Nagaki v MIBP
[2016] FCCA 1070
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAGAKI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1070 |
| Catchwords: MIGRATION – Application for a Partner (Temporary) visa – where application sponsored by a person who was precluded by the Regulations from sponsoring another person unless the limitation was waived – whether there were compelling circumstances affecting the sponsor so as to enliven the discretion to waive the relevant limitation – where tribunal found that there were no compelling circumstances affecting the sponsor – whether the tribunal did not act in a way that was fair and just. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 5CB, 357A(1), 357A(2), 357A(3), 359A, 424A(1) |
| Cases cited: Babicci v MIMIA [2004] FCA 1645 Babicci v MIMIA (2005) 141 FCR 285 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Ho v Minister for Immigration [2005] FMCA 1104 Huynh v Minister for Immigration & Anor [2015] FCCA 34 Khanfer v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 238 Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigrationv SZMOK (2009) 267 ALR 427 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 Patel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 115 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 Tran v Minister for Immigration and Citizenship (2008) 105 ALD 1826 |
| Applicant: | YUKARI NAGAKI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 748 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 8 April 2015 |
| Date of Last Submission: | 8 April 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Markwell (direct brief) |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The Amended Amended Application filed on 8 April, 2015 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 748 of 2014
| YUKARI NAGAKI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By this application Ms Nagaki seeks orders setting aside a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant to her a Partner (Temporary) (Class UK) visa. She asks that the application be remitted to another tribunal for hearing and determination according to law.
The first respondent opposes the application. The second respondent enters a submitting appearance.
In general terms, the issue raised by this application is whether the tribunal acted in a way that was fair and just and thereby discharged the obligations cast upon it by s.375A(3) of the Migration Act1958 (Cth).
For the reasons that follow, I have concluded that the tribunal discharged its obligations to act in a way that was fair and just, even if s.357A(3) of the Act imposes obligations on the tribunal, the breach of which might lead a court to conclude that the decision is affected by jurisdictional error. In truth, Ms Nagaki’s application to this court is an impermissible attempt to revisit the merits of the tribunal’s fact finding. Consequently, the application must be dismissed with costs.
Background and statutory framework
On 10 January, 2013 Ms Nagaki applied for a Partner (Temporary) (Class UK) visa. She sought a partner visa on the basis of her relationship with an Australian citizen, Mr John Reghenzani. Mr Reghenzani was named as Ms Nagaki’s sponsor on the partner visa application.
When Ms Nagaki applied for her visa, there was only one subclass in the Partner (Temporary) (Class UK) class of visa: subclass 820 (Partner (Temporary). The criteria for the grant of that visa were set out in Part 820 of Schedule 2 to the Migration Regulations1994. By cl.820.211 of Schedule 2 to the Regulations, Ms Nagaki needed to be sponsored by her spouse (in this case Mr Reghenzani): cll.820.211(2)(c), (3)(f), (4)(f), (5)(f) and (6)(c). Moreover, the sponsorship must have been approved by the first respondent and be in force at the time of Ms Nagaki’s application: cl.820.221(4) of Schedule 2 to the Regulations.
Regulation 1.20J of the Regulations provided limitations upon the approval of sponsorships for the purposes of, inter alia, Partner (Temporary) visas. Regulation 1.20J applied to Ms Nagaki’s application: reg.1.20J(1AA)(f). Regulation 1.20J(1) provided:
1.20J Limitation on approval of sponsorships — spouse, partner, prospective marriage and interdependency visas
…
(1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a) not more than 1 other person has been granted a relevant permission as:
(i) the spouse, de facto partner or prospective spouse
of the sponsor on the basis of a sponsorship or nomination; or
(ii)a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
(b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) — not less than 5 years has passed since the date of making the application for that relevant permission; and
(c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission.
That regulation sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. However, in the event that the first respondent was satisfied that there were compelling circumstances affecting the sponsor the first respondent might approve the sponsorship of an applicant for a visa even if reg.1.20J(1) was not met: reg.1.20J(2).
The first respondent’s delegate refused to grant the visa on the basis that Ms Nagaki did not satisfy cl.820.22(4) because the sponsorship upon which she was relying (from Mr Reghenzani) was not approved by the first respondent and she had not established that there were compelling circumstances affecting Mr Reghenzani so as to enliven the first respondent’s discretion to approve the sponsorship notwithstanding that he did not meet reg.1.20J(1) of the Regulations.
At the time of the delegate’s decision on 18 March, 2013 Mr Reghenzani had previously sponsored two Partner (Temporary) visa applicants which had resulted in the grant of visas. In those circumstances, the first respondent was bound not to approve Mr Reghenzani’s sponsorship of Ms Nagaki’s application unless she established that there were compelling circumstances affecting Mr Reghenzani.
The first respondent’s delegate was not satisfied that there were compelling circumstances affecting Mr Reghenzani. I have referred to the delegate’s decision in a little more detail later in these reasons, however, for present purposes it is sufficient to record that after noting that the parties had no children, the delegate examined Ms Nagaki’s claim that she and Mr Reghenzani were in a long term partner relationship. The delegate concluded that they were not and found that there were no compelling circumstances such that the delegate was bound to refuse Ms Nagaki’s sponsorship by Mr Reghenzani. The application for the visa was refused on 18 March, 2013.
On 11 April, 2013 Ms Nagaki lodged an application for that decision to be reviewed by a migration review tribunal. The tribunal invited Ms Nagaki to a hearing to present evidence and submissions. That hearing took place on 3 April, 2014.
Leading up to the hearing Ms Nagaki and Mr Reghenzani presented further submissions and some more evidence to the tribunal. At the hearing Ms Nagaki and Mr Reghenzani expanded upon their evidence and submissions (although it was mainly Mr Reghenzani who did that). Towards the end of the tribunal hearing Ms Nagaki expressed an intention to provide further medical evidence to the tribunal in relation to a specific issue discussed at the tribunal hearing. The tribunal granted her until 1 May, 2014 to provide such evidence.
On a number of occasions after the tribunal hearing, but prior to the tribunal making its decision on 28 July, 2014 Ms Nagaki and Mr Reghenzani submitted several further items of evidence (including two statutory declarations) to the tribunal.
On 28 July, 2014 the tribunal affirmed the delegate’s decision to refuse the grant of the partner visa.
On 27 August, 2014 Ms Nagaki applied to this Court seeking an order that the tribunal’s decision be quashed and for the issue of a writ of mandamus directed to the tribunal requiring that the tribunal determine her application for review according to law.
The tribunal’s decision
Before the tribunal it was not in dispute that Mr Reghenzani had previously sponsored two partner visa applications that had resulted in the grant of visas. Ms Nagaki recognised that for her application to be successful the tribunal needed to be satisfied that there were compelling circumstances affecting Mr Reghenzani so as to engage reg.1.20J(2) of the Regulations and the discretion set out in therein.
As the first respondent points out in his written submissions before me, the approval of Mr Reghenzani as an approved sponsor is a two-step process. First, Ms Nagaki needed to satisfy the tribunal that there were compelling circumstances affecting the sponsor. Secondly, if the tribunal was satisfied that compelling circumstances affecting the sponsor existed, the tribunal needed to exercise the discretion conferred by reg.1.20J(2) to approve the sponsorship.
The tribunal identified the meaning of the phrase compelling circumstances affecting the sponsor, identified each of the matters raised by Ms Nagaki as assisting her case in that regard and then considered each of them in turn.
As to the meaning of the phrase compelling circumstances affecting the sponsor, the tribunal summarised the law in the following way:
9. The expression ‘compelling circumstances’ is not defined in the legislation. Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] 1645 or are ‘so powerful that they lead the [Tribunal] to make a finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
The tribunal pointed out:
7. The Procedures Advice Manual provides some examples of “compelling circumstances”. As these are only examples and because the Tribunal is not bound by the PAM3, the Tribunal must look beyond these examples and consider the individual circumstances of each case, taking account of the fact that the purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions. Paragraph 7.2 of the Department’s Policy Advice Manuel states:
7.2 Compelling circumstances affecting the interests of the sponsor
Under policy, compelling circumstances affecting the interests of the sponsor include instances where:
·the applicant and their sponsor have a dependent child who is dependent on each of them or
·the death of the previous partner or
·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or
·the new relationship is longstanding.
8. Every aspect of the sponsor’s circumstances is relevant to the existence of compelling circumstances. While no definitive list can be given, some general aspects that may be particularly important are:
·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and
·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
The transcript of the tribunal hearing and the tribunal’s reasons reveal that Ms Nagaki submitted that the “major reason” that compelling circumstances affecting the sponsor existed was because of the existence of a longstanding genuine relationship of over three years between she and Mr Reghenzani. However, notwithstanding the emphasis placed upon that matter by Ms Nagaki the tribunal also ascertained whether Ms Nagaki suggested that there were any other reasons upon which she relied as establishing the necessary compelling circumstances.
There were others that were raised with the tribunal in the hearing and which were further emphasised in Ms Nagaki’s written submissions made after the tribunal’s hearing. Those other matters identified by the tribunal were:
a)the fact that the sponsor’s previous relationships (which he sponsored) were genuine relationships which failed for reasons outside his control or fault;
b)the adverse impact that the refusal of the application would have on Mr Reghenzani’s:
i)relationship with his children;
ii)financial position and specifically the financial hardship he would suffer; and
iii)emotional and mental health.
As to Ms Nagaki’s claim that her relationship with Mr Reghenzani was a long-standing one the tribunal accepted that:
a)Ms Nagaki and Mr Reghenzani commenced a relationship in 2010;
b)the relationship became a defacto relationship in January, 2011;
c)the relationship was genuine and continuing; and
d)at the time of the decision Ms Nagaki and Mr Reghenzani had been in a relationship for over three years.
However, the tribunal formed the view that a relationship of the length in question was not sufficient, of itself, to constitute compelling circumstances affecting the sponsor. In that respect, the tribunal said:
25. The sponsor and visa applicant argue that their relationship is a long term one because it has existed for a period exceeding two years, albeit over 3 years at the time of this decision. The Tribunal has had regard to the Departmental policy contained in the PAM which relevantly states that compelling circumstances affecting the interests of the sponsor include instances where the new relationship is longstanding. As discussed with the visa applicant and sponsor at hearing, the Tribunal may have regard to departmental policy, but is not bound by such policy. What is a reasonable period for the purpose of defining ‘long-standing’ will depend on the evidence, the circumstances of each case and the nature of the hardship/detriment that would be suffered if the sponsorship were not approved. Whilst the length of the relationship should be ‘long-standing’, this period of time per se should not be the determinative factor but ought to draw its significance from a number of other factors relevant to the case. To the extent that a period of over two years may be considered ‘long standing’, the Tribunal does not consider that having a relationship of over three years is in itself sufficient to form a compelling circumstance affecting the sponsor.
Ms Nagaki argued that the fact that Mr Reghenzani’s past two relationships were genuine and their failure was outside his control was a matter that went, either by itself or with other matters, to establish the necessary compelling circumstances. In that respect, the tribunal accepted Mr Reghenzani’s evidence that his two relationships prior to that with Ms Nagaki were genuine. However, the tribunal was not satisfied that those circumstances constituted compelling circumstances affecting Mr Reghenzani. The tribunal said:
27. The Tribunal accepts the sponsor’s evidence that his previous relationships were genuine. The Tribunal acknowledges the sponsor’s comments in relation to the breakdown of his second marriage and the impact this had on his financial circumstances. While the Tribunal accepts that these relationships broke down irretrievably, in the Tribunal’s view, this does not amount to a compelling circumstance presently affecting the sponsor. Those relationships broke down, resulting in a divorce and the sponsor has since formed another relationship. The Tribunal is not satisfied that the circumstances of the sponsor’s previous marriages and divorces presently constitute compelling circumstances affecting the sponsor.
Ms Nagaki also argued that there would be a significant adverse financial impact on Mr Reghenzani if her visa was refused. Both she and Mr Reghenzani argued that he would suffer financial hardship if the visa was refused because Ms Nagaki would have to return to Japan and he would follow her there. He told the tribunal that:
a)he had an affinity with Asia and had family and contacts in Singapore, Hong Kong and Japan;
b)he spoke Japanese fluently and was familiar with Japanese culture;
c)Ms Nagaki’s family in Japan accepted Mr Reghenzani as her partner;
d)if he needed to go with Ms Nagaki to Japan he would be able to find employment in Japan - albeit in an occupation which would not pay as much as he could earn in Australia;
e)he was also confident that he would find a job in another Asian country, although not one which will remunerate him as his present job does;
f)his only assets in Australia were a motor vehicle and some savings of about $80,000 (subsequently reduced to about $25,000 after he loaned some money to the mother of his children of another relationship);
g)he pays child maintenance for his children;
h)he and Ms Nagaki have a 12 month lease on their accommodation; and
i)he was concerned that he would lose respect from Ms Nagaki’s father if he was not able to adequately support Ms Nagaki.
The tribunal recorded some other somewhat contradictory evidence from Mr Reghenzani:
30. The sponsor referred to past circumstances that depleted his savings and asset base and that he has now re-established his career in the superannuation field. He referred to his employment history indicating career changes for a variety of reasons, some better paid than others before re-establishing his career in the superannuation field in January 2012. The Tribunal acknowledges the sponsor’s evidence that for various reasons he has accepted lesser paid positions during his working career due to changes in his personal circumstances. In his written statutory declaration following the hearing, he referred to the difficulties he had in finding employment in Australia from the time he accepted a redundancy with ASIC in July 2011 to the time he was offered the position with GESB in Perth in January 2012. He continued, that that these difficulties cause him to believe that it will be almost impossible for him to secure employment outside Australia, especially now that he has specialised and his recent work experience is Australian specific, which is not consistent with the previous oral evidence given to the Tribunal. He continues in his written statement that it is critical for him to continue earning an income in order to contribute to his superannuation in order to fund his retirement and that he is likely to have to work for a minimum of a further 12 years to achieve this.
Of these matters, the tribunal said:
28. The Tribunal notes the sponsor’s evidence that if the sponsorship is not approved, he will be compelled to depart Australia to continue his life with the visa applicant. The Tribunal accepts the oral and earlier written evidence of the sponsor that he will leave Australia if the visa applicant is required to leave Australia, as he is unable to contemplate being apart from her.
…
34. The Tribunal has considered the sponsor’s claims. While the Tribunal acknowledges that the sponsor may not be able to find employment in his current chosen field, based on the oral evidence given is satisfied that he will be able to find employment if he relocates to Japan or elsewhere in Asia. The Tribunal acknowledges that his remuneration may not be as high as that he currently receives but based on the sponsor’s evidence is satisfied he will find employment. The sponsor’s evidence is that he has no real liabilities apart from his credit cards which he generally pays monthly in its entirety and his lease agreement and that he currently receives a modest pension. The Tribunal is satisfied based on the evidence provided, that he will not experience undue financial hardship should he decide to depart Australia. The Tribunal has considered the claim that he needs to continue to earn a relatively good income for his retirement but does not consider that to be a compelling circumstance. The Tribunal does not consider that the circumstances of the sponsor’s finances are compelling circumstances affecting the sponsor for the approval of the sponsorship of the visa applicant.
Ms Nagaki pointed to the potential effect that the refusal of her visa application would have on the relationships between Mr Reghenzani and his children. Her submission assumed that Mr Reghenzani would move to be with her should her application fail and in those circumstances that would necessarily affect his relationship with his two children, aged 17 and 21 years, who presently resided and would continue to reside in Australia. However, the tribunal was alive to the fact that neither child resided with Mr Reghenzani and both children were independently pursuing their own careers and study. The tribunal addressed this matter by saying:
35. The Tribunal notes the sponsor’s evidence that his children are aged about 17 years and 21 years and that his son has recently completed a clerkship for a legal firm in Singapore. The Tribunal acknowledges the sponsor’s statements that he needs to remain in remunerative employment, available to them and of a stable mental mind to be able to effectively assist them with their welfare. He told the Tribunal that he returned to Brisbane to be closer to his children. The Tribunal notes the sponsor’s evidence that for a 3 year period he was employed in a position requiring considerable travel and long periods away from home. The Tribunal notes the sponsor’s evidence that he has relocated previously to work overseas in 2009 in Dubai as well as interstate to Melbourne and then to Perth where he resided for nearly two years and at all times has maintained the relationship with his children. The Tribunal acknowledges that sponsor’s evidence that he funds the travel expenses for his children to visit him and that if his earning capacity is affected he may find it difficult to fund future visits if he relocates. The Tribunal is satisfied from the evidence provided that the sponsor has maintained a close relationship with his children despite his previous relocations for employment and other reasons. The Tribunal notes the sponsor’s comments that his children speak Japanese and are familiar with the culture having spent time living in that country so would be familiar with the language and culture should the sponsor decide to relocate to Japan. The Tribunal notes that the sponsor’s son is an adult pursuing his own academic studies and future career. The Tribunal also notes that the sponsor’s daughter is 17 years of age, in her first year at university and about to pursue her own studies/career. The Tribunal accepts the applicant’s evidence that he has financially provided for his children and acknowledges that should his financial circumstances change he may not be able to provide as much financial assistance has (sic) he has in the past. The Tribunal is not satisfied that on the evidence provided that the sponsor’s relationship with his children would be adversely affected were he to leave Australia, in that he has previously relocated and managed to maintain his relationship with his children. While the Tribunal may consider the sponsor’s relationship with his children a compassionate reason, it does not consider that the circumstances of his relationship with his children are a compelling circumstance affecting the sponsor for the approval of the sponsorship of the visa applicant.
36. The Tribunal is not satisfied on the evidence provided that the sponsor’s ties to Australia constitute compelling circumstances affecting the sponsor for the approval of the sponsorship of the visa applicant.
Finally, Ms Nagaki claimed that Mr Reghenzani’s emotional and mental health would be adversely affected if his sponsorship of her was not approved. Mr Reghenzani had provided to the first respondent’s Department and to the tribunal a series of emails together with other documents that indicated that he was receiving counselling due to the high level of stress he had experienced in connection with the on-going immigration matter with Ms Nagaki. Mr Reghenzani’s stress levels were reported to be at an extremely severe level. He was moderately depressed. Mr Reghenzani claimed that the refusal of Ms Nagaki’s application could cause him to commit suicide.
Although there was no express finding by the tribunal about various aspects of the evidence before it about Mr Reghenzani’s mental and psychological health (for example an express finding about a risk of suicide) it seems clear from a fair reading of paragraphs [38] – [41] of the tribunal’s decision that the tribunal was prepared to accept the evidence put before it about those matters. After carefully considering all of the evidence about those matters, the tribunal said:
41. The Tribunal has considered the evidence provided as to the sponsor’s mental and emotional health and acknowledges that the refusal by the delegate and the delay in a final decision has caused the sponsor to experience considerable mental health issues such as stress and anxiety as well as depression. The Tribunal acknowledges that the visa applicant has also experienced stress and anxiety during this period. The Tribunal has considered the medical evidence tendered which clearly indicates that the sponsor is suffering significant mental health problems due to the decision of the Department of Immigration as well as the sponsor’s own evidence which indicates that it was not until the delegate’s decision that he commenced counselling, seeking assistance with his stress, anxiety and depression as a result of the delegate’s decision and again following the Tribunal hearing. The Tribunal has considered the sponsor’s statements that refusal of the application could precipitate some terrible consequence, including suicide. The medical evidence provided does not indicate an underlying mental health issue or a mental health issue present prior to the delegate’s decision. The evidence provided indicates that the mental health issues have arisen subsequent to the delegate’s decision and are related to the on-going immigration problems. The Tribunal acknowledges that immigration issues cause stress and anxiety. However, while the Tribunal considers these to be compassionate circumstances, the Tribunal is not satisfied that these are compelling reasons affecting the sponsor.
The tribunal concluded by saying that:
42. Having considered the totality of the circumstances affecting the sponsor, the Tribunal is not satisfied that these are “such that they evoke interest or attention in a powerfully irresistible way” or that the circumstances are “so powerful that they lead the [Tribunal] to make a finding that the [provision] should be waived”. The Tribunal does not consider these circumstances, whether considered singularly or cumulatively, to be compelling. The Tribunal is not satisfied that there are compelling circumstances affecting the sponsor, as required by r.1.20J(2).
Accordingly, Ms Nagaki’s partner visa application failed at the first step because the tribunal was not satisfied that compelling circumstances affecting the sponsor existed. Consequently, it did not become necessary for the tribunal to consider whether it ought to exercise the discretion vested in it by reg.1.20J(2) of the Regulations to approve Mr Reghenzani’s sponsorship of Ms Nagaki’s application.
The grounds of review
In general terms, Ms Nagaki argues that having regard to the factual matters that the tribunal accepted, it ought to have concluded that she had established the necessary compelling circumstances affecting the sponsor so as to engage reg.1.20J(2).
Ms Nagaki’s Amended Amended Application for Review filed on 4 November, 2014 contains a number of distinct grounds. The written submissions delivered for her conflate some of them and suggest that others overlap. To an extent they do. She argues that the tribunal’s decision was affected by jurisdictional error as a result of “numerous grounds set out in its Amended Application which fall under 2 distinct but often overlapping categories of (i) key findings in the decision being manifestly unreasonable and (ii) the second respondent failing to act in a manner that was fair and just in relation to the Applicant and her spouse/sponsor John Joseph Reghenzani as statutorily required of it under Division 5 of Part 5 of the Migration Act 1958”.
Ms Nagaki’s written submissions delivered in support of this application appear to attempt to go beyond the matters properly the subject of her grounds of review. The first respondent objected to any expansion of the grounds beyond those in the Amended Amended Application for Review. Despite the first respondent’s objections, I have attempted to deal with all of the arguments primarily because Ms Nagaki’s written submissions are lengthy and the line between what might be caught by her grounds of review and what might not be caught is not clear and bright.
Ground 1(a)
The first ground of review has a number of distinct sub-grounds. The first sub-ground of review set out in Ms Nagaki’s Amended Amended Application for a Review as expressed in paragraph 1(a), is formulated as follows:
1. The decision of the second respondent was affected by jurisdictional error because:
a. the exercise of the second respondent’s discretion in determining that there were no compelling circumstances within the meaning of Regulation 1.20J(2) of the Migration Regulations 1994 was unreasonable and plainly unjust, including by reason of the following circumstances:
i. the second respondent’s finding that the sponsor was suffering “significant mental health problems due to the decision” of the first respondent (at paragraph 4 [sic]);
ii. the second respondent’s finding that the sponsor’s work prospects in Japan would be diminished (at paragraph 32);
iii. the second respondent’s finding that the relationship between the applicant and the sponsor was genuine (at paragraph 24);
iv. the second respondent’s finding that the sponsor’s earlier relationships had been genuine (at paragraph 27);
v. the second respondent’s finding that the applicant’s relationship with the sponsor was one of long-standing (at paragraph 25);
vi. the second respondent’s acceptance of evidence that the sponsor was a risk of suicide (at paragraph 4 (sic));
vii. alternatively, if the second respondent did not accept the evidence referred to in paragraph l (a)(vi) above, the failure of the second respondent to make a finding about the sponsor’s risk of suicide.
Before dealing with a more fundamental difficulty with this ground of review, it is necessary to record that as to particular l(a)(v) set out above, the tribunal did not find that the relationship between Ms Nagaki and Mr Reghenzani was “long-standing”. As the first respondent submits, it did not need to make that finding and a failure to make that finding reveals no error. All the tribunal found on this point was that their relationship exceeded three years which, of itself, did not constitute a “compelling circumstance affecting the sponsor’’.
Primarily, this ground of review must fail for a fundamental reason. Unreasonableness in decision making by an administrative decision maker is a concept that is relevant only to the exercise of a discretion conferred upon that decision maker. It has no place to play where the complaint is about the fact finding of the decision maker.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 624 [39], Gummow A-CJ and Kiefel J said, when referring to ‘Wednesbury unreasonableness’ (footnotes omitted):
The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.
see also Minister for Immigration v Li (2013) 249 CLR 332 at [22].
In SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 Rares J expressed the position as follows (at [83]):
The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can on impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.
The point was affirmed in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [81] and [82]:
[81] In my view there are, with respect, difficulties in the present case in readily accommodating the challenge to the IMR decision within the particular rubric of legal reasonableness.
[82] The present case is not (for example) one, like Li, where it might be said that the manner of exercise of a procedural discretion was foreign to the proper performance ‘of a statutory task (eg per French CJ at [21], per Hayne, Kiefel and Bell JJ at [85), per Gageler J at [124)). No statutory function was committed to the IMR. The case is also not easily seen as one where the “the court cannot identify how the decision was arrived at”, as explained in Singh. I therefore do not see the present case as falling apparently within the identified categories of legal unreasonableness except perhaps, as I shall discuss shortly, a failure of procedural fairness but, normally, an identified denial of an obligation of procedural fairness would need no further characterisation as legal unreasonableness.
There are other relevant principles that might assist an applicant for judicial review to establish jurisdictional error where the applicant’s argument is with the fact finding of the tribunal. However, generally speaking unless the applicant can establish an error in respect of a jurisdictional fact, a factual error by an administrative decision maker is usually an error within jurisdiction and so not the basis for the grant of relief in respect of the relevant decision.
The tribunal’s finding that there were no compelling circumstances affecting the sponsor was not a discretionary decision, but rather a decision as to fact. The first respondent’s submission in that respect is consistent with authority. Whether circumstances are, or are not, “compelling” is a question of fact: Patel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 115 at [10], per Hely J; Khanfer v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 238 at [10]-[11], Ho v Minister for Immigration [2005] FMCA 1104 at [25].
The text of reg.1.20J(2) has two requirements that must exist before Mr Reghenzani could be approved as Ms Nagaki’s sponsor, namely:
a)Ms Nagaki needed to satisfy the tribunal that there were compelling circumstances affecting the sponsor; and
b)if the tribunal was satisfied that compelling circumstances affecting the sponsor existed, the tribunal needed to exercise its discretion to approve the sponsorship.
Upon a finding by the tribunal that there were compelling circumstances affecting the sponsor, the tribunal’s discretion to approve the sponsorship was enlivened. But until then, no occasion for the exercise of that discretion had arisen. The exercise of the discretion conferred by reg.1.20J(2) of the Regulations is dependent upon an antecedent finding of fact that the circumstances presented to the tribunal and said to affect the sponsor, are compelling.
Ms Nagaki failed at the first step. She did not establish to the tribunal’s satisfaction that the circumstances affecting Mr Reghenzani upon which she relied were compelling. The tribunal’s finding that the relevant compelling circumstances did not exist was not a discretionary determination by the tribunal. If the tribunal did not find that the required compelling circumstances existed, the inquiry under reg.1.20J(2) ended there.
It was not suggested that the tribunal misapplied or misconstrued the phrase compelling circumstances affecting the sponsor. The tribunal recorded that the expression compelling circumstances is not defined in the Regulations. The tribunal recorded the test for the determination of whether circumstances were compelling as set out in the decisions in Babicci v MIMIA [2004] FCA 1645 and on appeal at (2005) 141 FCR 285. Ms Nagaki did not argue the tribunal was wrong to apply those decisions. Moreover, she did not attempt to suggest that the tribunal had made an error of law because, on the facts as fully found by the tribunal, the tribunal was bound to find that the facts met the statutory description of compelling.
Ground l(a) of the Amended Amended Application for Review reveals no jurisdictional error.
Ground 1(b)
Ground 1(b) of the Amended Amended Application for Review is in the following terms:
1. The decision of the second respondent was affected by jurisdictional error because:
b. the second respondent failed to take into account a relevant consideration, namely that the applicant’s relationship with the sponsor was genuine.
This ground of review cannot succeed. The tribunal accepted and found that Ms Nagaki’s relationship with Mr Reghenzani was genuine. At paragraph 22 of its reasons for decision, the tribunal said:
22. The Tribunal accepts that the parties commenced a relationship in 2010, reaching a decision that they wanted to be together and spend the rest of their lives together. It accepts they spent time together, travelled together and introduced each other to their family and friends. It has considered the submissions and arguments put forward that the relationship was a genuine de facto relationship from June 2010. … The Tribunal indicated to the parties at hearing that it accepted they were in a genuine relationship.
…
24. After considering all the available evidence the Tribunal is satisfied that the evidence supports the parties commenced their de facto relationship in January 2011 and that it is genuine and continuing.
However, the tribunal did not consider that the fact that the relationship between Ms Nagaki and Mr Reghenzani was genuine meant, without more, that Ms Nagaki had made out the necessary compelling circumstances. Rather, as the tribunal explained, the existence of such a relationship was an essential element of Ms Nagaki’s broader visa application. The tribunal explained in paragraph 24 of its reasons:
… The Tribunal does not consider that the genuineness of the relationship constitutes a compelling circumstance affecting the sponsor. It is a threshold requirement for consideration of the partner visa application. What is required by r. 1.20J(2) is more than merely meeting the statutory requirements for the grant of the visa.
Ground l(b) of the Amended Application for Review reveals no jurisdictional error.
Ground 1(c)
The statement by the tribunal that I have just extracted forms the basis for ground 1(c) of the Amended Application for Review. It is in the following terms:
1. The decision of the second respondent was affected by jurisdictional error because:
(c) the second respondent failed to properly understand the task required of it by wrongly concluding (at paragraph 24) that the genuineness of the applicant’s relationship with the sponsor could not amount to a compelling circumstance the purposes of Regulation 1.20J(2).
To meet the criteria for the grant of a partner visa, Ms Nagaki needed to establish that she had a spouse; schedule 2, cl.820.211(2)(a) of the Regulations. That required the establishment to the satisfaction of the tribunal of a relationship in accordance with the Act and Regulations between she and Mr Reghenzani. The tribunal’s determination that there was a genuine relationship between Ms Nagaki and Mr Reghenzani was nothing more than recognition by the tribunal that she had met one of the criteria for the grant of the visa.
The use of the adjective “genuine” by the tribunal when describing Ms Nagaki and Mr Reghenzani’s relationship added nothing. As the first respondent points out , there are not differing degrees of genuineness of a relationship. A relationship is either genuine or not. If it is found to exist, a criteria for the grant of the partner visa is met.
In my view, the tribunal was correct to approach the application on the basis that the genuineness of Ms Nagaki and Mr Reghenzani’s relationship, in and of itself, could not constitute a compelling circumstance affecting a sponsor. It was but one matter that went to make up the circumstances which the tribunal might ultimately describe as compelling. But on its own, and with nothing more, the tribunal could not have been satisfied that there were compelling circumstances affecting the sponsor of the purposes of reg.1.20J(2) of the Regulations. Were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl.820.211(2)(a) would fall within the reg. 1.20J(2) exception.
Ground l(c) of the Amended Amended Application for Review reveals no jurisdictional error.
Ground 1(d)
Ground 1(d) of the Amended Amended Application for Review is in the following terms:
1. The decision of the second respondent was affected by jurisdictional error because:
d. Further to 1.a.v., the second respondent has made an erroneous decision and/or reached a mistaken conclusion and/or made a decision so unreasonable that no reasonable decision maker would have made the decision, and therefore a jurisdictional error has occurred.
2. Further, or in the alternative, the decision of the second respondent was affected by jurisdictional error because:
d. Particular to Ground 1.d.
Policy stated that a ‘compelling circumstance’ was where the new relationship was long-standing. The second respondent stated at paragraph 25 the decision that it does not consider a relationship of three years or over to be a ‘compelling circumstance’ and would not grant the waiver as set out in Reg. 1.20J(2). In ordinary circumstances, if an Applicant and Sponsor have been in a relationship three years or longer, as defined in Reg. 1.03, then the Applicant is automatically granted a Partner (Residence) Visa. The second respondent has not recognised a ‘compelling circumstance’ and granted the waiver and, accordingly has made a jurisdictional error.
The “Particular” to ground 1(b) does not seem to logically follow what is suggested by ground 1(b). However, there seems to be at least two aspects to the ground. The first seems to be the “unreasonableness” of the tribunal’s conclusions, perhaps informed by the matters raised in the “Particular”. The second might be an argument that if a certain set of circumstances is sufficient for the granting of a permanent visa, then those circumstances ought to have been sufficient for the grant of this visa.
For the reasons I have set out earlier in respect of ground 1(a), to the extent that this ground relies upon “unreasonableness” it cannot succeed. The tribunal was not called upon to make a discretionary decision about whether compelling circumstances affecting the sponsor existed. The tribunal was called upon to make a finding of fact which, if found in the way contended for by Ms Nagaki, enlivened the discretion provided in reg.1.20J(2) of the Regulations.
As to the second aspect of this ground, the first respondent theorises that this ground might be construed in the following way:
a)the tribunal found that Ms Nagaki’s relationship with Mr Reghenzani was a longstanding one as it had “existed for a period exceeding two years, albeit over 3 years at the time of the decision”;
b)in “normal” or “ordinary” circumstances if an applicant had been in a relationship with a sponsor for over three years at the time of a visa application then Ms Nagaki would automatically be granted a Partner (Residence) Visa;
c)therefore, if an applicant and sponsor had been living together for over three years at the time of a partner visa application that constituted a compelling circumstance affecting the sponsor for the purposes of reg.1.20J(2); and
d)therefore, the tribunal wrongly concluded that Ms Nagaki and Mr Reghenzani’s relationship of over three years did not constitute a compelling circumstance affecting the sponsor or, alternatively, the tribunal’s decision was unreasonable in the premises of the matters outlined in subparagraphs (a) and (b) above.
However, aside from the principal difficulty with this argument that I have already addressed, there a number of other reasons for rejecting this ground.
First, Ms Nagaki’s contention that the tribunal “had found that the Applicant’s relationship with the Sponsor was one of long standing” is incorrect. I have addressed that above. The tribunal did not find that the relationship between Ms Nagaki and Mr Reghenzani was “long-standing”. The tribunal found that Ms Nagaki and Mr Reghenzani’s relationship exceeded three years which, of itself, did not constitute a compelling circumstance affecting the sponsor.
Secondly, Ms Nagaki’s contention that, in “normal” or “ordinary” circumstances, if an applicant had been living with a sponsor for three years or more at the time of a partner visa application then Ms Nagaki would automatically be granted a Partner (Residence) visa is not supported by any evidence and is, in any event, incorrect. A relationship between a visa applicant and another person which has continued for not less than three years (where they have no children together) is within the definition of long-term partner relationship as set out in reg.1.03 of the Regulations.
Falling within that definition is relevant to a “normal” or “ordinary” partner visa application in that it permits an applicant within that definition to fast track the two-year waiting period (between applying for a Temporary Partner Visa and being entitled to obtain a Permanent Partner Visa) which ordinarily applies to partner visa applicants. The length of the applicant and sponsor’s relationship has no direct relevance to the visa criteria imposed for either a Temporary Partner visa or a Permanent Partner visa. I accept the first respondent’s submission that, other than that, the only material visa criterion concerning the nature or length of the applicant and sponsor’s relationship is the requirement that the relationship between the applicant and sponsor be one that falls within the definition of spouse in s.5F of the Migration Act 1958 (Cth) or, alternatively, falls within the definition of de facto relationship in s.5CB of the Act. As the first respondent points out these definitions do not require the relationship to be of any set length before persons can be said to be a spouse or de facto partner - nor does the definition of spouse or long-term partner relationship in reg.1.03 of the Regulations play any role in determining whether an applicant and a sponsor are in a relevant relationship.
Further, the submission that in ordinary circumstances, if an applicant and sponsor have been in a relationship three years or longer, as defined in reg.1.03, then the applicant is automatically granted a Partner (Residence) visa cannot be correct because the existence of a relevant relationship is not the only material criteria relevant to obtaining a Partner (Residence) visa. There are other matters that need to be met. The granting of such visa can hardly be said to be automatic.
Moreover, an applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa does not and, in my view, cannot amount to a compelling circumstance affecting the sponsor for the purposes of reg.1.20J(2) of the Regulations. The definition of long-term partner relationship in reg.1.03 has no statutory relevance or application to whether there are compelling circumstances affecting the sponsor for the purposes of reg.1.20J(2).
The tribunal was not obliged to apply or consider the definition of long-term partner relationship in reg.1.03 in determining whether or not compelling circumstances affecting the sponsor existed under reg.1.20J(2). It is difficult to see how the failure by the tribunal to have regard to that in the way in which Ms Nagaki contends was “unreasonable”.
Ground l(d) of the Amended Amended Application for Review reveals no jurisdictional error.
Grounds 2(a)(i), 2(a)(ii) and 2(a)(iii)
Ground two of the Amended Amended Application for Review also has a number of distinct sub-grounds. It is convenient to deal with grounds 2(a)(i) to 2(a)(iii) together. They are in the following terms:
2.Further, or in the alternative, the decision of the second respondent was affected by jurisdictional error because:
a.The second respondent did not comply with subsection 357A(3) of the Migration Act 1958 as a result of failing to act in a way that was just and fair to the Applicant and sponsor by reason of the following circumstances:
i. At no stage prior to delivery to the Applicant of the second respondent’s decision were the applicant or sponsor given clear or meaningful particulars of the second respondent’s consideration of [the] issues supporting the second respondent’s ultimate findings (at paragraphs 34 and 35 of the decision record) that the sponsor would not experience undue financial hardship or that the sponsor’s relationship with his children would not be adversely affected were he to leave Australia;
ii. The presiding tribunal member of the second respondent making the following statements to the Applicant and sponsor towards the end of the video hearing on 3 April 2014, which statements were reasonably relied upon by the Applicant and sponsor as reassurances that they would be alerted to any issues, which had not otherwise been earlier notified to them, that the second respondent might consider to be a reason, or a part of a reason, for affirming the decision under review:-
I.“When I go through everything, if there is anything that comes up I will write to you and seek comment. If I need to, if there is anything adverse that arises, I will either write to you or I will set aside a time for another hearing”;
II.and minutes later “... as I said, if there is anything that I come across in the process, I... when considering the information you have provided, I will contact you”,
In the circumstances, these statements further informed the Applicant’s and the sponsor’s expectations of procedural fairness in relation to the deliberations of the second respondent, yet neither the Applicant or sponsor were again contacted by the second respondent prior to the delive1y of its decision, and in particular were never alerted to the issues or information ultimately forming the second respondent’s findings referred to in paragraph 2(a)(i) above;
iii. As a result of paragraphs 2(a)(i) and 2(a)(ii) above, neither the applicant or sponsor were provided a fair or reasonable opportunity to address and make more comprehensive submissions in relation to issues ultimately in forming the second respondent’s findings referred to in paragraph 2(a)(i) above.
Section 357A of the Migration Act 1958 was in the following terms at the relevant time:
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Whether s.357A(3) of the Act imposes statutory requirements capable of supporting substantive grounds of review for jurisdictional error is not settled. However, in Li’s case, the plurality said (footnotes omitted) :
55. The terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5. What then is to be understood by the requirement in s 357A(3), expressed in obligatory terms, that in “applying this Division, the Tribunal must act in a way that is fair and just?” If s 357A(1) is to be taken as exhaustive of the requirements of procedural fairness which attach to a review, does s 357A(3) nevertheless say that the Tribunal, in fulfilling those requirements and in exercising its powers, is to do so in a way which is fair and just?
56. In Minister for Immigration and Citizenship v SZMOK, a Full Court of the Federal Court considered an analogue to s 357A, which appeared in what was Div 4 of Pt 7 of the MigrationAct. Applied to s 357A, the reasoning is that s 357A(3) cannot be taken as intended to qualify or cut down the express statement in s 357A(1). However, Div 5 provides no indication as to how the procedural powers contained in it are to be exercised. Section 357A(3) may be taken to address that omission. The Full Court considered that s 357A(3) may have been intended to restore concepts of fairness and justice to the exercise of the procedural powers for which the Division provides.
57. On this approach, it was said that “fairness” and “justice” may usefully be compared with the content of those words in the expression “procedural fairness” and “natural justice”. In drawing this conclusion, the Full Court in SZMOK was not equating the requirement of s 357A(3) to act in a way that is fair and just in the conduct of the review with the obligation to afford procedural fairness or natural justice. The Full Court said that some other requirement of fairness is to be implied, but clearly thought that that requirement bore the hallmarks of the obligation of procedural fairness at common law. The reconciliation effected by the Full Court suggests that it considered that a breach of the requirements of s 357A(3) may not have the same consequences as a breach of the common law obligation. The Full Court did not, however, consider the role of s 75(v) of the Constitution. It is firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction, for which prohibition will go under s 75(v).
58. In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
59. A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
The first respondent submits that this application can be determined without the need to come to a definitive view about whether s.357A(3) of the Act imposes any obligations capable of supporting substantive grounds of review for jurisdictional error. That is so because even if s.357A(3) of the Act does give rise to substantive obligations, it has not been contravened in this case. For the reasons that follow, I agree with the first respondent’s submission.
The parties seem to agree that to the extent that s.357A(3) of the Act does impose substantive obligations capable, if breached, of giving rise to jurisdictional error, the concepts of “fairness” and “justice” in s.357A(3) are construed by reference to, but are not the same as, the general law concepts of procedural fairness and natural justice: Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [28] and Minister for Immigrationv SZMOK (2009) 267 ALR 427 at [18].
However, where particular procedural fairness requirements or matters are dealt with by Part 5, Division 5 of the Act, s.357A(3) does not expand the scope of any procedural fairness obligations in respect of those particular requirements beyond what is provided in that part of the Act: Minister for Immigration and Citizenship v Li (High Court above) at [18]; SZMOK v Minister for Immigration (above) at [27], Minister for Immigration and Citizenship v Li (Federal Court, above) at [30] and Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at [23] (and the authorities referred to therein).
Further, there is no dispute that the second respondent had a statutory obligation to provide Ms Nagaki with a reasonable opportunity to present her case. Division 5 of Part 5 of the Migration Act sets out the framework in which that is to occur.
However, she submits that for the reasons that she identifies “the Applicant and sponsor were never meaningfully, or otherwise “clearly’’, alerted to the need to address, and therefore never given a reasonable opportunity to address, key matters which the second respondent subsequently relied on as reasons, or a part of its reasons, for affirming the relevant decision under review.” (my emphasis). In that way she suggests that the tribunal did not act in a way that is fair and just. That submission appears to be a submission that the tribunal did not meet the obligations cast upon it by s.359A of the Migration Act.
One observation can immediately be made about Ms Nagaki’s argument. The tribunal was not obliged to afford Mr Reghenzani procedural fairness. The obligation to provide procedural fairness was an obligation towards Ms Nagaki. I was taken to no provision in the Act or the Regulations which requires the tribunal to provide Mr Reghenzani with the opportunity to be heard in his own right or to have issues that concerned the tribunal raised with him (as opposed to Ms Nagaki). To the extent that Ms Nagaki’s argument suggests that the tribunal owed those obligations to Mr Reghenzani, Ms Nagaki’s case must fail (cf. Huynh v Minister for Immigration & Anor [2015] FCCA 34 where the sponsor was the appropriate review applicant because the visa applicant was off-shore).
Ms Nagaki argues that the key issues upon which the tribunal “ultimately based its finding included but not limited to the following matters” and which were “never meaningfully or clearly alerted to her at any stage prior to the tribunal making its decision” were:
i. The opportunity to provide further evidence and submissions in relation to the issues of the viability and prospects of the sponsor having to leave Australia and find work overseas;
ii. The opportunity to provide further evidence and submissions in relation to the likely impacts on the mental and physical health and welfare of the sponsor upon both failing in the matter before the second respondent and/or having to live and work overseas (in particular the impact of having to surrender an existing and valued career in Australia for uncertain visa and work prospects outside Australia);
iii. An opportunity to provide further particulars of likely welfare consequences and financial hardship to both the sponsor’s three direct and indirect financial dependents in Brisbane in the event of an adverse decision by the second respondent.
It will be immediately apparent from those matters that Ms Nagaki’s complaint is that the tribunal did not give her the opportunity to provide further evidence and submissions about the three particular matters specified. However, the course of the tribunal’s hearing and what occurred after that hearing makes it clear that Ms Nagaki was indeed given an opportunity to give further evidence and submissions about those matters and took up that opportunity, via Mr Reghenzani, who provided the tribunal with two further statutory declarations dealing with, in part at least, those matters.
Just as in cases were the allegation is one that there has been a denial of procedural fairness in the general law sense, the content of the obligation to act in a way that is fair and just is informed by:
a)the purpose of the provision which gives the relevant discretionary power to the Tribunal;
b)the purpose of surrounding provisions and Division 5 of the Act as a whole; and
c)the facts and circumstances of the particular case.
For the purposes of this ground, Ms Nagaki’s argument seems to be that because the tribunal did not inform her of the issues that were considered by the tribunal and determined against her (being those set out in these grounds of review), the tribunal did not act in a way that was fair and just in the circumstances. In that respect, her submissions drew upon Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 where the Full Court said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
That passage was approved and applied in the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152. In that case, the Court said:
26. …In the present case, attention in argument, both in this Court and in the courts below, was directed more to the particular circumstances of the case than to the relevant statutory framework, but it is necessary to notice some aspects of that framework. Unless that is done, the argument proceeds at too high a level of abstraction and may proceed upon assumptions that are ill founded.
27. First, the Migration Act 1958 (Cth) obliged (s 425(1)) the Tribunal to “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”. The Tribunal was not bound to extend such an invitation to appear, if it considered that “it should decide the review in the applicant’s favour on the basis of the material before it” (s 425(2)(a)).
28. Secondly, the Act empowered (s 424(1)) the Tribunal to seek additional information that it considered relevant, and obliged (s 424A(1)) the Tribunal to give to an applicant particulars of certain information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That latter obligation did not apply (s 424A(3)(a)) to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
…
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
It is within that statutory context that this ground of Ms Nagaki’s application must be determined. What were the issues arising in relation to the decision under review? Ordinarily, an applicant is entitled to assume that the reasons given by the first respondent’s delegate for refusing to grant the application will identify the issues that arise in relation to that decision: SZBEL at [36]. Accordingly, the delegate’s decision in this case is important.
After setting out the statutory framework in which Ms Nagaki made her application and the effect of regs. 1.20J(1) and 1.20J(2), the delegate turned his mind to whether there were compelling circumstances affecting Mr Reghenzani so as to enliven the discretion to approve his sponsorship of Ms Nagaki. The delegate set out a list of four different circumstances that might amount to compelling circumstances drawn from the first respondent’s Policy Advice Manual. The first three could not, on the facts, have application. The fourth was that Ms Nagaki and Mr Reghenzani were in a “long term partner relationship”. The delegate gave reasons for determining that Ms Nagaki and Mr Reghenzani were not in a “long term partner relationship”.
On a fair reading of the delegate’s decision, Ms Nagaki’s application failed because she did not have an approved sponsor for her application. The delegate would not approve Mr Reghenzani’s sponsorship because the one circumstance clearly promoted to the delegate by Ms Nagaki and considered by him – whether there was a “long term partner relationship” – was not made out on the evidence to the delegate’s satisfaction. Because Ms Nagaki did not have a sponsor for her application, the delegate found, correctly, that she did not meet cl.820.221(4) of schedule 2 to the Regulations. The delegate did not go on to consider whether any other criteria for the grant of the visa were met.
However, the material in the Court Book reveals that there were other grounds raised by Ms Nagaki and Mr Reghenzani to establish the relevant compelling circumstances so as to engage the s.1.20J(2) discretion. Other grounds were raised in:
a)Mr Reghenzani’s application for sponsorship. In that document (p.34 of the Court Book) Mr Reghenzani sets out 5 matters to which he points as establishing compelling circumstances;
b)a statutory declaration made by Mr Reghenzani on 2 January, 2012.
In each of those documents, Mr Reghenzani identifies circumstances other than his long standing relationship with Ms Nagaki that he contended were relevant. He refers to the circumstances of the failure of his previous relationship (with a sponsored partner) and the anticipated effects upon his mental, physical “and possibly financial” wellbeing if Ms Nagaki’s application is refused.
On 21 January, 2013 the delegate who determined Ms Nagaki’s application wrote to her and, after pointing out the limitation on sponsorships that affected her application, gave some examples of the circumstances that “may” amount to compelling circumstances affecting the sponsor. The letter went on:
There is provision to approve a sponsorship despite these requirements if the decision maker is satisfied that there are compelling circumstances affecting the sponsor.
Under policy compelling circumstances affecting the interests of the sponsor may include, but are not limited to, instances where:
- if your sponsor’s previous partner has died;
- if your sponsor’s previous partner has abandoned the relationship leaving young children;
- if relationship between the applicant and sponsor is long standing; or
- if you and your sponsor have children of your relationship.
The purpose of the sponsorship limitations is to prevent abuse of the Partner migration provisions and this will be considered by a departmental decision maker when considering whether or not to exercise the waiver.
Every aspect of your sponsor’s circumstances is relevant to the existence of compelling circumstances, including the extent and importance of your sponsor’s ties to Australia and the consequent hardship/detriment that would be suffered by your sponsor if the sponsorship were not approved.
(my emphasis)
Ms Nagaki responded by email dated 21 January, 2013 suggesting that her sponsor had already provided information about the relevant compelling circumstances.
After prompting from the delegate, on 3 February, 2013 Ms Nagaki swore and, at a time I am unable to determine, provided to the delegate a statutory declaration that addressed the nature and duration of her relationship with Mr Nagaki.
However, on 5 February, 2013 the delegate again wrote to Ms Nagaki asking for additional information relevant to the establishment of compelling circumstances for the purposes of waiving the sponsorship limitation. On a fair reading of that email, the focus of the delegate was on the nature and duration of Ms Nagaki’s relationship with Mr Reghenzani. So too, a further email from the delegate dated 7 February, 2013 in response to an email from Ms Nagaki. That focus is explicable by the attention that Ms Nagaki and Mr Reghenzani had placed on the question of their relationship.
On 21 February, 2013 Mr Reghenzani made a statutory declaration in response to the delegate’s request. In that declaration he said:
(1) I wish to demonstrate compelling reasons that the Application for residency made by Yukari Nagaki should be granted notwithstanding a discretionary sponsorship restriction applying to me, her sponsor in that Application. Those compelling reasons include but are not limited to:
(a) the fact that our relationship is already a long standing one, having continued now in excess of 2 years and seven months, of which over the last 25 months we have been living on a full time basis;
(b) I wish to continue to reside with Yukari as my exclusive partner on a permanent full-time basis. It is my intention to grow old with Yukari. All of my immediate family, as well as Yukari’s immediate family, know of this intention and to the best of my knowledge and belief support us in my hopes and plans;
(c) My marriage to my previously sponsored partner Chiyuki Chikashita had irretrievably broken down by January 2010. This breakdown occurred entirely against my wishes and in spite my numerous efforts prior to that time to make that marriage succeed. One of the main reasons communicated to me by Chiyuki for her not wanting to continue the relationship was her desire not to reside in Australia but rather Japan. Chiyuki still resides in Japan and I understand still wishes to continue to reside there on a permanent basis; and
(d) I hold genuine concerns that my physical, emotional and, possibly, financial wellbeing will be seriously detrimentally affected if the subject Application does not succeed. I am already suffering frequent stress and anxiety as a result of the uncertainty of outcome of the Application and this is proving a massive distraction and generator of distress in my day to day life. I am worried my health will continue to suffer until I gain adequate assurance that a positive outcome to the Application is assured - this does not mean an early grant but merely a final determination on the issue of the discretionary sponsorship restriction.
It is clear from the material to which I have just referred that:
a)the delegate drew Ms Nagaki’s attention to the proposition that all of Mr Reghenzani’s circumstances were relevant to a determination of whether there were compelling circumstances affecting the sponsor;
b)Mr Reghenzani raised matters other than the nature and the extent of his relationship with Ms Nagaki, but his primary focus (and that of Ms Nagaki) was upon their relationship;
c)the issue thought dispositive of Ms Nagaki’s application by the delegate was her failure to establish compelling circumstances affecting the sponsor so as to enliven the discretion conferred by reg.1.20J(2) of the Act.
Analysed in terms of the approach taken in SZBEL Ms Nagaki was entitled to assume that the reasons given by the delegate for refusing to grant the application identified the issues that would arise upon a review of that decision. If the tribunal viewed any other issues as dispositive, the tribunal was under an obligation to bring those matters to her attention so that she could provide evidence and make submissions in respect of them.
However, Ms Nagaki’s argument before me proceeds on the basis that the relevant “issue” was the delegate’s determination about the nature and extent of her relationship with Mr Reghenzani. But to identify the relevant issue in that way is to describe it too narrowly. The dispositive issue before the delegate was whether there were compelling circumstances affecting the sponsor for the purposes of re.1.20J(2) of the Regulations, not whether Ms Nagaki and Mr Reghenzani were in a relationship of a particular nature or length. Certainly findings about those matters were relevant, but those matters were the evidence pursuant to which Ms Nagaki invited the tribunal to determine the relevant issue of compelling circumstances.
Ms Nagaki was entitled to assume that the issue to be dealt with by the tribunal on the review was whether she could establish compelling circumstances affecting the sponsor for the purposes of re.1.20J(2) of the Regulations. There is no doubt that she fully appreciated that was the issue arising on the review.
Even if there was doubt, the tribunal member made the issue clear to Ms Nagaki (and Mr Reghenzani) at the commencement of the hearing before her. In that respect I have the benefit of a transcript of the hearing before the tribunal. From the transcript (using the corrected transcript annexed to the affidavit of Claire Amy Campbell filed on 24 November, 2014) the following appears:
Tribunal:Thank you. Thank you. Now, we’re here today because you applied for a partner visa, Miss Nagaki, for a partner visa to the Department of Immigration. The delegate did not grant the visa, the delegate was not satisfied [inaudible] that there were compelling circumstances for the waiving of the provisions pursuant to regulation 120J for the granting of the visa of your sponsor. You weren’t happy with that decision and you have applied to the Migration Review Tribunal for the decision to be reviewed.
Ms Nagaki:That’s correct.
…
Tribunal:Now it’s my job today to conduct a new examination of your application so that includes all the evidence you have provided to the department as well as the evidence you provided to the tribunal prior to today and the information that I get from you today, or from both of you today. Now the purpose of you coming here today is so that you can tell me everything that you think is important to your claim and I can ask some questions to clarify some matters. Now if I don’t ask you something and you think it’s important that I’m aware, make sure that you tell me about it because today is your day and it’s important for you to tell me everything that is important.
Ms Nagaki:Understood.
Tribunal:Okay. Basically, my understanding is that your application was refused. Well, actually, the sponsorship was refused, is that correct? And --
Ms Nagaki:[inaudible]
Mr Reghenzani: That is correct, Your Honor. [Thanks?]
Tribunal:And the delegate found that compelling circumstances affecting your sponsor were not there to waive the provision pursuant to regulation 12J2, 120J2.
To the extent that Ms Nagaki now claims that the tribunal failed in its duty to ensure that she was aware of the issues that were arising on the appeal, the tribunal discharged the obligation upon it. The issue on the review was the same as the issue before the delegate.
Even if I am wrong about that and a narrower view should be taken of the phrase “issues arising on the review” so that the various circumstances relied upon by Ms Nagaki as making up the compelling circumstances affecting the sponsor are each viewed as an issue arising on the review, the tribunal has not acted in a way which was not fair and just.
Informed by Mr Reghenzani’s reading of materials made available by the first respondent’s department Ms Nagaki (and Mr Reghenzani on her behalf) lodged a significant amount of material designed to establish the nature, extent and duration of her relationship with Mr Reghenzani. Although she was aware that the tribunal needed to find that there were compelling circumstances affecting the sponsor, her attempt to do that seemed to focus primarily on establishing the nature, extent and duration of her relationship with Mr Reghenzani.
After explaining reg.1.20J in general terms, the tribunal referred to the Policy Advice Manual used by the first respondent’s department to which Ms Nagaki and Mr Reghenzani had made earlier reference when preparing Ms Nagaki’s visa application to the department. The tribunal said:
Tribunal:I need to make you aware that the tribunal is not bound by PAM, by the department of policy. The tribunal must look beyond these examples and consider the individual circumstances of each case and we also need to take into account the fact that the purpose of the sponsorship limitation is to prevent abuse of the partner finance [inaudible] say migration provisions. So every aspect of the sponsor’s circumstances is relevant to the existing and compelling circumstances and while there’s no definitive list, the general aspects that can be particularly important are the nature of the hardship or the detriment that would be suffered by the spouse if the sponsorship was not approved, the extent and importance of ties the sponsor has to Australia, the consequence of hardship and detriment that would be suffered if the sponsorship was not approved, and the sponsor was to feel compelled to leave Australia to maintain the relationship with the visa applicant. Compelling circumstances are not defined in the legislation, we have a look at the case law for that whether there are compelling circumstances affecting the sponsor as a matter of fact, and agreed by the tribunal to determine. So I must consider whether the circumstances are such that they invoke interest or intention in a powerfully irresistible way or they’re so powerful they leave the tribunal to make a finding that the provision should be [inaudible] made. So the issue before me today is whether the sponsorship, your sponsorship has been approved in accordance with the relevant clauses in the legislation.
Mr Reghenzani (who did almost all of the talking on behalf of Ms Nagaki) acknowledged that the tribunal was not bound to apply the guidelines set out in the PAM on a number of occasions throughout the tribunal’s hearing.
The tribunal then returned to an explanation of the task before it:
Tribunal:So you have previously made two sponsorships, therefore under one regulation 1.20J, you cannot sponsor the visa applicant, your current partner, unless the tribunal -- so the issue for me today is whether there are compelling circumstances affecting you as the sponsor such as the sponsorship of the visa applicant, Miss Nagaki, is approved.
Mr Reghenzani: That’s fully understood. [inaudible]
Tribunal:You understand?
Mr Reghenzani: It’s good.
Tribunal:Okay.
Ms Nagaki: Understood.
Tribunal:So I need to ask you about the compelling circumstances that affect you. So what are the compelling circumstances affecting the sponsor in this case?
It is clear that whilst Ms Nagaki and Mr Reghenzani contended that their spousal relationship commenced in about July 2010, the tribunal was persuaded that she was Mr Reghenzani’s spouse from at least January, 2011. The tribunal member said, early in the tribunal’s hearing (lines 160 – 165 of the transcript):
Tribunal:I understand that. The other issue I would like to say that I actually have gone through all the documents that you have provided and I am prepared to accept that you have been in a relationship. I acknowledge your submissions that you were in a relationship maybe mid-2010 September 2010 and the evidence I have before me, I am unable to be satisfied that you were actually in a relationship from that date. I am more likely to accept that you commenced your relationship from January 2011. Based on the evidence--
Later, after Mr Reghenzani explained, amongst other things, that he thought the longer the relationship that Ms Nagaki could establish with him the more compelling the circumstances were likely to be, the tribunal member said (at lines 245 – 253 of the transcript):
Tribunal:Well, the issue for me today is not -- is to do with the compelling circumstances applicable to the sponsor for the waiving of the restrictions and I would like to spend some time on that. You can argue and make your point in relation to the relationship being longer than commencing in July or earlier in 2010 and I’m prepared to take evidence from you on that. At this moment, I’m prepared to accept that you were in the de facto relationship from January 2011, I also need to make you aware that I have -- as I pointed out to you earlier, I’m not bound by departmental policy. It’s a fact I can consider but I am not bound. I need to have a look at your entire circumstances and the circumstances as applicable when I’m considering what are compelling circumstances. So it may be that I may not consider that a long-standing relationship in itself is sufficient to establish compelling circumstances.
In response, Mr Reghenzani said (line 254 of the transcript):
Mr Reghenzani: We understand that and actually I’ll make a confession. Even though I’m a lawyer by trade, I’m no longer, I’m not a litigator. And maybe because of the trauma of this whole experience, I only realized that last night. I’m [going to be calling it?] trauma. Originally, I will tell you that -- and this is sworn evidence, is that we were told by Immigration when we called their call center and spoke to a partnership, partner visa specialist, that was all we have to prove. So perhaps we focused [our efforts][inaudible]more on that and not so much on this emotional health, physical health side of things and that’s really what I want to touch on now because certainly now I’m glad to say it’s in my evidence but I really want to tease it out because it’s not being dramatic.
The tribunal’s hearing transcript reveals that much of the hearing was taken up with Mr Reghenzani engaging in long discursive soliloquies about a range of issues. On a number of occasions, the tribunal member sought to bring Mr Reghenzani back on topic. In the course of the hearing, Mr Reghenzani gave evidence about his past employment, both in Australia and overseas and his attempts to obtain employment overseas in Asia in the past. He gave some evidence about what he considered his employment prospects to be in Japan. He also gave evidence about his financial circumstances and the nature and the extent of his relationship with his children. The transcript reveals that he was given an unlimited opportunity to speak about those matters.
On several occasions the tribunal member reiterated that she was not bound to follow the PAM and Mr Reghenzani indicated that he understood that. She also indicated, more than once, that she accepted that the parties were in a genuine de facto relationship from January, 2011 but that she had reservations about whether there was a de facto relationship before that. Nonetheless, she indicated that she was satisfied that they were in a genuine relationship that commenced at least in January, 2011.
After the hearing, Ms Nagaki, by Mr Reghenzani, sent further material to the tribunal that dealt with the matters raised by Mr Reghenzani as compelling circumstances and that were in addition to the relationship issue.
Each of the purported compelling circumstances identified by ground 2(a)(i) – (iii) of this application for review was dealt with by the tribunal. To the extent that Ms Nagaki argues that they were “New issues first notified at hearing and not specifically but generically”, her argument must fail. The issues were not “notified” by the tribunal but were raised by Mr Reghenzani in response to the tribunal’s request that he identify any other circumstances that he wished to have taken into account. They are the same issues that Mr Reghenzani had raised, albeit briefly, in his statutory declarations for the purposes of the delegate’s determination. They were neither “first notified at the hearing” nor new.
I have set out above paragraphs from the tribunal’s reasons for decision that dealt with the viability and prospects of Mr Reghenzani leaving Australia and finding work overseas. I have also set out above those paragraphs in the tribunal’s reasons dealing with the impact on Mr Reghenzani’s mental and physical health and welfare should he be required to live and work overseas and effects on his relationship with his three adult children who live in Australia.
Perhaps Ms Nagaki’s complaint is that had she known that the tribunal would not consider those matters either individually or cumulatively as amounting to compelling circumstances affecting the sponsor, she would have provided further evidence and submissions about those matters. Put another way, perhaps she argues that had she been informed that the tribunal would not be satisfied that those matters alone or in combination with the nature and extent of her relationship with Mr Reghenzani would not be found by the tribunal to be compelling circumstances, she would have provided further material and evidence to the tribunal.
She argues that, to the extent that Mr Reghenzani had led some evidence in relation to “a few of these issues, this was never in response to any clear identification of the particular issue by the second respondent, but rather the Applicant and sponsor attempting of their own volition (both during and following the hearing of 3 April 2014) to surmise what might be relevant to a consideration of other compelling circumstances affecting the sponsor”.
Ms Nagaki further submits that:
The belated raising by the second respondent of the possible (rather than certain) need for the Applicant and Sponsor to establish “other compelling circumstances” was only ever a generic rather than more specifically meaningful indication of what the Applicant and sponsor might (as opposed to would) need to address beyond their evidence prior to hearing. The Applicant and sponsor had only ever been informed for the first time at the 3 April 2014 hearing that the tribunal member of the second respondent “may’’ consider herself not bound to follow the Policy Advice Manual (PAM) of the first respondent, the issue of the sponsor’s satisfaction of which had been the sole basis of the first respondent’s findings in earlier decision under review. The impact on the Applicant and sponsor of this belated awareness and the limited degree of guidance provided by what was otherwise a largely generic description of issues that might need to be established and its relevance to the question of sufficiency of procedural fairness is explained at greater length below.
The Applicant and sponsor were never made reasonably aware of the second respondent’s intention to make particular findings in relation to the issues set out in paragraph 8 above and accordingly were never provided a reasonable or fair opportunity to more fully address the issues to the satisfaction of the second respondent. Nor were the Applicant and sponsor ever made aware of, or had a reasonable opportunity to address the incorrect and unsupported assumptions/findings in the second respondent’s decision record that the sponsor was “fluent” in the Japanese language and was “confident” in finding work outside Australia. In fact assumptions or findings on these issues appear to have critically underpinned the second respondent’s key finding that the sponsor would “not experience undue financial hardship should he decide to depart Australia”. Moreover, the findings had already been clearly and unambiguously contradicted in the evidence before the second respondent but at no stage did it attempt to seek further clarification. Each of these failures to more clearly draw these issues to the attention of the Applicant and sponsor was in the circumstances unfair and unjust and inconsistent with the second respondent’s statutory obligations under subsection 357A(3) of the Migration Act.
All of these submissions must fail for a number of reasons. First, Ms Nagaki had been aware from a time prior to the delegate’s decision that the whole of Mr Reghenzani’s circumstances would be relevant. The letter from the first respondent’s delegate of 21 January, 2013 said so. Secondly, it was no part of the tribunal’s function to run Ms Nagaki’s application for her by suggesting the evidence or arguments that the tribunal might wish to hear. The tribunal was only bound to consider the material that Ms Nagaki chose to put before it. Thirdly, whilst the delegate’s decision only dealt with the question of the relationship between Ms Nagaki and Mr Reghenzani, that was because that was the only circumstance seriously suggested by them to amount to the necessary compelling circumstances. That was despite the delegate informing them that all of Mr Reghenzani’s circumstances were relevant. They chose to focus upon the relationship circumstance alone. Before the tribunal, they raised additional matters to support the application for sponsorship. Fourthly, the tribunal member was not obliged to make Ms Nagaki aware of any particular findings that she intended to make. As the hearing unfolded, she did inform Ms Nagaki and Mr Reghenzani that she was satisfied that they had a genuine and long standing relationship since January, 2011. She also informed them that she might not consider that, of itself, to be compelling circumstances affecting the sponsor. I doubt that she was obliged to go so far, but she did. She was not required to go any further. Fifthly, from almost the commencement of the hearing the tribunal member brought to Ms Nagaki and Mr Reghenzani’s attention that something more than the relationship upon which they were relying might be necessary to establish the necessary compelling circumstances. The transcript extracts set out above make it perfectly clear that they understood what was said to them by the tribunal member about that. The transcript reveals that Mr Reghenzani was given an almost unlimited opportunity to say whatever it was that he wanted about the “additional issues”. His own statements confirmed that he had given material to the tribunal before the hearing that touched upon those issues. He gave further evidence to the tribunal about those issues after the hearing – twice. Sixthly, the findings and “unsupported assumptions” referred to in the submission were open to the tribunal on Mr Reghenzani’s evidence to the tribunal. In my view, no complaint can be made about the tribunal’s fact finding in that regard. Seventhly, the tribunal was not obliged to seek clarification of evidence that has been “unambiguously contradicted” by other evidence. The tribunal’s task was to make findings about the evidence. That is what it did.
Ms Nagaki submits that “it was evident (or ought reasonably to have been evident) to the tribunal member at the time of commencement of the hearing that she and Mr Reghenzani had arrived predominantly “prepared only to argue the sponsor’s satisfaction of the PAM criteria”. I do not accept that submission. There is nothing to suggest that the tribunal ought to have known that. In any event, it is clear from the extracts from the tribunal’s hearing set out above that the tribunal member drew Ms Nagaki’s attention to the proposition that:
a)the tribunal was not bound to follow the PAM; and
b)she might not consider Ms Nagaki’s relationship with Mr Reghenzani of itself sufficient to establish the necessary compelling circumstances affecting the sponsor.
Ms Nagaki argues that:
The available material demonstrates that at no stage prior to the hearing before the second respondent of 3 April 2014 had the second respondent communicated, or otherwise made any reasonable attempt to indicate to the Applicant or sponsor, the second respondent’s intention to possibly require more than demonstration of a relationship satisfying the criteria under the first respondent’s PAM. To the extent that some reference to other compelling reasons had been provided by the Applicant these had been entirely volunteered by the Applicant and Sponsor with a view only to supplementing its demonstration of satisfaction of the PAM criteria, without any prompting or request for that additional information.
But it was for Ms Nagaki to satisfy the tribunal that there were compelling circumstances affecting the sponsor. She might choose to do that in any number of ways, but in this case she chose to focus upon a particular matter. There was no obligation on the tribunal to point out to her that there might be other matters that she might raise to establish the necessary circumstances. The issue before the delegate and determined by the delegate – whether there were compelling circumstances affecting the sponsor – was the same issue before the tribunal.
Ms Nagaki argues that the tribunal did not explain in its reasons for decision why it did not confine its considerations to the matters set out in the PAM. She argues that for that reason the tribunal’s decision demonstrates manifest unreasonableness “based both on principles explained in Drake and more recently enunciated by the High Court in Minister for Immigration v Li [2013] HCA 18.” But as I have set out above, the principles relating to unreasonableness in discretionary administrative decision making have no application here because the tribunal did not make a discretionary decision. Whether the tribunal applies policy set out in the first respondent’s PAM is a matter for the tribunal. A failure to follow that policy is not a jurisdictional error.
Ms Nagaki submits that: “The issue arises whether the Applicant and sponsor is how meaningful particulars of what Applicant and sponsor needed to address (without prior notice) at the 3 April 2014 hearing, and subsequent to the hearing and before the second respondent’s decision of 28 July 2014.” To the extent that this submission has any meaning, it misapprehends, again for the reasons I have set out above, the function of the tribunal. The tribunal was not obliged to give any “particulars” to Ms Nagaki or her sponsor. It was for them to make out their case. As Ms Nagaki submits (although in a way critical of the tribunal), the tribunal did attempt to provide some guidance when it said during the course of the hearing (at lines 67-77 of the transcript record annexed as Annexure “CAC-1” to the affidavit of Claire Amy Campbell):
So every aspect of the sponsor’s circumstances is relevant to the existing and compelling circumstances and while there’s no definitive list, the general aspects that can be particularly important are the nature of the hardship or the detriment that would be suffered by the spouse if the sponsorship was not approved, the extent and importance of ties the sponsor has to Australia, the consequence of hardship and detriment that would be suffered if the sponsorship was not approved, and the sponsor was to feel compelled to leave Australia to maintain the relationship with the visa applicant.
…
Compelling circumstances are not defined in the legislation, we have a look at the case law for that whether there are compelling circumstances affecting the sponsor as a matter of fact, and agreed by the tribunal to determine. So I must consider whether the circumstances are such that they invoke interest or intention in a powerfully irresistible way or they’re so powerful they leave the tribunal to make a finding that the provision should be made.
Ms Nagaki submits that the above statements of what might constitute “other compelling circumstances” were the only explanations provided by the tribunal member as to what Ms Nagaki and Mr Reghenzani might need to demonstrate in the (then still uncertain event) that she might ultimately determine that satisfaction of the PAM criteria would not, of itself, be sufficient grounds to make a finding favourable to Ms Nagaki. Ms Nagaki submits that in the concluding minutes of the hearing of 3 April 2014, the tribunal member made the following additional statements:
When I go through everything, if there is anything that comes up I will write to you and seek your comment. If I need to, if there is anything adverse that arises, I will either write to you or I will set aside another time for a hearing.
...
Um...as I said, if there is anything that I come across in the process, I... when considering the information you have provided, I will contact you.
Mr Reghenzani and Ms Nagaki have sworn that they relied on those statements as “a reassurance that they would be made aware that if there was any confusion or issues requiring clarification in their evidence including the evidence that the sponsor had agreed to provide subsequent to the hearing, the second respondent would either convene another hearing or at the very least write to the Applicant and sponsor alerting them to “anything adverse” that might arise in its consideration of the evidence prior to making a decision”.
As Ms Nagaki’s written submissions seem to concede, that was a subjective interpretation by Ms Nagaki and Mr Reghenzani. All that the tribunal was saying was that it would raise any matters required to be raised with Ms Nagaki. It was clearly a reference to the obligation on the tribunal to give to Ms Nagaki information that might form the reason or part of the reason upon which the tribunal might affirm the decision under review. It was nothing more than that.
Ms Nagaki argues that:
“these statements should be objectively assessed as giving rise to a reasonable expectation on the part of the applicant and sponsor that they would be alerted if anything adverse to the merits of their case might arise. These statements both informed the applicant and sponsor, and would have informed any reasonable person in the position of the applicant and sponsor, of their ongoing expectations of the level of ongoing procedural fairness that the second respondent was willing to provide in their case.
Further, these statements ought fairly and reasonably be interpreted as received by the Applicant and sponsor as vital reassurances of their expectations of ongoing procedural fairness given that they had arrived at the hearing without having led material or adequately prepared to argue beyond satisfaction of the PAM criteria, and that this was a fact within the knowledge of the tribunal member (or was otherwise evident or ought reasonably to have been evident) and was therefore an appropriate way of the second respondent dealing with a belated foreshadowing of the possible need for the Applicant and/or sponsor to prove more than the submissions and evidence already before the second respondent at the conclusion of the hearing.
But the difficulty with this argument is that the tribunal gave to Ms Nagaki the opportunity to provide any further material that she wished to provide to the tribunal in respect of the other matters that had been identified in the course of the tribunal’s hearing. She took up that opportunity (through Mr Reghenzani) and provided further material.
Subsequent to the hearing of 3 April, 2014 Mr Reghenzani gave two statutory declarations (sworn 30 April, 2014 and 2 July, 2014) to the tribunal for its consideration. They contained sworn evidence and attached purportedly corroborative documents addressing the following issues as evidence of other compelling circumstances:
a)explanations of anticipated serious detrimental impacts on his physical and health and welfare;
b)anticipated detrimental impacts on his career and financial position;
c)impacts on his immediate family and children in particular as a result of both an adverse decision and in consequence of the sponsor having to depart Australia;
d)the degree of emotional co-dependency between he and Ms Nagaki.
The tribunal accepted the receipt of those statutory declarations. The tribunal was required to do no more.
To the extent that these grounds of review suggest that tribunal did not comply with s.359A of the Act, the submissions and material before the Court do not reveal that he tribunal failed in that respect. Section 359A of the Act outlines the tribunal’s natural justice obligations with respect to what information must be put to an applicant before any decision is made. That section does not require the tribunal to put its subjective thought processes to an applicant. Section 359A of the Act forms part of the exhaustive procedural fairness requirements set out in Part 5, Division 5 of the Act. No further procedural fairness obligations are be imposed on the tribunal by s.359A alone or when read with s.357A(3) of the Act. In SZMOK (above) the Full Court said (in respect of the equivalent provisions concerning refugee review tribunal proceedings) at [16]:
Section 424A does not require the Tribunal to put its thought processes or preliminary conclusions to an Applicant (see SZBYR v Minister/or Immigration & Citizenship (2007) 235 ALR 609 at [18]). Further s 422B(3) should not be construed as imposing such an obligation or requiring s 424A to be interpreted as imposing such an obligation.
Ms Nagaki asserts that the dialogue between the tribunal and Ms Nagaki gave rise to a reasonable expectation on her part that Ms Nagaki would be “alerted to any [adverse] issues or information” with respect to the two findings the subject of these grounds. However, in my view nothing said by the tribunal gave rise to any obligation additional to that imposed upon the tribunal by s.359A of the Act.
Further, to the extent that Ms Nagaki’s submissions suggest that the tribunal represented to her that it would put particulars of any potentially adverse findings it proposed to make to her so as to give her an opportunity to respond, the submission cannot be accepted. The tribunal made no such representation. What the tribunal member said was that it would only put a matter to Ms Nagaki where it needed to do so. That was plainly a reference to matters that the tribunal was obliged to put to Ms Nagaki for her comment. The only source of such and obligation was s.359A(1) of the Act. Moreover, the tribunal’s comment was made after Ms Nagaki requested the opportunity to provide further evidence or submissions to the tribunal in the event that the tribunal required clarification on any matter which it considered was uncertain. The tribunal was plain not uncertain about the matters in respect of which it made findings.
Grounds 2(a)(i), 2(a)(ii) and 2(a)(iii) do not reveal any jurisdictional error. In particular, the tribunal did not fail to act in a way that was just and fair to Ms Nagaki because it did not foreshadow to her how it would determine her arguments before it gave its decision and thereby provide Ms Nagaki with further opportunities to persuade the tribunal to a different conclusion. Moreover, the tribunal did not fall into jurisdictional error by reiterating to Ms Nagaki the obligations cast upon the tribunal by s.359A of the Act.
In my view, Ms Nagaki was provided a fair or reasonable opportunity to address and make submissions in relation to the issues arising on the review.
These grounds of review reveal no error.
Ground 2(b)
Ground 2(b) of the Amended Amended Application of Review provides:
2. Further, or in the alternative, the decision of the second respondent was affected by jurisdictional error because:
…
b. Further or in the alternative, the second respondent did not comply with subsections 357A(3) and 359A(1) of the Migration Act by not allowing the sponsor an opportunity to address and explain what the second respondent (in paragraph 33 of the decision record) concluded to be an inconsistency in the evidence, whereby the sponsor had sworn in a statutory declaration lodged subsequent to the hearing that it would be “almost impossible for him to secure employment outside Australia”
This ground of review must fail because the tribunal was not obliged to give Mr Reghenzani any opportunity to explain any inconsistencies in the evidence that he had given. Mr Reghenzani was not a party to the application for review.
Moreover, s.359A(1) of the Act does not impose an obligation on the tribunal to put inconsistencies in a witness or an applicant’s evidence to that witness or an applicant. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said (in the context of an application for review from a decision of a refugee review tribunal):
[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
The principles set out in those passages relating to s.424A(1) apply equally to s.359A(1): Tran v Minister for Immigration and Citizenship (2008) 105 ALD 1826 at [28].
Section 357A(3) of the Act does not expand the scope of the procedural fairness obligations in s.359A(1) of the Act.
In my view, this ground reveals no jurisdictional error by the tribunal.
Ground 2(c)
Ground 2(c) of the further amended application provides:
2. Further, or in the alternative, the decision of the second respondent was affected by jurisdictional error because:
…
c. Further, or in the alternative, the second respondent did not comply with subsection 359A(1) of the Migration Act 1958 in failing to give to Ms Nagaki and sponsor clear or meaningful particulars of the second respondent’s intention to rely on information ultimately underlying its findings referred to in paragraph 2(a)(i) above.
Again, this contention must be rejected. The tribunal’s subjective “intention” is not “information” for the purposes of s 359A(l) of the Act: SZBYR (above). The only material information which the tribunal relied on was information provided by Ms Nagaki herself or through Mr Reghenzani. She was aware of the information from Mr Reghenzani. That information was not subject to the requirements of s.359A(1): ss.359A(4)(b) and (ba) of the Act.
I accept the first respondent’s submissions that this ground of review reveals no jurisdictional error.
Conclusion
As no jurisdictional error can be established by Ms Nagaki the decision is a privative clause decision under s.474(2) of the Act and is not reviewable under s.476 of the Act.
Accordingly, the application must be dismissed with costs.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 6 May 2016
12
20
3