MOKTAN v Minister for Immigration

[2019] FCCA 2687

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOKTAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2687

Catchwords:
MIGRATION – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider all the applicants claims and all material evidence before it.

WORDS AND PHRASES – Compelling reasons.

Legislation:

Migration Act 1958 (Cth), ss.5F, 474
Migration Regulations 1994 (Cth), reg.1.15A, cls.820.211, cls.3001, 3002, 3004 of sch.3

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166
Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252
Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780

Applicant: ROBIN MOKTAN

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 997 of 2019

Judgment of: Judge Cameron

Hearing date: 29 August 2019

Date of Last Submission: 29 August 2019

Delivered at: Sydney

Delivered on: 24 September 2019

REPRESENTATION

Counsel for the Applicant: Ms M. Yu

Solicitors for the Applicant: Juris Australia

Solicitors for the Respondents: Ms M. Donald of Sparke Helmore

ORDERS

1. A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 25 March 2019.

2. A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 12 November 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 997 of 2019

ROBIN MOKTAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia in 2008.  On 12 January 2015 he lodged an application for a Partner (Temporary) (Class UK) visa with what is now the Department of Home Affairs (“Department”).  The applicant’s application was refused by a delegate of the first respondent (“Minister”) on 6 November 2015.  The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) and on 26 April 2016 the Tribunal affirmed the delegate’s decision (“First Tribunal Decision”).

2. On 29 September 2017 consent orders were made quashing the First Tribunal Decision and remitting the matter for determination according to law.

3. On 25 March 2019 the Tribunal again affirmed the delegate’s decision.  On 18 April 2019 the applicant filed an application in the Court seeking review of that decision.

4. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

LEGISLATION

1. At all material times s.5F of the Act provided relevantly as follows:

   5F     Spouse

   (1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   …

2. At all material times reg.1.15A of the Migration Regulations 1994 (“Regulations”) provided relevantly as follows:

   1.15ASpouse

   (1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   …

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters of subregulation (2) are:

   (a)the financial aspects of the relationship …

   (b)the nature of the household …

   (c)the social aspects of the relationship …

   (d)the nature of the persons’ commitment to each other …

3. At all material times cl.820.211(2) of the Regulations provided relevantly as follows:

   820.21—Criteria to be satisfied at time of application

   820.211

   …

   (2)An applicant meets the requirements of this subclause if:

   (a)the applicant is the spouse or de facto partner of a person who:

   (i)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)     is not prohibited by subclause (2B) from being a sponsoring partner.

   …

   (d)in the case of an applicant who is not the holder of a substantive visa ...

   …

   (ii)     the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   …

4. At all material times criterion 3001 of sch.3 to the Regulations provided relevantly as follows:

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   …

   (c)if the applicant:

   (i)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; …

   …

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   …

BACKGROUND FACTS

1. The Tribunal relevantly summarised the facts alleged in support of the applicant’s application for a Partner (Temporary) (Class UK) visa as follows:

   a)the applicant came to Australia in 2008 from Nepal on a student visa.  After 2009 he no longer pursued his studies and his visa expired in July 2010. Due to “circumstances” in Nepal he remained in Australia.  He married his sponsor, who was also of Nepalese nationality, in December 2014. She had arrived in Australia in 2008 and had become a permanent resident in 2013;

   b)the couple met at Central College Redfern in February 2009. The applicant initially told the Tribunal that his sponsor had married another man named Kripa and that he and his sponsor had only commenced their relationship after her divorce in 2014. In the applicant’s submissions he claimed that his sponsor had relied upon him emotionally as her previous relationship had been abusive;

   c)subsequently, the applicant told the Tribunal that he and his sponsor had in fact been in a relationship since they met and that his sponsor had only married Kripa to allow him to obtain a visa and that they had divorced after he had.  The later explanation was confirmed by the applicant’s sponsor who also admitted that her previous relationship with Kripa had not been the subject of any domestic violence;

   d)the applicant had lived with the sponsor prior to and after their marriage. While the sponsor had been the main financial contributor to the relationship, the applicant had worked on a casual basis and the couple shared living expenses, a joint bank account and domestic duties. They both wanted to start a family but had been seeking medical advice due to the sponsor’s health. The applicant said he had provided the sponsor with emotional and psychological support when her sister had died, after the Nepalese earthquake, and by attending doctor appointments and taking her to hospital when necessary;

   e)despite their shared nationality, the sponsor said that she could not return to Nepal if the applicant were to apply for a visa offshore because it would adversely impact on her career, financial obligations, her health and their attempts to start a family.

The Tribunal’s decision and reasons

1. After describing the claims made by the applicant and the evidence before it the Tribunal affirmed the delegate’s decision.  Its decision was based on the following findings and reasons:

   a)the Tribunal found that the applicant and sponsor had been validly married for the purposes of the s.5F(2)(a) of the Act;

   b)the Tribunal was also satisfied that the applicant and his sponsor met the requirements of a spousal relationship under reg.1.15A(3) of the Regulations and s.5F(2) of the Act because they had been living together since at least 2014, had shared financial assets, and had relied upon each other for “companionship and emotional support”;

   c)the Tribunal noted the sponsor’s evidence that she had only been in her previous relationship to allow her former husband to obtain a visa and stated that this “reflect[ed] poorly on, in particular, the sponsor’s integrity and credibility” but accepted that it had not been a fact in issue in the current application. Ultimately, the Tribunal was satisfied that the applicant met the criteria in cl.820.211(2)(a);

   d)however, because the applicant had not held a substantive visa when lodging his application for a partner visa, he was required to meet criteria 3001, 3003 and 3004 of sch.3 to the Regulations unless the Tribunal was of the view that there were “compelling reasons” for not doing so;

   e)the Tribunal found that the applicant had not met criterion 3001 because he had not lodged his application for a partner visa within 28 days of the date that his last substantive visa expired (being 7 July 2010). The Tribunal then considered whether there were “compelling reasons for not applying the criteria”;

   f)the Tribunal had regard to the applicant’s evidence and submissions concerning the existence of compelling reasons. Although the Tribunal found that the applicant and his sponsor had been in a long term relationship and a “genuine spousal relationship” and were wishing to start a family, it did not believe that these reasons were sufficiently compelling to not apply the sch.3 criteria;

   g)the Tribunal found that the applicant had, predominantly, been financially dependent on his sponsor.  Their desire to buy a house together was also not held to be a compelling reason. The Tribunal acknowledged the “emotional hardship” which would be caused to the couple by separation if the applicant applied for a visa offshore but found that there was nothing unique in the sponsor’s circumstances which made her dependent upon the applicant;

   h)the applicant’s evidence as to why he did not depart Australia after expiration of his visa in 2010 was that his parents asked him not to return because of “(unspecified) circumstances” in Nepal and he had met the sponsor. The Tribunal did not find these reasons compelling. Furthermore, the applicant and his sponsor’s evidence was that they had, at this time, already been in a relationship albeit the sponsor had married a different man for visa purposes. While no determinative finding was made about the sponsor’s previous relationship, the Tribunal found that the parties’ involvement in a contrived relationship impacted on their “credibility and integrity” and found this relevant to whether there were compelling factors justifying waiver of the sch.3 requirements. It viewed their actions in this connection “most unfavourably”;

   i)the Tribunal found that the applicant had had numerous opportunities to commence an application offshore, but chose not to and therefore the Tribunal found that a long term relationship with the sponsor was not a compelling reason to not apply the criteria outlined in sch.3;

   j)having regard to all the circumstances, the Tribunal was not satisfied that there were compelling reasons to waive the sch.3 criteria. Therefore, the applicant failed to meet cl.820.211(2)(d)(ii) and as a result failed to meet the requirements of a Partner (Temporary) (Class UK) visa.

PROCEEDINGS IN THIS COURT

1. In his further amended application the applicant alleged:

   1.The Second Respondent (the Tribunal) erred by failing to consider claims arising on the material before it.

   a.The Tribunal, at [48] of its decision (CB 384) found that the reasons given by the Applicant for remaining in Australia without a valid visa were not compelling.  Relevantly the Tribunal found that the reasons given by the Applicant included that his ‘parents did not want him to come back to Nepal due to (unspecified) circumstances there’.

   c.In finding that there was no compelling reason for waiving the Schedule 3 criteria in the present case, the Tribunal did not consider the claims made by the Applicant at the Tribunal hearing before Member Sripathy, which were to the effect that:

   i)      the Applicant had spoken to his parents and they did not want him to return to Nepal as they feared for his life due to the civil war. kidnappings and extortion that were occurring in 2011 and 2012; and

   ii)     the Applicant had been previously advised by a lawyer that he would be subjected to a three-year ban from lodging another visa application, and he was unaware that this advice was incorrect until the matter was raised during the Tribunal hearing with Member Sripathy.

   d.The Applicant's claims and evidence as referred to above in (c) were material to the determination of whether there was a compelling reason to waive the Schedule 3 criteria, such that the Applicant could meet the criteria for the grant of a Subclass 820 Partner visa. Consequently the Tribunal’s decision was affected by jurisdictional error.

CONSIDERATION

The meaning of “compelling reasons

1. Clause 820.211(2)(d)(ii) of the Regulations had the effect in the circumstances of this case that the applicant had to meet the requirements of criteria 3001, 3003 and 3004 unless the Triubnal was satisfied that there were compelling reasons for not applying those criteria in his case. In Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166 on appeal from this Court, Gleeson J considered the meaning of expression “compelling reasons” in cl.820.211(2)(d) and said at [24]:

   In order to find “compelling reasons”, the Tribunal was required to identify reasons that would “force or drive” it to decide that the Sch 3 criteria should not apply to Mr Ali: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64/2015) at [31] (French CJ, Bell, Keane and Gordon JJ) and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [21]. Furthermore, as Gageler J put it in Plaintiff M64/2015 at [64] (citations omitted):

   A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” – “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible. 

Submissions

Applicant

1. The applicant argued that the Tribunal erred by failing to consider claims made or evidence given at its hearing to the effect that:

   a)his parents had said to him that they did not want him to return to Nepal as they feared for his life because of the Nepalese civil war as well as kidnappings and extortion that were occurring in 2011 and 2012; and

   b)he had been previously advised by a solicitor that he would be prevented for three years from lodging another visa application, and he was unaware that this advice was incorrect until told by the presiding member during the Tribunal hearing.

2. In relation to the first of those points the applicant relied on the following passage from the Tribunal’s reasons for decision:

   48.The Tribunal has also considered the circumstances of the applicant’s past migration history and the applicant and sponsor’s disclosure that the sponsor’s relationship with her previous husband was never genuine and was contrived for the purposes of securing him a visa.  The applicant’s student visa expired in July 2010 and he remained in Australia without a valid visa until the present application was lodged in January 2015.  His given reasons for his stay in this period, which the Tribunal does not find compelling, are that parents did not want him to come back to Nepal due to (unspecified) circumstances there, and he met the sponsor. (emphasis added)

3. In relation to his second point, the applicant referred to the following passage from the Tribunal’s decision:

   49.The applicant has had numerous opportunities during the course of this application to depart Australia and commence an application offshore. He could have done this when the Department first refused the application on the basis of not being satisfied there were compelling reasons for not applying the Schedule 3 criteria in November 2015. He could have done it again when the first Tribunal affirmed that decision in April 2016. Before the present Tribunal he has admitted that the sponsor was involved in a contrived relationship which led to the grant of a partner visa to a third party, and that he and the sponsor have been in a genuine relationship throughout the period of her claimed previous relationship and seeks to argue that their long standing genuine relationship is a compelling reason to waive the Schedule 3 criteria in this case. For these reasons the Tribunal finds the circumstance of a longstanding relationship is not a compelling reason to waive the Schedule 3 criteria in the present case. (emphasis added)

4. The applicant relied on the following exchanges recorded in the transcript of the Tribunal hearing to support his contention that the Tribunal had failed to consider all his claims and evidence:

   MEMBER:Okay. Then after that did you apply for any other visas?

   MR MOKTAN:   No, I couldn't apply for it.  Actually, like, at that time I was talking to my parents to come in, like, to the house - going back to the country, right, and because of - there was war going on and there was things - civil war was going on there, my parents wanted me to stay here in Australia so I could be safe and sound. (T9) (emphasis added)

   …

   MR MOKTAN:   So, like, the thing was like I didn't want to separate with her. Before that I will start from the beginning, right? So like when my visa was being, like, when I was (indistinct) I actually spoke with my parents a couple of times after that.  Back in - I would say back in 2011 and 2012 as well and there was still existing war going on in my country so they have seen my friends getting kidnapped, extortion and things like that.  So they were still fearful for my life- feared for my life and that's why they still wanted me to stay here until everything gets settled down.  In between I met her so we fell in love.  That's why I didn't want to go back to the country.  You asked me, like, why didn't I go back to the overseas and apply for the visa because if I had gone overseas and applied for the visa, they would be like three years (indistinct) for me to apply for the visa.

   MEMBER:Who told you that?

   MR MOKTAN:   The lawyers.

   MEMBER:That's actually not correct information.

   MR MOKTAN:   That's the thing.  I didn't get the right information from the people, like, I'm seeking help with.

   MEMBER:That's problematic because in fact that is not

   
   

   valid. Did you go to the Department and discuss it?

   MR MOKTAN:   Actually I went to the lawyers from the immigration itself.  The lawyer - they say that we work for the immigration so we are the immigration lawyer.  That's what has happened.

   MEMBER:Did you discuss it with the Department of Immigration?

   MR MOKTAN:   I didn't because I (indistinct).

   MEMBER:It is quite unfortunate because there is no such thing as a three year exclusion for a partner visa application and in fact had you done that - - -

   MR MOKTAN:   If I would have known that it would have been a lot easier for me to stay here in this country and then make myself - - - (emphasis added)

   …

   MEMBER:There have been many opportunities for you to get advice – the correct - do you know now the - that that information was incorrect?

   MR MOKTAN:   Was incorrect?  I know now because, like (indistinct) telling me- - -

   MEMBER:When did you find that out now?

   MRMOKTAN:    Just now.

   MEMBER:What do you mean just now?

   MR MOKTAN:   Because I have been to different lawyers, right?  Different lawyers had different opinions.  Like, I went to the - this lawyer (indistinct) and there was another lawyer called [X]. There was another lawyer called [Y]. He was from - - -

   MEMBER:Who told you- this application (indistinct).  So when you lodged this application he told you that there was a three year ban, lodge it now.

   MR MOKTAN: Yes. Yes, that's what he told me

1. The applicant submitted in relation to his first point that he had given clear oral evidence to the Tribunal that he had not returned to Nepal (initially) because of the civil war there and because his parents had wanted him to remain safe from the kidnappings and extortions that were taking place at the time.  He argued that the Tribunal's description of this evidence as:

   … that parents did not want him to come back to Nepal due to (unspecified) circumstances there …

   mischaracterised his evidence.

2. The applicant submitted in relation his second point that he had  remained in Australia and applied for his partner visa onshore based on solicitors’ advice that he would be subject to a three-year ban on being able to apply for another visa were he to have gone overseas to make the application.  He submitted that it was clear from his exchange with the presiding member recorded at pages 28-29 of the Triubnal transcript that he had been unaware until the Tribunal member told him so during the hearing, that that advice was incorrect.  He further submitted that the Tribunal had not taken that evidence into account when reflecting on why he had not left Australia and applied offshore.

3. The Applicant submitted that the claim and the evidence which he said had not been considered by the Tribunal were material to its determination as to whether there were compelling reasons to waive the sch.3 criteria. He argued that if his claims and evidence had been considered as the law required, the outcome of the Tribunal's decision might have been different which had the consequence that the Tribunal’s decision was affected by jurisdictional error.

Minister

1. For his part the Minister submitted in relation to the first issue that in circumstances where the Tribunal had stated that it had:

   … carefully considered all of the submissions and arguments made in the course of the application as to the compelling reasons for not applying the Schedule 3 criteria in this case … ,

   its reasons were otherwise comprehensive and it had noted that the applicant’s parents had not wanted him to return to Nepal, the Court should not infer from the way the Tribunal expressed itself that it had failed to have regard to the applicant’s evidence concerning the reasons for his parents’ concern about him returning to Nepal.  He also referred to a passage at page 40 of the Tribunal transcript where the applicant is recorded as having said:

   MR MOKTAN:   … . So there were a lot of things happening in my old life and I couldn't go back to the country because of war and things.  I couldn't decide where to go and where to get the solutions from.  I was looking for the people.  So that's the only reason, like, I've been stuck here.  To be honest with me I wanted to have a better life with her.  …

2. The Minister argued that the applicant had not given the Tribunal any specific details of his parents’ concerns and had not elaborated on the “civil war” or the kidnappings and extortion to which he said his parents had referred.  It was submitted that the Tribunal had taken the circumstances in Nepal into account but had not found that they provided a compelling reason for the applicant continuing to be in Australia once his student visa had expired.

3. The Minister argued that characterising the applicant’s evidence as to why he did not return to Nepal as “unspecified” was not inaccurate and had been open to the Tribunal.

4. As to the second issue, the Minister submitted that the transcript of the Tribunal hearing revealed that the Tribunal had been aware of what the applicant had said regarding his belief that if he were to leave Australia he would be prevented for three years from applying for a visa. 

5. It was further submitted that in any event the Tribunal’s view had been much affected by the involvement of the applicant and his sponsor in a contrived marriage arrangement whereby the sponsor had participated in a sham marriage to assist a friend obtain an Australian visa. 

6. The Minister submitted that although the Tribunal accepted the genuineness of the parties’ relationship, that did not provide a compelling reason to waive compliance with criterion 3001 in circumstances where the Tribunal was not satisfied that the sponsor was emotionally or psychologically dependent on the applicant.

Discussion

First issue

1. Despite the Minister’s arguments I do not think that one could reasonably describe the applicant’s allegations concerning his parents’ views on him returning to Nepal during its civil war as “unspecified”.  The relevant statement by the Tribunal was that his “parents did not want him to come back to Nepal due to (unspecified) circumstances there”.  The applicant had specified circumstances, being civil war, kidnapping and extortion.  No doubt further detail could have been supplied or sought but sufficient factual foundation for the sentiment allegedly held by the applicant’s parents was provided by the applicant to justify the assertion and so I conclude that the Tribunal mischaracterised the applicant’s evidence on this issue.

2. I also find that the mischaracterisation is sufficiently great, in that it was quite wrong, that the only reasonable explanation for it is that the applicant failed to consider the evidence in question. 

3. Notwithstanding these findings I am not persuaded that the Tribunal’s failure was material to its decision as to whether there were compelling reasons to forgive compliance with criterion 3001:  Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252 at 264 [48], Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at 788 [30], [31]. The reason for the applicant not returning to Nepal was only discussed as the background to the events which led to the Tribunal forming a negative view of the couple’s credit by reason of their participation in a visa scam. As the Tribunal said in para.48 of its reasons:

   … His given reasons for his stay in this period, which the Tribunal does not find compelling, are that parents did not want him to come back to Nepal due to (unspecified) circumstances there, and he met the sponsor.  On their own evidence, the applicant and sponsor’s relationship commenced in this period, and the applicant had knowledge of the sponsor’s arrangement to secure a visa (granted in November 2013) for a third person on the basis of a contrived relationship.  Their involvement in a contrived relationship is of concern to the Tribunal and reflects poorly on both of them with regards to their credibility and integrity. …

   It was background information only and not part of the relevant reasoning process.

Second issue

1. As to the second issue, the Tribunal’s reasoning is perplexing.  It criticised the applicant for not leaving Australia to make his visa application but had been given clear evidence which it did not query that he had not done so because he thought that the process would have been delayed by three years.  It can be inferred that the applicant thought that he would have to remain offshore throughout that period.  Criticism of the applicant’s failure to apply offshore in those circumstances would not be made by a reasonable Tribunal if regard were had to the applicant’s explanation.  The conclusion I draw is that the Tribunal did not have regard to the applicant’s evidence on this subject.

2. The significance of this issue lies in the fact that if the applicant had applied offshore he would not have been required to comply with criterion 3001.  Consequently, if his explanation for not having applied offshore was impressive, the Tribunal might have found it a compelling reason for not requiring the applicant to comply with the time limit imposed by the criterion. 

3. It is plain from para.49 of the Tribunal’s decision record that the applicant’s failure to leave Australia and apply offshore was part of the reason the Tribunal did not waive compliance with criterion 3001.  However, in that part of its reasoning, the Tribunal dealt with only one part of the applicant’s explanation for not departing Australia, his desire to be with his wife and their attempts to conceive.  The length of separation which the applicant had, until the Tribunal hearing, believed were involved in applying offshore, would, one must assume, have magnified the appeal of staying onshore and pursuing the present application.  However, the Tribunal made no reference to that when determining whether the parties’ genuine commitment to each other and desire to not be apart could provide a sufficiently impressive reason for not applying offshore.

4. If it had considered the applicant’s decision to not apply offshore by reference to his mistaken understanding of what that involved, the Tribunal might have reached a different conclusion on whether there were compelling reasons to forgive compliance with criterion 3001.

5. In those circumstances, the Tribunal’s failure to have regard to the whole of the applicant’s evidence on this subject leads to its decision being affected by jurisdictional error.

CONCLUSION

1. As jurisdictional error has been demonstrated, the Tribunal’s decision will be set aside and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 September 2019