Mulombwa v Minister for Immigration and Citizenship
[2025] FedCFamC2G 842
•5 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulombwa v Minister for Immigration and Citizenship [2025] FedCFamC2G 842
File number(s): SYG 2403 of 2020 Judgment of: JUDGE LAING Date of judgment: 5 June 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal engaged with the case put by the applicants in considering whether there were compelling reasons for not applying the criteria in Schedule 3 of the Migration Act 1958 (Cth) – writs issued Legislation: Migration Regulations 1994 (Cth) Sch 2, cl 820.211 Cases cited: BZM20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 145
Farhat v Minister for Immigration and Border Protection [2018] FCA 93
Karan v Minister for Immigration and Border Protection [2017] FCA 872
WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Division: General Number of paragraphs: 51 Date of hearing: 8 April 2025 Place: Sydney Counsel for the Applicants: Mr D Godwin Solicitor for the Applicants: Brett Slater Solicitors Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2403 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JONAS MULOMBWA
First Applicant
AQUILA MULOMBWA
Second Applicant
JOSHUA MOLUMBWA
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
5 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 24 September 2020 in case number 1819263.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Partner (Temporary) (Class UK) visas (partner visas).
BACKGROUND
On 28 March 2017, the first applicant (Applicant) applied for the partner visas that are the subject of this proceeding on the basis of his relationship with his sponsor (Sponsor). The second and third applicants applied as members of the Applicant’s family unit.
On 19 June 2018, the Delegate refused the application.
On 3 July 2018, the applicants applied to the Tribunal for review of the Delegate’s decision. The applicants attended a hearing before the Tribunal on 6 April 2020.
On 24 September 2020, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal considered that the issue before it was whether there were compelling reasons for not applying criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations). The Applicant was required to meet this criterion, unless there were compelling reasons for not applying it, as he did not hold a substantive visa at the time of application: cl 820.211(2)(d) of Schedule 2 to the Regulations. As his last substantive visa had ceased more than 28 days before his partner visa application, he was unable to meet criterion 3001. The Tribunal therefore considered whether there were compelling reasons for not applying the Schedule 3 criteria (at [13]-[23]).
The Tribunal summarised evidence before it at [24]-[31] of its decision. At [32]-[35], the Tribunal considered certain concerns it held regarding the Applicant’s conduct, as follows:
32.The Tribunal was concerned at inconsistent information the parties gave in relation to Ms Boyer’s Centrelink payments and allowed Mr Mulombwa time to provide clarification from Centrelink after the hearing. It is the Tribunal’s experience that Centrelink welfare recipients are required to disclose details of their spousal or de facto relationship. Centrelink take into account the income and asset details of both parties in a spousal or de facto relationship to assess the entitlement of the welfare recipient which ensures taxpayer resources are fairly distributed. At the time of this decision no clarification of the parties’ Centrelink history has been received by the Tribunal. The Tribunal is not satisfied Ms Boyer and Mr Mulombwa have disclosed their relationship to the appropriate authorities. The Tribunal is not satisfied Mr Mulombwa and Ms Boyer are credible witnesses and treats their evidence with caution unless supported by probable evidence.
33.The Tribunal has found Mr Mulombwa last held a substantive Student visa on 15 September 2014. The evidence of Mr Mulombwa and Ms Boyer is they commenced a committed relationship with each other in May 2014 and commenced their de facto relationship in February 2017 however Mr Mulombwa was included as the dependent spouse of his expartner in her visa application on 26 August 2014. Mr Mulombwa remained in Australia as the holder of Bridging visa granted in respect of the 26 August 2014 application until 30 March 2017, following the refusal of the application and the conclusion of the review and appeal process following that refusal.
34.The Tribunal does not consider the alleged poor representation by Mr Mulombwa’s migration agent, or his claim his agent should have given him better advice, to be a compelling reason not to apply the Schedule 3 criteria. The Tribunal acknowledges Mr Mulombwa’s suggestion he remained legally married to his ex-wife at the time of the 26 August 2014 application, however Mr Mulombwa and his registered migration agent knew his relationship with his exwife had ceased and he was no longer in a spousal relationship with her when the application was lodged.
35.The Tribunal does not accept Mr Mulombwa’s claim he has not intentionally circumvented or misrepresented his information to the Department. Misleading information was given to the Department when Mr Mulombwa’s ex-wife continued to claim him as a dependant spouse which enabled Mr Mulombwa to remain in Australia lawfully as the holder of a Bridging visa.
At [36]-[38], the Tribunal considered:
36.The Tribunal does not consider Mr Mulombwa’s claims he had a lot going on or that he was being ostracised in the community are compelling reasons not to apply the Schedule 3 criteria.
37.The Tribunal considered if the applicant’s claims that he substantially complied with his visa conditions and is a law-abiding citizen are compelling reasons to waive the Schedule 3 criteria. The applicant remained in Australia after his student visa ceased on 15 September 2014. The Tribunal accepts the applicant was lawfully in Australia because he was granted a bridging visa pending the determination of his visa application on 26 August 2014, however that visa application was made on the basis of false information. The applicant told the Tribunal that he has a police record and has breached community orders. The Tribunal does not accept the applicant’s claim that he substantially complied with his visa conditions nor that he is a law-abiding citizen.
38.Compliance with statutory and regulatory requirements, such as visa conditions, and being a law-abiding citizen are expectations of all community participants in Australia. The Tribunal gives no weight to the applicant’s submission these are compelling reasons for the Schedule 3 criteria to be waived.
The Tribunal then considered the Applicant’s business interests at [39]-[42]:
39.The Tribunal considered if the parties’ business interests are compelling reason to waive the Schedule 3 criteria.
40.Letters provided by the Mr Molumbwa’s accountant dated 15 April 2020 and APM employment services support Mr Molumbwa’s claim he has established a successful business as a disability service provider. The accountants letter suggests Mr Molumbwa’s company is on track to triple its income in the 2020 financial year. The Tribunal accepts the Mr Molumbwa has a business and is an employer of staff. The Tribunal accepts the Ms Boyer’s evidence Mr Molumbwa supports her in her Theatre school. Ms Boyer is supported financially as the recipient of an Australian Government welfare payment.
41.Mr Molumbwa and Ms Boyer said the second and third named applicants study and work in Australia.
42.The Tribunal accepts some financial hardship may be caused to Mr Molumbwa and Ms Boyer if Mr Molumbwa is required to go offshore to make his visa application. The Tribunal does not consider the parties’ business interests or the potential for the parties to experience some financial hardship to be a compelling reason to waive the Schedule 3 criteria.
At [43]-[51], the Tribunal considered the potential impact upon the Applicant’s family:
43. The Tribunal considered the impact on the applicant’s family.
44.Ms Boyer’s daughter Alyssia Boyer said, in her undated letter received after the hearing, her mother regained her happiness after meeting Mr Molumbwa and would be devastated if their life together was ripped away. Alyssia Boyer wrote Mr Molumbwa was a father figure to her and shown love and support to her and her mother for the better part of the decade she has known him. Mr Molumbwa had assisted her in her work. She had grown up with the second and third named applicants and was proud of their achievements.
45.The Tribunal accepts the Ms Boyer’s evidence, supported by an undated letter from Dr Sarah Tottle, that she suffers depression and back pain. Ms Boyer takes medication for her depression.
46.The Tribunal accepts Ms Boyer will experience some emotional hardship Ms Boyer if Mr Molumbwa is required to go offshore to make his visa application. The Tribunal considers it is commonly an emotionally difficult period for couples to be apart while their visa is decided.
47.Ian, Nina and George O’Doherty write in the unsigned letter dated 15 April 2020 there would be an enormous impact on Mr Molumbwa, Ms Boyer and a number of other lives if the visa is declined. Ian, Nina and George O’Doherty attest to Mr Molumbwa’s character.
48.The Tribunal acknowledges the parties involved will be affected emotionally if Mr Molumbwa is required to go offshore to make his visa application.
49.The Tribunal does not consider the emotional difficulty faced by Ms Boyer or Mr Molumbwa to be a compelling or compassionate reason to waive the requirement to meet the Schedule 3 criteria.
50.The Tribunal acknowledges the Mr Molumbwa’s claim to be a committed parent. The second and third named applicants’ mother continues to reside in Australia and, although the applicant says it’s not their preference, they could reside with her if he was required to leave Australia. The second and third named applicants are now adult and could apply for a visa in their own right. The Tribunal accepts the applicant being required to leave Australia to make a visa application would likely be a degree of emotional hardship to the sponsor, her father, and the second and third named applicants if they remained in Australia.
51.The Tribunal does not consider the potential impacts on the Mr Molumbwa’s family to be a compelling reason so as to waive the Schedule 3 criteria.
The Tribunal expressed that it had considered the evidence before it and “the totality of” the Applicant’s circumstances. The Tribunal expressed that, “[h]aving considered the circumstances singularly and cumulatively”, it was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal therefore found that the applicants were unable to meet the criteria for the partner visas and affirmed the Delegate’s decision (at [55]-[59]).
APPLICATION FOR REVIEW
On 22 October 2020, the applicants applied for judicial review of the Tribunal’s decision. The applicants relied upon the following ground of review:
1.The Tribunal failed to complete the exercise of its jurisdiction as it did not address the case the Applicant was making to it (compelling and compassionate claims):
Particulars
a.The Tribunal did not address the claim that the effect on the Applicant's clients was a compelling circumstance as the disability support service he provided was of a very high standard and he provides services to persons with behavioural problems that other providers would not take on as clients.
b.The Tribunal did not address the claim regarding the effect on the Applicant's partner’s father who was residing with them and the physical assistance the Applicant provided the father, which the Applicant's partner could not provide due to her back condition.
c.The Tribunal did not address the claim that a compelling circumstance was that the Applicant's partner's depressive illness would be aggravated should the Applicant have to depart Australia.
The effect upon the Applicant’s clients
The applicants observed that in his submission to the Department, the Applicant stated (at CB 225):
2.I have established a thriving and growing business in the disability space, being Perth Healthcare and Support Enterprise (PHASE) ( I have been contracted by the Disability Service Commission (DSC) and work on the National Disability Insurance Scheme (NDIS) to provide support services to people with disability. I have been invited to submit an application with the Northern Territory. This is the scope of our project expansion. I am contributing to society in a very big way. I play a big part of Ros' JETSAbility classes that teach dance, drama, and singing at the HBF Arena. With this initiative, we have created a space for young people living with a disability to access mainstream community events and programs. I have previously worked with the Joondalup Entertainers Theatre School camps, showcases, competitions and other events of a similar nature.
The Applicant subsequently stated (at CB 386):
…My disability business is going very well and so many clients rely on our services. We have now expanded to include 3 respite houses for challenging behaviour clients that have engaged our services as a last resort. We do offer what no other disability service can offer and that sets us apart from others.
A reference provided to the Tribunal by Jo Esteban of APM Employment Services stated (CB 379):
I am an Employer Account Manager with APM Employment Services, and we have just over 20,000 job seekers in WA referred by Centrelink to assist into employment. I am also the APM WA representative on the committee for the Care Sector Industry Event formed by the Australian Government Department of Education, Skills and Employment.
I have known Jonas Mulombwa since August 2019 and I have been assisting him with all his recruitment needs. I have placed many jobseekers in various roles within his business and continue to do so.
When our job seekers get employment, we continue working with them by doing post placement support to both employer and employee. I receive feedback from both the job seekers and employer about the job but also whether they need anything to assist them. I have received excellent feedback regarding Jonas as an employer. They’ve all mentioned how passionate and genuine he is with all his clients and how they enjoy their job. It has also been stated that PHASE is the best employer in this industry they have had…
This is a fast and growing industry and I know firsthand that as Jonas’s business grows, he will need our services even more. He is not just providing a service to his clients but also to the government, as these job seekers he employs then are either receiving less in benefits or none.
A letter from the Sponsor stated (CB 228):
I also help Jonas with his business, PHASE - Perth Healthcare and Support Enterprise as his admin person. I try and attend meetings with him and support all he does with his school holiday programs and weekend respite. Together we have made a difference in the lives of so many children in our area and beyond to be a part of something so special. We are continuing on working with NDIS to access funding to offer classes and respite for youth with disability who otherwise would have missed out on community access and inclusion.
At the hearing before the Tribunal, the Applicant gave evidence that his business “serve[d] the disability community” and was held in high esteem. The Applicant was asked how the community would be affected if the visa were not granted. The Applicant responded by referring to a shortage of quality operators in the industry. The Applicant stated that he specialised in challenging behaviour and that his business dealt with the high-end “skill of support”. He said that there was a “huge gap” in this area and that his business was dealing with “cases where other operator just washed off their hands and walked - walked away”. When asked about whether others could do the work, the Applicant again referred to a shortage of providers and explained that he was proud of the work they did and their track record. The Applicant subsequently stated that he would be sad “to lose the opportunity to serve the community in a big way”: transcript of the hearing before the Tribunal (Transcript), pp 15, 18-20 and 28.
The applicants submitted that the Tribunal’s reasoning made no attempt to address the claimed effect that non-waiver of the condition would have upon disability clients if the business had to close. In this manner, it was submitted that the Tribunal did not address the whole of the case put forward by the Applicant. The applicants also suggested that the Tribunal may have considered that evidence was required to demonstrate that others could not provide the services in order for there to be a compelling reason, “this being what it stated at the hearing”. If so, this was submitted to have demonstrated an unduly narrow understanding of what compelling reasons can be.
I accept the Minister’s submissions as to why this part of the ground is unable to succeed.
As set out above, the Tribunal considered the Applicant’s “business interests” at [39]-[42] of its decision. The Tribunal acknowledged evidence that the Applicant had established a successful business as a disability service provider that employed staff. The Tribunal acknowledged that the Applicant and Sponsor may experience some financial hardship if the Applicant were required to make the visa application offshore. The Tribunal concluded that it did not consider that the “parties’ business interests”, or the potential for them to experience some financial hardship, were compelling reasons for waiving the Schedule 3 criteria.
I accept the Minister’s submission that in referring to “business interests”, the intended reference was to a broad concept that encompassed all aspects of the business including its clientele and the effect of its operations. I do not accept the applicants’ submission that this description ought to be construed as being limited to the business itself, or its effect upon the Applicant, without regard to its effect upon clientele or the broader community.
The Tribunal’s assessment took place within the context of its reasoning at [26]. In that paragraph, the Tribunal considered the nature of the business as a disability service provider “assisting vulnerable people in the community”. The Tribunal expressly had regard to the Applicant’s evidence that his business specialised in dealing with clients exhibiting challenging behaviours. The Tribunal also expressly had regard to the Applicant’s evidence that there was a “shortage of quality providers”. It further referred to the work of the Sponsor’s theatre school (which the Tribunal accepted the Applicant supported at [40]).
I accept the Minister’s submission that, within this context, the most likely interpretation of the reference to “business interests” at [39]-[42] included consideration of what the Tribunal had considered at [26]. Although [26] did not set out in precise detail every aspect of the evidence that had been given regarding the business, this does not mean that the evidence was not considered.
Having regard to the above, I have not been persuaded that sufficient basis has been demonstrated for finding that any particular part of this evidence was not considered by the Tribunal. In particular, I have not been persuaded that the Tribunal failed to engage with the case made by the applicants regarding the business and the effect upon its clients as a compelling circumstance. Although the Tribunal did not determine, with precision, the effect upon the business’ clients if waiver did not occur, this was not conveyed, with precision, in the evidence or in the case put forward by the applicants.
I accept the Minister’s submission that the Tribunal engaged with the case and evidence that was put forward by the applicants regarding the business. It concluded that it did not give rise to a compelling reason for waiving the Schedule 3 criteria.
I do not accept that, in so reasoning, the Tribunal proceeded upon an impermissibly narrow interpretation of compelling reasons. The Tribunal’s questions at hearing about the ability of others to provide the services were not reasons given by the Tribunal: see BZM20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 145 at [41]-[43] (Judge Given). In any event, it has not been demonstrated how reliance upon the potential ability of others to provide services would have misconstrued “compelling reasons” (had the Tribunal so reasoned).
The Sponsor’s father
The applicants drew attention to evidence given at the hearing before the Tribunal regarding the Sponsor’s father, who lived with the Sponsor and the Applicant. The Applicant had referred to the father’s age and to him having “many underlying conditions”. The Applicant gave evidence that he took the father to almost all of his appointments and that the father was reliant upon his support as a male. The Applicant gave evidence that he believed that the Sponsor was limited in her ability to assist her father, due to her gender and back injury.
At [50] of its decision, the Tribunal accepted that the Applicant being required to make the visa application offshore would likely cause “a degree of emotional hardship” to persons including the Sponsor’s father. The applicants submitted that this did not address what was put forward regarding the physical assistance that the Applicant provided to the father.
I am not persuaded that the Tribunal failed to engage with the limited evidence provided regarding the Applicant’s assistance to the Sponsor’s father. At [26], the Tribunal referred to evidence regarding the Sponsor’s back injury. The Tribunal accepted evidence regarding the back injury at [45]. At [28], the Tribunal referred to the evidence regarding the father’s surgical procedure and the Applicant taking him to appointments. At [43], the Tribunal stated that it had considered the impact upon the Applicant’s family. Although the Tribunal referred to “emotional hardship” at [50], at [51] it concluded more generally that it did not accept that the “potential impacts” upon the Applicant’s family were a compelling reason for waiving the Schedule 3 criteria.
I accept the Minister’s submission that the Tribunal’s reasoning at [51] was dispositive and encompassed consideration of the physical assistance the Applicant claimed to have provided to the Sponsor’s father (which had been considered by the Tribunal at [28]).
The Sponsor’s depressive illness
At the hearing before the Tribunal, the Applicant gave the following evidence regarding the Sponsor’s depressive illness:
[438]MR MULOMBWA: Yeah. Also - also, my partner Ros, have depression. So, she's found me to, uh, I - uh, I am her support network in that respect. She got severe, um, depression. So I-I, um, look after her.
[439] MEMBER: I haven't got any medical evidence about that.
[440] MR MULOMBWA: Okay, well, I - I will send it over. I will email it to you.
The Sponsor gave the following evidence:
[657][THE SPONSOR]: … And, you know, I've struggled -1 don't want people to know this, but I've struggled with depression a long time. And, um - I don't like people to know that.
[658] MEMBER: Are you seeing a doctor?
[659] MS BOYER: Yeah, I'm on anti-depressants.
Can you make sure my dad doesn't come up?
And that was one of the things I said to Jonas. I don't want anyone to know. And he's helped me so, so much.
I have a Theatre school. I employ teachers to do the work. I just oversee things, because I - I'm on a disability pension.
And Jonas has seen me through so many hospital stays with my dad. He helps me with so many things with my dad, with the business. If it wasn't for Jonas inspiring me to work with kids, _____ (1:52:01.7) with disabilities, I would never have done that. We're now in our third year of running classes with disabilities, and kids that were thrown by the wayside and told that they wouldn't be helped, couldn't be helped.
And to see these kids performing and having the parents thank me endlessly for - for securing a place of belonging for these kids, I wouldn't have been able to do it without Jonas.
Later in the hearing, the Member said to the Sponsor:
[748]MEMBER: So, I'll be waiting for a report from, um, your medical professional to say the impact, uh, or the effect on you with - if, um, Mr, uh, Mulombwa, um, wasn't granted the visa.
After the hearing, the Applicant sent the Tribunal a report from Dr Sarah Tottle stating:
[The Sponsor] is on a disability pension for chronic back pain and previous history of spinal fusion, and has a long history of depression which has been exacerbated over the past few years by the uncertainty of her partner and his children being granted permanent residency.
She and her partner, Jonas Mulombwa, have been in a long term relationship since 2014 and she relies on him for assistance and care with regards to her disability and depression.
She feels that that her depression symptoms would become worse if her partner is sent back to his home country of Zambia as this happened previously when he was denied the Partner Visa in 2018. She is currently taking Cymbalta for depression.
Over the years that she has known Jonas she has had multiple hospital stays with regards to her low back pain and needed support from him to look after her.
The Applicant also stated in an email (at CB 386):
We have been in contact by phone to query if a decision has been made to only be told that the case officer is still writing the decision. This is causing so much stress for us as a family and my partner's depression is getting worse and she ended up calling lifeline number to get help…
We need to be able to focus on getting my partner better and assist her mental health due to this Visa circumstance and we are very worried with each passing day.
The applicants contended that the Tribunal did not grapple with their case regarding the impact upon the Sponsor if the Applicant were required to make the application offshore. In particular, the applicants contended that the Tribunal failed to consider the case that was put regarding the potential for exacerbation of the Sponsor’s medical condition due to separation from the Applicant.
The applicants relied upon the case of Karan v Minister for Immigration and Border Protection [2017] FCA 872 (Karan). In that case, the appellant had relied upon a psychologist’s report indicating that his wife had mental health conditions that would be aggravated if he were not present to provide support. The delegate in that case refused to waive a no further stay condition. The delegate had referred to the psychologist’s report and acknowledged that separation may cause “some emotional distress”, but found the circumstances insufficiently forceful to waive the condition. Justice Siopis considered (at [28]-[32]):
28There is an important difference between a decision-maker being aware of a document and its contents, and understanding and addressing the claim which is made in the document…
29In this case, it was at the forefront of the appellant’s claim that his wife had been subjected to domestic violence during her first marriage which had left her with “severe mental health issues” and that she had for some time been receiving counselling, that by reason of this pre-existing condition and her history of anxiety and depression, trauma and suicide ideation, his wife’s mental health condition could suffer if he, being the stabilising influence in her life, was not there to support her through the difficult time of giving birth and managing a new born baby. This was supported by the expert opinion of Ms Brown, the psychologist.
30In other words, the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation. The case was a different case, namely, that his wife was a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues.
31Although the reasons given by the delegate refer to the psychologist’s report, the delegate does not address this issue in his reasons. In fact, it is apparent that the delegate did not appreciate the nature of the case being made because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from “a loved one”.
32In my view, the primary judge erred in the manner pleaded in the ground of appeal.
The applicants also relied upon the case of Farhat v Minister for Immigration and Border Protection [2018] FCA 93 (Farhat). Similarly to in Karan, a report had been provided by a medical professional evidencing that the appellant’s wife had a medical condition (recurrent depression). This was in the context of a refusal to waive a visa condition. The report explained that the wife required help whilst in a depressed phase and that this help was provided by the appellant. The delegate had acknowledged the medical report and set out the opinion that the wife was suffering from a psychiatric condition and was in need of care. Nonetheless, it was found that the delegate had not addressed the case made by the appellant when the balance of the delegate’s reasons were taken into consideration. Justice Kenny considered at [39]-[44]:
39.In considering whether or not the appellant’s waiver request satisfied the requirements of Reg 2.05(4)(a)(i) and (ii) the delegate did not address the appellant’s claim that his partner since 2005 had been suffering mental illness (of the kind identified in Dr Ishrat Ali’s report) since 2011, and that the appellant provided her with the requisite care. Had the delegate appreciated and addressed the appellant’s claim at this point, the delegate would have been required to consider whether the appellant’s provision of care and support to meet Ms Salami’s need consequent upon her illness constituted compelling and compassionate circumstances that had developed since the grant of the appellant’s tourist visa over which the appellant had no control and that resulted in a major change to his circumstances. It is clear that the delegate did not do so…
41.The delegate’s statements that he accepted that Ms Salami “experiences feelings of anxiety and stress” also indicates a fundamental failure to understand the case the appellant sought to make for the waiver of the 8503 condition. The psychiatric diagnosis was “recurring major depression and Dysthymia (chronic depression)”, not “anxiety and stress”. It is common enough for a person to suffer from stress and anxiety in daily life, but this does not mean that a person suffering stress and anxiety is mentally ill. Had Ms Salami suffered merely from stress and anxiety, then the delegate’s conclusion that he was not satisfied that the appellant’s “circumstances are substantially different to other families that are separated by their migration choices” might have been in keeping with the terms of the supposed reasons for waiver request. This was not, however, the relevant psychiatric diagnosis. Further, the medical assessment was that in a depression phase Ms Salami required help in some basic activities of daily living, and that the appellant was meeting her needs…
43.Although there are factual differences between this case and Karan, there are some important similarities in the decision-making process. Like this case, Karan involved an appeal to this Court from the dismissal by the Circuit Court of a judicial review application regarding a refusal to waive a 8503 condition attached to a tourist visa. Siopis J held (at [30]-[31]) that the delegate in that case “did not appreciate the nature of the case being made”, which was that the appellant’s pregnant wife was “a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues”. His Honour observed (at [30]) that “the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation”. It was, as his Honour stated (at [27]) “incumbent on the delegate to understand the claim which was being made in support of the application for the waiver and to address that claim” and the delegate’s failure to understand and address that claim disclosed jurisdictional error. Accordingly, his Honour upheld the appeal and set aside the delegate’s decision.
44.As I have said, the appellant’s case here was not simply that he wanted to remain with his wife in Australia; that she suffered from stress and anxiety; and that he wanted to maintain his relationship with his youngest step-son. His case was a different one: at the centre of his case was his wife’s mental illness and her need for his ongoing care and support in aspects of daily living; and in this context his case properly embraced the situation of other family members. In my view the delegate did not understand and address the case that the appellant sought to make in support of his request to waive condition 8503 and the Circuit Court judge erred in rejecting the appellant’s submissions in this regard.
In the present case, the Tribunal referred to having received “an undated medical certificate from Dr Sarah Tottle” at [12] of its decision. At [30], the Tribunal referred to oral evidence by the Sponsor that she “struggled with depression” and received a Disability Support Pension for a back condition. The Tribunal referred to her evidence regarding theatre classes and that “it would be devastating” if the Applicant were required to make the visa application offshore.
The Tribunal’s reasoning regarding the effect upon the Sponsor and other family at [43]-[51] of its decision is set out above. The Tribunal referred to evidence from the Sponsor’s daughter that the Sponsor “would be devastated” if the application were unsuccessful. At [45], the Tribunal considered:
[45]The Tribunal accepts the Ms Boyer’s evidence, supported by an undated letter from Dr Sarah Tottle, that she suffers depression and back pain. Ms Boyer takes medication for her depression.
The Minister suggested that this paragraph should be read as accepting the content of the Doctor’s letter, including what was said regarding: (a) the Sponsor’s reliance upon the Applicant for assistance and care regarding her disability and depression, and (b) concerns that were raised regarding the Sponsor’s depression symptoms becoming worse if the Applicant were required to leave Australia. I am unable to read [45] in that manner. At [45], the Tribunal only stated that it was accepting evidence “that [the Sponsor] suffers depression and back pain” (emphasis added) and that she “takes medication for her depression”.
Nowhere in the Tribunal’s reasons did the Tribunal expressly accept (or reject) the case put forward that the Sponsor relied upon the Applicant for assistance and care regarding her disability and depression, or that her medical condition may worsen if that support from his presence in Australia were denied to her.
Instead, at [46], the Tribunal accepted that the Sponsor may “experience some emotional hardship” if the Applicant were required to make the application offshore, noting that “is commonly an emotionally difficult period for couples to be apart while their visa is decided”. The Tribunal acknowledged at [48] that “the parties involved will be affected emotionally” and accepted at [50] that there “would likely be a degree of emotional hardship to the sponsor, her father, and the second and third named applicants if they remained in Australia”. At [51], the Tribunal concluded that it did not accept that the “potential impacts” upon the family were a compelling reason for waiving the Schedule 3 criteria.
The Minister submitted that the generality of the Tribunal’s findings regarding “emotional hardship” and “potential impacts” encompassed the case made by the applicants: WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]. The Minister also relied upon the Tribunal’s reasoning at [52]-[54], where the Tribunal expressed generally that it had “considered all the circumstances of the [Applicant’s] case” and the “totality of the [Applicant’s] circumstances” but was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
Although the Tribunal’s reasoning in this regard was generally expressed, I do not accept that it engaged with or determined the particular case that was made by the applicants regarding the impact upon the Sponsor. As was found in Fahat at [41], there is a distinction between general emotional distress and mental illness. Similarly to in Karan and Fahat, there are indications in the language used by the Tribunal that it had in mind the former rather than the latter. In particular, the Tribunal at [46] referenced it “commonly” being an emotionally difficult period for couples in finding that the Sponsor may “experience some emotional hardship”.
The case made by the applicants was not that the Sponsor would only experience emotional distress or hardship as is “commonly” experienced by couples experiencing separation (or as may be experienced by others in the family). The case made by the applicants included a contention that the Sponsor’s mental illness may be exacerbated by the Applicant’s absence and inability to provide the same level of “assistance and care” her Doctor’s letter opined that she relied upon “with regards to her disability and depression”.
I therefore accept the applicants’ submission that the Tribunal’s reasoning in this case bears resemblance to the impugned reasoning in Karan and Farhat. Although the Tribunal referred to the medical report and to the diagnosis of depression, the balance of its reasoning suggested a misunderstanding of the case that had been made in this regard. In particular, the Tribunal’s acceptance that the Sponsor may experience (like others in the family) “some emotional hardship” did not grapple with the case put by the Applicant that his separation from her would potentially exacerbate her medical condition.
I accept that the material before the Tribunal in this regard was limited. It was not explained, with specificity, exactly what assistance that the Applicant provided to the Sponsor. Nor was it explained how her condition may deteriorate. Although this may have provided a basis for the Tribunal not accepting the evidence, or finding it insufficiently persuasive, I do not accept that it meant that the Tribunal was not required to engage with the case that was made by the applicants. Determination of whether compelling reasons exist is a necessarily evaluative process. It is possible that the outcome may have been different if the Tribunal had engaged with the case that was made regarding the potential impact upon the Sponsor.
For the above reasons, I accept that jurisdictional error has been established.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 5 June 2025
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