After noting that the sponsor had said in evidence that there was no fire at the farm, the Tribunal indicated it had considered the different versions on that matter given at different times.[31]  In my view, a fair reading of that passage does lead to the conclusion that the Tribunal did not have regard to the evidence provided after the hearing.  It suggests otherwise.  It was open to the Tribunal member to conclude that she did not accept that there had been a fire.  She was not required to specifically detail every piece of evidence on which she relied to reach that conclusion.  The evidence to the contrary was not misapprehended, it was simply not accepted.  No jurisdictional error has been demonstrated and I dismiss ground three.

   [25] Ibid.

   [26]   CB, 45-46.

   [27]   Ibid, 92.

   [28]   TX, 14, line 24.

   [29]   CB, 220-223.

   [30]   Ibid, 229-235.

   [31] Ibid, 246 [24].

8. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 28 May 2020