Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 143
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143
File number: PEG 9 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 9 March 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Partner (Temporary) (Class UK) – where Tribunal found that cl 820.211(2)(d) in the Migration Regulations 1994 was not met because applicant did not meet Schedule 3 criteria and there were no compelling reasons not to apply Schedule 3 criteria – whether Tribunal failed to take into account relevant claims or submissions of matters said to amount to compelling reasons – whether Tribunal decision was illogical, irrational or unreasonable – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth), ss 476, 477(1)
Migration Regulations 1994 (Cth), reg 1.15A, Sch 2 cl 820.211, Sch 3 criterion 3001
Migration Regulations (Amendment) 1996 (No 75) (Cth).
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Feifia v Minister for Immigration and Border Protection [2020] FCCA 2941
Kumar v Minister for Immigration and Border Protection [2021] FCCA 1336
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 8 November 2021 Place: Perth Counsel for the Applicant: Mr D Blades Solicitor for the Applicant: Tang Law Counsel for the Respondents: Ms C Taggart Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 9 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KANNEN NAIDU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 MARCH 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision made by the second respondent on 11 December 2020.
2.A writ of mandamus issue directed to the second respondent, requiring the second respondent, differently constituted, to reconsider the application according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 December 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa). The Tribunal found that the applicant did not meet each of the Schedule 3 criteria, because the applicant did not apply for the partner visa within 28 days of last holding a substantive visa, as required by criterion 3001. The Tribunal further found that there were no compelling reasons for not applying the Schedule 3 criteria.
The application to this Court was brought under s 476 of the Migration Act 1958 (Cth). The original application was filed on 14 January 2021. On 7 May 2021 the applicant filed an amended application which raises eight grounds of review with particulars. One of these grounds, ground 2, was not pressed when the matter came on for hearing.
I have found that the Tribunal decision is affected by jurisdictional error and I issue writs to quash the Tribunal decision and remit the matter to the Tribunal for reconsideration according to law.
BACKGROUND
The applicant is a non-citizen who applied for the partner visa on 16 June 2017 on the basis of his engagement to the sponsor, Ms Hulkes (sponsor). He first arrived in Australia in 2011 on a student visa and was subsequently granted a Temporary Work (Skilled) visa (subclass 457). This visa was cancelled on 10 May 2017.
On 7 August 2017 the Department of Immigration and Border Protection wrote to the applicant and invited him to provide more information to support his application for a partner visa. The parts of that letter that are most relevant to the application before the Court state:
Schedule 3 Criteria – Compelling Reasons
When you lodged your Partner visa application you were not the holder of a substantive visa because your Temporary Work (Skilled) visa (subclass 457) ceased on 10 May 2017.
For Partner visa applications lodged within Australia, the Migration Regulations state that, if you are not the holder of a substantive visa at the time of lodging your Partner visa application, you must satisfy additional Schedule 3 criteria (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying the standard Partner visa criteria. Schedule 3 criteria does not apply to offshore Partner visas, and failure to satisfy Schedule 3 does not prevent you from lodging a Partner application outside Australia.
Criterion 3001 requires that an application was made within 28 days after your substantive visa ceased. You do not meet criterion 3001, however the Migration Regulations allows the Schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria.
The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria. Circumstances are considered on a case by case basis.
You (and your sponsor) are invited to put forward any claims you would like the Department to consider.
You should explain in detail the circumstances that led you to become a person who is not the holder of a substantive visa and provide information relating to any compelling reasons you may feel apply to your case.
You should also provide any relevant documents to support your claims.
On 25 August 2017 the applicant responded to the invitation to comment and provided a number of supporting documents.
A delegate of the Minister made a decision not to grant the applicant a partner visa on 4 December 2017. The delegate found that the applicant did not meet the requirements of cl 820.211(2)(d) in Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations) because:
(a)the applicant did not meet Schedule 3 criterion 3001 because the application was not made within 28 days of when he last held a substantive visa; and
(b)the delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
On 13 December 2017 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant provided a submission and a number of supporting documents to the Tribunal on or about 16 October 2018. On 15 October 2020 the Tribunal invited the applicant to provide information on whether he satisfied the Schedule 3 criteria and, if the Tribunal found that he did not meet those criteria, whether there were compelling reasons for not applying the Schedule 3 criteria. The applicant provided to the Tribunal a submission dated 26 October 2020 and various supporting documents.
The applicant, sponsor and several witnesses also gave evidence at a hearing before the Tribunal on 24 November 2020.
On 11 December 2020 the Tribunal affirmed the decision under review.
TRIBUNAL DECISION
The Tribunal referred to Department records that showed the applicant last held a substantive visa on 10 May 2017, and found that 10 May 2017 was the ‘relevant day’ as defined in criterion 3001(2). The partner visa application was lodged on 16 June 2017 and the Tribunal found that this was not within 28 days of the relevant day and, accordingly, the applicant did not satisfy criterion 3001.
The Tribunal then considered whether there were compelling reasons for not applying the Schedule 3 criteria. After summarising the evidence before it and the applicant’s representative’s oral submissions, the Tribunal provided the following reasons for not being satisfied that there were compelling reasons not to apply the Schedule 3 criteria:
(a)The Tribunal accepted that a temporary separation would be emotionally difficult for the applicant and the sponsor, and that the applicant plays a positive role in the lives of the sponsor’s two children. However, the Tribunal considered that the applicant could continue to provide emotional support to the sponsor and the children while offshore and that there was no evidence that his continued physical presence was vital for the children’s wellbeing.
(b)The Tribunal did not consider that the sponsor’s pregnancy was a sufficiently compelling reason to waive compliance with the Schedule 3 criteria because it found that the applicant and the sponsor pursued a pregnancy in full knowledge of the risk that the applicant might have to depart the country.
(c)In relation to the claim that the sponsor would find it difficult to manage as a single parent, the Tribunal observed that the sponsor had previously managed as a single parent and was not satisfied that the sponsor would be unable to repeat this whilst the applicant lodges a partner visa from offshore. The Tribunal considered that the sponsor could access government and community assistance if she needed somebody to physically assist her in looking after the children.
(d)The Tribunal accepted that the applicant provides financial support to the sponsor, and that the sponsor may struggle to pay her mortgage without his assistance. The Tribunal considered that the applicant could provide financial support from offshore if he chooses to do so, although it acknowledged that any income from employment in Mauritius would be less than the income he earns in Australia. The Tribunal did not consider that any financial disadvantage or loss arising from the applicant’s temporary absence from Australia would amount to a compelling reason for not applying the Schedule 3 criteria.
(e)The Tribunal accepted that the applicant provides emotional and physical support to his parents, but did not consider that the absence of the practical support the applicant is able to provide for a temporary period would cause significant hardship to the applicant’s parents.
(f)The Tribunal was mindful of processing times for offshore partner visa applications, but did not consider that there were any compelling reasons arising from the delay.
(g)The Tribunal acknowledged the sponsor’s brother’s concern that the sponsor would not be able to mentally cope on her own, but noted that there was no medical evidence to support a finding that the sponsor would suffer any psychological hardship if the applicant departs Australia.
(h)The Tribunal accepted that the applicant is a valued employee, but did not consider that any hardship to the applicant’s employer arising from the applicant’s temporary absence from Australia would amount to a compelling reason for not applying the Schedule 3 criteria.
The Tribunal did not consider that any of the matters advanced by the applicant, individually or cumulatively, amounted to compelling circumstances not to apply the Schedule 3 criteria. Accordingly, the Tribunal found that the applicant did not meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act. The applicant filed an amended application on 7 May 2021, advancing eight grounds of review.
The matter came before me for hearing on 8 November 2021. The applicant was represented by Mr Blades and the Minister was represented by Ms Taggart. Both parties filed written submissions ahead of the hearing in accordance with orders made by a Registrar of the Court. At the hearing the applicant read an affidavit of Elias Kuan affirmed on 30 March 2021 which annexed a transcript of the Tribunal hearing. The court book was tendered and marked as Exhibit 1.
RELEVANT LEGISLATION
The Tribunal found that the applicant did not meet the criteria in cl 820.211(2)(d)(ii) in Schedule 2 to the Regulations. Clause 820.211 is a time of application criteria, which relevantly provides:
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
...
(d) in the case of an applicant who is not the holder of a substantive visa – either:
…
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Criterion 3001 is the criterion that the Tribunal found the applicant did not meet. This criterion relevantly provides:
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) … the relevant day, in relation to an applicant, is:
…
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) …
whichever is later of:
(iii)the last day when the applicant held a substantive or criminal justice visa …
GROUND 1
The applicant alleges the following jurisdictional error by ground 1:
The Tribunal made a jurisdictional error by failing to take into account the length of the relationship between the applicant and the sponsor in its consideration of whether there were compelling reasons for not applying the Schedule 3 criteria.
Particulars
a.The Explanatory Statement to Statutory Rules 1996, No.75 (mentioned by the Tribunal at [52] (CB 335)), gave the example of a relationship of two years or longer as a circumstance in which a waiver may be justified.
b.The migration agent’s submission to the Tribunal dated 26 October 2020 (CB 252-3) raised the length of time since the Partner visa application was lodged (over 3 years and 4 months) as a factor for consideration (see CB 252, paragraph (a)).
Applicant’s submissions
The applicant submitted that the Tribunal made a jurisdictional error by failing to take into account the length of the relationship between the applicant and the sponsor in its consideration of whether there were compelling reasons for not applying the Schedule 3 criteria. In support of his submission that the length of the relationship can be a factor that gives rise to compelling circumstances, the applicant referred to the Explanatory Statement to the Migration Regulations (Amendment) 1996, No.75 (Explanatory Statement) which states that ‘the waiver will be exercised only where there are reasons of a ‘strongly compassionate’ nature such as: … where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’.
The applicant submitted that the length of the relationship was raised on behalf of the applicant in the submission by his representative dated 26 October 2020, which referred to the length of time since the partner visa application was lodged. It was also raised in the evidence at the hearing from the applicant’s father.
In his oral submissions, Mr Blades also referred to evidence that was before the Tribunal that the applicant moved into the sponsor’s house on 14 June 2016. Mr Blades submitted that in its reasons, the Tribunal had referred to one of the two examples in the Explanatory Statement as potentially comprising compelling reasons. The other example, regarding long-standing relationships of more than two years’ duration, was inexplicably not mentioned by the Tribunal.
Minister’s submissions
The Minister referred to the following general principles, which were said to be applicable to the consideration of grounds 1 to 6:
(a)The Tribunal is required to consider claims which have been made or which clearly emerge from the materials by engaging in an active intellectual process directly addressing the claim.
(b)It may be inferred that a decision-maker has failed to consider a claim if it does not mention it in its reasons.
(c)A failure to consider evidence will not in all circumstances amount to jurisdictional error unless it is established that the evidence was critical to the process of decision-making, in the sense that the evidence was so central to an applicant’s claims that by ignoring it, or failing to refer to it, the Tribunal could be said to have not properly considered the claims.
(d)The Tribunal is not obliged to refute, line by line, the relevant material, nor is it required to expressly refer to each individual piece of evidence and make findings regarding each individual piece of evidence.
(e)It is for the Tribunal, as part of its fact-finding function, to identify the material it finds relevant to its reasoning and give that material the weight it considers appropriate.
(f)As the Full Court of the Federal Court said in Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [37]:
… it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal …
(g)A finding that a decision-maker has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence.
In relation to ground 1, the Minister submitted that the applicant did not advance any specific claim before the Tribunal that the length of the relationship constituted a compelling reason for the Tribunal not to apply criterion 3001. The reference in the applicant’s particulars to ground 1 to the length of time since the application was lodged was not sufficient to give rise to a clearly articulated claim that the length of the relationship was a factor that justified waiver. In any event, that claim had no prominence in relation to the applicant’s claims overall and was not referred to at the Tribunal hearing by the applicant or his representative. No submission based on the Explanatory Statement was advanced before the Tribunal. The Tribunal referred in its reasons to the suggestion in the Explanatory Statement that the existence of an Australian citizen child was one of two examples that may amount to compelling reasons. The Minister submitted that this suggested that the Tribunal was aware of the existence of the other example, relating to the length of the relationship, and the absence of any further reference to this by the Tribunal reflects that no such claim was made.
Consideration
The Tribunal was required to consider the claims and submissions that were expressly advanced by the applicant in relation to whether there were compelling reasons for not applying the Schedule 3 criteria as well as claims that emerge clearly on the material before the Tribunal: see AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68], which were applied in relation to claims of compelling reasons not to apply Schedule 3 criteria in Kumar v Minister for Immigration and Border Protection [2021] FCCA 1336 (Kumar) at [16].
The length of the relationship may, of itself, amount to a compelling reason not to apply the Schedule 3 criteria: see Kumar at [17]; Feifia v Minister for Immigration and Border Protection [2020] FCCA 2941 at [49]. This was expressly referred to in the Explanatory Statement that accompanied the proposed amendments to the Regulations that led to the introduction of the relevant cl 820.211(2)(d) of the Regulations. This Explanatory Statement provides:
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a ‘strongly compassionate’ nature such as:
- where there are Australian-citizen children from the relationship; or
- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
The issues for determination in relation to ground 1:
(a)whether the applicant expressly claimed or submitted that the length of the relationship was a compelling reason not to apply the Schedule 3 criteria, or whether such a claim clearly emerged from the materials before the Tribunal; and
(b)if so, whether the Tribunal considered that claim or submission.
The applicant relies on the submission from his representative to the Tribunal dated 26 October 2020 as one of the bases for his assertion that he raised the length of the relationship as a compelling reason. In this submission, the representative refers to detailed submissions and supporting documents which had previously been provided to the Tribunal, and in particular detailed submissions provided to the Tribunal on 17 October 2018. The relevant part of the 26 October 2020 submission reads:
By way of update, we wish to bring to the Tribunal’s attention the following compelling reasons for not applying the Schedule 3 criteria:
(a)The length of time since the visa application was lodged to the present date. The visa application was lodged on 16 June 2017, over 3 years and 4 months ago …
In the submission dated 16 October 2018, the applicant’s representative referred to the applicant and the sponsor commencing a de facto relationship on 14 June 2016 and having lived together in a committed relationship since then. This was set out under the heading ‘history’ rather than in a section specifically addressing compelling reasons.
These are not the only references to the length of the relationship that the applicant advanced in his submissions and evidence to the Tribunal and Department. Others include:
(a)In his statement provided to the Department on 25 August 2017, the first substantive issue that the applicant mentioned was that he had been living with the sponsor for over 14 months at that time and had been saving for over eight months to apply for a partner visa.
(b)In his letter to the Tribunal dated 30 October 2020, the applicant said (emphasis added):
It has been a long wait since our application, but since then [the sponsor] and I only got stronger and stronger. We are two very determined person, and we always work and support each other. I could not have asked for anyone better to spend my life with. I don’t know how we will cope if we must live separate from each other, so I wish that the AAT will give us the opportunity to maintain our relationship. I would hate to see [sponsor] and the Kids go back to where we started a few years ago both financially and emotionally.
Mr Blades has also referred in his oral submissions to evidence that the applicant’s father gave to the Tribunal noting that the applicant and the sponsor have been in a relationship for four years.
The applicant could have been clearer in raising the length of the relationship as a compelling reason for the Tribunal’s consideration. However, I am satisfied that when viewed collectively, the evidence and submissions referred to at [28] to [30] raised the length of the relationship as a potential compelling reason that required consideration. The references to the length of time that has passed since the partner visa application was lodged, particularly in the applicant’s letter dated 30 October 2020, arise in a context that suggests it is not the length of time since the partner visa application was lodged per se which was said to amount to a compelling reason, but also the developments in the relationship that have occurred during that time. This directs attention to the length of and developments in the relationship.
The Tribunal did not consider whether the length of the relationship amounted to a compelling reason to waive the Schedule 3 criteria. This amounts to a jurisdictional error.
Further, and in any event, even if the Tribunal did not identify that the applicant had raised the length of the relationship as a compelling reason, the applicant still clearly and unequivocally raised the length of time since the visa application was lodged as a factor that amounted to a compelling reason in his submission dated 26 October 2020. The Tribunal was required to, but did not, consider this submission.
There was no suggestion by the Minister that any error as alleged by ground 1 would not be material. However, for completeness, the error was material in at least two ways. First, the Explanatory Statement suggests that the length of the relationship may, of itself, amount to a compelling reason for not applying the Schedule 3 criteria. Second, had the Tribunal properly understood the length of the relationship to be a factor, this could reasonably have affected its cumulative assessment of whether there were compelling reasons.
Ground 1 is established.
GROUND 2
Ground 2 was not pressed by the applicant and does not need to be considered in this judgment.
GROUND 3
Ground 3 reads:
The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim that there were compelling reasons for not applying the Schedule 3 criteria.
Particulars
a.The applicant and the sponsor claimed to the Department and the Tribunal that the applicant provides practical support to the sponsor while she is at work through taking care of his step-children and attending to home duties – such practical support including transporting the children to and from school, supervising them and preparing meals: see Court Book (CB) pages 45, 46, 134-135 (especially at [11]-[12]), 138-141 (especially at [6]-[13]), 177-180, 181, 182; 208, 295-6, 297-8; Affidavit annexing transcript of Tribunal hearing pages 10-12, 33-35 (especially at 35).
b.The Tribunal accepted that the applicant “plays a positive role in the children’s lives”; and considered that “the applicant can continue to provide emotional support to the children whilst his offshore Partner visa is being assessed.” (CB 335 at [51])
c.The Tribunal failed to consider the practical support provided by the applicant to the sponsor and the children in its assessment of whether there were compelling reasons for not applying the Schedule 3 criteria.
Applicant’s submissions
The applicant submitted that the Tribunal failed to consider the practical support that he provides to the sponsor, such as caring for the sponsor’s children and attending to home duties, including transporting the children to and from school, supervising them and preparing meals.
The applicant referred to a statement by the Tribunal at [51] of its reasons, where it said:
There was nothing before the Tribunal to support a claim that the applicant’s uninterrupted physical presence is vital for [the children’s] continuing well-being.
The applicant submitted that, contrary to the Tribunal’s finding, there was a great deal of evidence supporting the practical support that the applicant provides to the children. The applicant further submitted that in accepting that the applicant plays a positive role in the children’s lives and can continue to provide emotional support to the children while his offshore partner visa is being assessed, the Tribunal failed to consider the practical support when assessing whether there were compelling reasons for not applying the Schedule 3 criteria.
At the hearing, Mr Blades submitted that the Tribunal referred to emotional support in its reasons but has not addressed the separate claim of practical support. Mr Blades submitted that one should look at the substance of the Tribunal’s reasons to ascertain whether it gave consideration to the factors relevant to the case, and not simply take at face value the Tribunal statement at [48] that it has considered the factors relevant to the case including those raised by the applicant, the sponsor and the representative.
Minister’s submissions
The Minister submitted that the Tribunal expressly referred to the applicant’s claims and the witnesses’ evidence of the practical support the applicant provided to the sponsor and her children at [18], [22], [24], [31], [32], [34], [36]-[40] and [45] of its reasons. The Minister submitted that the Tribunal considered these claims and was not satisfied that they gave rise to compelling reasons. In circumstances where the claims were expressly identified and referred to by the Tribunal, an inference that the claim was overlooked should not be readily drawn, particularly in light of the Tribunal’s reference at [48] to having considered the factors relevant to the case ‘including those raised by the applicant, the sponsor and the representative’.
Consideration
The Tribunal clearly referred to the evidence of the practical support provided by the applicant to the sponsor in its summary of the evidence provided to the Tribunal. For example, at [22] the Tribunal said:
The applicant told the Tribunal that the sponsor depends on him for emotional and practical support and if he is required to temporarily depart Australia it would not be easy for her. In terms of practical support, he said he helps with the sponsor’s two sons from previous relationships including taking them to school and picking them up from their afterschool sporting activities. He said he makes the evening meal for the family if the sponsor has been working at her second job. He also gave the example of the sponsor needing assistance to open a can of tuna when she was at work recently. He went to her workplace with a can opener.
The Tribunal referred to the practical support that the applicant provides to the children at [24] where it said:
The applicant told the Tribunal that the sponsor’s sons from previous relationships, aged 14 and 11, depend on him to prepare them for school and make them dinner if the sponsor is working. He said that they have some contact with each of their biological fathers but not on a regular basis.
At [45] the Tribunal acknowledged a submission from the representative. The Tribunal said:
The representative submitted that the sponsor would find it difficult to be a single parent to two teenage sons. She said the applicant is a father figure to the sponsor’s sons on a consistent day-to-day basis because their biological fathers have limited involvement in their lives.
There were also passing references to practical or physical support at [32], [36], [38] and [46].
It is not enough for the Tribunal to simply refer to evidence in its summary. The Tribunal is required to engage in an active intellectual assessment of the claims before it: see, for example, Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 at [47]-[54]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 at [57]. The applicant has clearly raised the claim before the Tribunal that the practical support he provides to his family comprises a compelling circumstance for not applying the Schedule 3 criteria.
The question then becomes whether the Tribunal has considered this claim, in the sense that it has actively intellectually engaged with the claim. The Tribunal’s assessment of whether there were compelling circumstances not to apply the Schedule 3 criteria is set out at [48] to [59] of its reasons. At [48] the Tribunal stated that it had considered the factors relevant to the case including those raised by the applicant, the sponsor and the representative. It then identified the primary compelling reason as being that the sponsor will suffer emotional and financial hardship if the applicant is required to leave Australia.
There are two paragraphs in the Tribunal’s reasons which might potentially show some engagement with the claims about the support provided to the sponsor’s children. The first is [51] where the Tribunal said:
The sponsor’s two sons from previous relationships provided written statements to the Department in July 2018 in which they referred to their close relationship with the applicant and said he has been an involved and caring member of the household. At hearing the applicant and the sponsor spoke of the good relationship the applicant has with the sponsor’s sons. The witnesses said that applicant is a father figure to the children. The Tribunal accepts that the sponsor’s sons have good relationships with the applicant and want him to stay. The Tribunal accepts that the applicant plays a positive role in the children’s lives. The Tribunal considers, however, that the applicant can continue to provide emotional support to the children whilst his offshore Partner visa is being assessed. He can remain in contact with the children via a wide range of modes of communication. The Tribunal accepts the degree of support is not the same as the current situation. There was nothing before the Tribunal to support a claim that the applicant’s uninterrupted physical presence is vital for their continuing well-being. The Tribunal consider that the impact of the applicant’s temporary absence on the two children is, on the facts before it, not significant enough to represent a compelling reason to exercise the waiver.
In my view, this paragraph addresses the emotional support that the applicant provides to the children and the role that he plays in their life as a father figure. It does not address the practical day-to-day activities that the applicant does to support the sponsor in raising the children, such as transporting them to and from sporting events, preparing meals and getting them ready for school.
The second paragraph that is potentially relevant to this ground is [54] where the Tribunal said:
The sponsor and the witnesses told the Tribunal that the sponsor will find it difficult to look after her two sons from previous relationships and a newborn alone if the applicant temporarily departs Australia. The Tribunal notes that sponsor’ sons are currently aged 14 and 11 and are unlikely to require constant supervision. The Tribunal is of the opinion that the sponsor, as an Australian citizen, can obtain a wide range of government and community assistance if she requires someone to physically assist her in looking after the children whilst the applicant lodges a Partner visa application offshore. This can be through programs such as Government-sponsored childcare and family assistance provided financially by the Commonwealth. The Tribunal is of the view that some degree of hardship is to be expected when applying for an offshore Partner visa application. The Tribunal accepts that the sponsor will be taking on greater responsibility for the children if the applicant is compelled to return offshore temporarily to lodge a Partner visa application however notes that she has previously managed the care and support of her sons whilst a single parent. On the evidence before the Tribunal, the Tribunal is not satisfied that the sponsor will be unable to repeat this whilst the applicant lodges a Partner visa from offshore. In addition, the applicant’s parents are likely to continue to provide support to the sponsor and her children who they regard as part of their family.
In my view, this paragraph is sufficient to represent an active intellectual engagement with the applicant’s claims. The findings of the Tribunal, while general in nature, appear to be directed to the day-to-day responsibility for children. The general gist of the paragraph is that it may be harder for the sponsor to care for the children without the support of the applicant, but she will be able to do so, and other support is likely to be available. Although the Tribunal did not expressly mention in this paragraph the day-to-day practical support that the applicant provides, it was clearly aware of this as it had referred to it in its summary of the evidence.
Ground 3 is not established.
GROUND 4
Ground 4 asserts the following jurisdictional error:
The Tribunal made a jurisdictional error by overlooking relevant evidence in relation to the level of practical support provided by the applicant to the sponsor and the children.
Particulars
a.The sponsor made a detailed statement to the Tribunal dated 16 July 2018 in which she outlined the practical support provided by the applicant to her and the children (CB 177-180).
b.This statement was provided to the Tribunal by Rothstein Lawyers as an attachment to a submission dated 16 October 2018 (CB 131-196; see paragraph 2(b) at CB 131).
c.The Tribunal did not consider the sponsor’s statement of 16 July 2018 in making its decision.
Applicant’s submissions
The applicant submitted that, alternatively or additionally to ground 3, the Tribunal erred by overlooking relevant evidence in relation to the level of practical support provided by the applicant to the sponsor and her children. The applicant submitted that the Tribunal failed to consider a statement by the sponsor dated 16 July 2018 in which the sponsor outlined the practical support provided by the applicant to her and her children.
Minister’s submissions
The Minister submitted that the Tribunal considered the evidence of the applicant and the sponsor and explicitly referred to having received their statements at [17]-[18]. The Tribunal is not required to refer to every piece of information before it in the course of its reasons for decision and the applicant has not identified any particular matter referred to in the sponsor’s statement dated 16 July 2018 that the Tribunal has not considered.
Consideration
It is reasonably apparent from a review of the Tribunal decision as well as a review of the transcript of the Tribunal hearing that the Tribunal was primarily focused on the most recent statements provided by the applicant, the sponsor and other witnesses, rather than on the earlier statements of the applicant and sponsor. There is no reference in the Tribunal’s decision to the sponsor’s handwritten statement of 2018. However, that does not necessarily amount to jurisdictional error.
The Tribunal is not required to expressly refer to every piece of evidence before it. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE), the Full Court of the Federal Court said at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
The 2018 statement focused heavily on the family’s weekly routine at that point in time. The 2020 statement by the sponsor does refer to the 2018 statement but in the context of noting how far the family has come since that time. The 2020 statement refers to the sponsor’s pregnancy and the fact that she has reduced her work hours to spend more time at home, to rest and to maintain her well-being. It also refers to the applicant’s promotion at work.
In circumstances where the Tribunal focused on the sponsor’s more recent statement, and the circumstances of the family had significantly changed between the sponsor’s 2018 statement and her 2020 statement, I cannot infer from the Tribunal’s failure to refer to the 2018 statement that it overlooked or did not consider that evidence. It is more likely that the Tribunal considered, in view of the more up-to-date information before it, that the 2018 statement was no longer significant in its assessment of whether there were compelling reasons for not applying the Schedule 3 criteria.
Ground 4 does not establish jurisdictional error.
GROUNDS 5 AND 6
Grounds 5 and 6 both assert that the Tribunal failed to consider integers of the applicant’s claims that there were compelling reasons for not applying the Schedule 3 criteria.
Ground 5 reads:
The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim that there were compelling reasons for not applying the Schedule 3 criteria.
Particulars
a.The applicant claimed to the Tribunal that he would be providing emotional support to the sponsor during her pregnancy by attending appointments with her at which the father of the child is normally expected to be present (Transcript p 12; more generally, the statements of the applicant and sponsor, CB 295-8).
b.The Tribunal did not address this integer of the applicant’s claims in its decision.
Ground 6 reads:
The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim that there were compelling reasons for not applying the Schedule 3 criteria.
Particulars
a.The applicant and the sponsor both claimed that they want the applicant to be present at the birth of their child, see:
i.the applicant’s statement dated 30 October 2020 (CB 295-6), second page, third paragraph;
ii.the sponsor’s statement dated 29 October 2020 (CB 297-8), second page, first paragraph.
b.At the Tribunal hearing, the Tribunal acknowledged the applicant’s statement that he wants to be present at the birth (Transcript p 10).
c.The Tribunal failed to consider the statements of the applicant and the sponsor that they want the applicant to be present at the birth in its assessment of whether there were compelling reasons for not applying the Schedule 3 criteria.
Applicant’s submissions
The applicant submitted that the Tribunal erred by failing to consider statements that:
(a)he would be providing emotional support to the sponsor during her pregnancy including attending medical appointments with the sponsor (ground 5); and
(b)he and the sponsor both want the applicant to be present at the birth of their child (ground 6).
The applicant submitted that he had made substantial, clearly articulated arguments in relation to these statements that the Tribunal was required to consider. The Tribunal acknowledged the applicant’s evidence that he wanted to provide the sponsor with support during the pregnancy and be present at the birth, but never actually considered that submission. Instead, in relation to the pregnancy, the Tribunal focused on the reason why the applicant chose to conceive a child at a time when he did not have a substantive visa and its opinion that the sponsor would not be unable to manage the care and support of her sons whilst a single parent.
Minister’s submissions
In relation to ground 5, the Minister submitted that the Tribunal referred to the emotional support provided by the applicant to the sponsor, particularly in relation to her pregnancy, at [23] and [44], and also more generally at [32]. The Minister submitted that the Tribunal considered these claims and was not satisfied that they gave rise to compelling reasons. The Minister submitted that in circumstances where the claim was expressly identified and referred to by the Tribunal in its decision, an inference that the claim was overlooked should not be readily drawn.
In relation to ground 6, the Minister acknowledged that the desire of the applicant and the sponsor for the applicant to be present at the birth of the child was not specifically referred to in the Tribunal’s reasons. However, the Minister submitted that this was not a claim of prominence in the applicant’s claims as advanced at the hearing before the Tribunal. The Minister also submitted that, should the Court find that this integer arose on the material before the Tribunal, it was subsumed into findings of greater generality. The Tribunal gave careful and detailed consideration to the sponsor’s pregnancy and ultimately found that the applicant and the sponsor had proceeded with an in vitro fertilization (IVF) process whilst knowing that the applicant was not the holder of a substantive visa. The Tribunal found that, given those circumstances, the sponsor’s pregnancy did not constitute a compelling reason for waiver, and that finding was open to the Tribunal on the material before it.
Consideration
I am satisfied that the applicant expressly raised claims before the Tribunal to the effect that he would provide emotional support to the sponsor throughout the pregnancy and that he and the sponsor both wanted to the applicant to be present at the birth of their child. This evidence was acknowledged by the Tribunal at [17] of its reasons.
Although the Tribunal did not expressly address the claims in its consideration of whether there were compelling reasons for not applying the Schedule 3 criteria, it did make findings of greater generality. The Full Court of the Federal Court said in Applicant WAEE at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The specific claims the subject of grounds 5 and 6 were both matters about which the Tribunal did not need to make a specific finding because they were subsumed in findings of greater generality. The Tribunal made a clear finding at [53] that it did not consider the sponsor’s pregnancy to be a compelling reason. This subsumed the claim that the applicant wished to provide emotional support to the sponsor and the claim that both he and the sponsor wanted him to be present at the birth. The claim in relation to the emotional support that the applicant wanted to provide was also subsumed in the finding at [50] that any emotional hardship to the sponsor and her sons did not amount to a compelling reason for not applying the Schedule 3 criteria.
Grounds 5 and 6 are not established.
GROUND 7
Ground 7 reads:
The Tribunal’s decision is vitiated by unreasonableness, illogicality or irrational by reason of its findings at [54] (CB 335-6): “The Tribunal accepts that the sponsor will be taking on greater responsibility for the children if the applicant is compelled to return offshore temporarily to lodge a Partner visa application however notes that she has previously managed the care and support of her sons whilst a single parent. On the evidence before the Tribunal, the Tribunal is not satisfied that the sponsor will be unable to repeat this whilst the applicant lodges a Partner visa from offshore.”
Particulars
a.The Tribunal’s finding at [54] is unreasonable, illogical or irrational because in having a third child (whose delivery date is June 2021), the sponsor will not be “repeating” her previous childcare responsibilities but will be assuming responsibility for the care of the third child (an infant) in addition to caring for her two school-aged children.
Applicant’s submissions
The applicant submitted that the Tribunal’s finding at [54] is illogical or irrational because the Tribunal’s satisfaction that there were no compelling reasons not to apply the Schedule 3 criteria was based on its erroneous conclusion that the sponsor will be ‘repeating’ her previous childcare responsibilities, when in fact she will be caring for a newborn infant in addition to her two school aged children. The submissions of the applicant and the sponsor before the Tribunal emphasised the financial, practical, emotional, and psychological support that the applicant provides to the sponsor. The addition of a newborn child would logically increase the level of the sponsor’s need for the applicant’s assistance in these categories of support.
Minister’s submissions
The Minister submitted that the impugned finding at [54] of the Tribunal’s reasons is not a reflection of the Tribunal’s full consideration of the issues addressed in that paragraph. The Minister submitted that the Tribunal referred, also at [54], to the fact that the sponsor would have a newborn child, to the age and care needs of her two sons, and to the support that would be available to the sponsor in the circumstances in which she would find herself, including the support from her parents. The Tribunal had in other paragraphs discussed the circumstances of the sponsor’s pregnancy, including that the applicant and sponsor chose to become pregnant in full knowledge that the applicant did not hold a substantive visa and may need to depart Australia temporarily. The Minister submitted that the Tribunal articulated reasons for why it considered that the emotional hardship and absence of practical support from the applicant did not amount to compelling reasons to justify waiver, and those findings were open to the Tribunal on its assessment of the evidence.
Consideration
The test for unreasonableness, illogicality or irrationality in relation to fact-finding by a tribunal is a stringent one. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, the High Court (Crennan and Bell JJ) said at [135]:
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …
In the present case, I do not find that the impugned finding of the Tribunal is illogical, irrational or unreasonable. The applicant’s submissions place particular emphasis on the Tribunal’s use of the word ‘repeat’ in its finding that the sponsor would be able to repeat the experience of being a single parent to two children. This misses the focus of the Tribunal’s reasoning when considered in context and suggests that the applicant is encouraging the Court to view the Tribunal’s reasons with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30] At [54] of its reasons, the Tribunal is conveying its finding that any difficulties the sponsor may face in her role as a parent while the applicant is offshore applying for a partner visa do not amount to compelling reasons for not applying the Schedule 3 criteria, taking into account the other support that will be available to the sponsor and the sponsor’s past experience as a single parent. The word ‘repeat’ should not be understood to amount to a finding that the sponsor’s expected experience as a single parent for her children, including a newborn baby, would be exactly the same as her experiences as a single parent in the past.
There was evidence before the Tribunal that the sponsor would be able to cope as a single parent, albeit with greater difficulty than she would face if the applicant was present. For example, in her oral evidence at the hearing, the sponsor’s mother said:
So to go for a pregnancy by herself and such a long gap between pregnancies would be very emotional on [the sponsor], being an older mum and also having two teenagers and raising a newborn by herself would be quite hard work. So I feel that she is more than capable of raising the children, but to have that partner be stable and helping all 3 children would definitely be a good thing for her.
The impugned finding, properly understood as a finding that the sponsor would be able to cope as a single parent, was open to the Tribunal on the evidence before it.
Ground 7 is not established.
GROUND 8
Ground 8 reads:
The Tribunal made a jurisdictional error by failing to formally consider whether the parties were in a genuine relationship at the time the visa application was lodged.
Particulars
a.At [16] (CB 330), the Tribunal noted that the original decision maker had not undertaken a formal assessment to determine whether the applicant and the sponsor were in a genuine relationship at the time the application was lodged, and the Tribunal stated “Accordingly, the Tribunal has also refrained from formally considering this issue”.
b.The Tribunal noted at [14] that “… a decision maker is not confined to having regard to circumstances that amount to compelling circumstances only at the time of application and that the applicant’s circumstances as a whole are to be taken into account.”
c.In taking into account the applicant’s circumstances “as a whole”, the Tribunal ought to have considered whether the applicant and sponsor were in a genuine relationship at the time of its decision.
Applicant’s submissions
The applicant submitted that the Tribunal erred by failing to formally consider whether the applicant and sponsor were in a genuine relationship at the time of the visa application. The applicant submitted that in taking into account the applicant’s circumstances ‘as a whole’, the Tribunal ought to have formally considered whether the applicant and sponsor were in a genuine relationship at the time of its decision.
In advancing this ground, the applicant relied on the judgment of Judge Lucev in Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091 (Wu) in which his Honour held that the Tribunal erred in considering whether to waive the requirements of Public Interest Criteria (PIC) 4020(1) of Schedule 4 to the Regulations by failing to consider the matters in reg 1.15A concerning whether the parties are in a genuine relationship: at [36]-[37]. The applicant acknowledged the different wording of cl 820.211(2)(d)(ii), which requires there to be ‘compelling reasons for not applying’ the Schedule 3 criteria, and the waiver in PIC 4020(4)(b), which requires the Minister to be satisfied that ‘compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an illegible New Zealand citizen … justify the granting of the visa’. The applicant submitted that although in cl 820.211(2)(d)(ii) the waiver applies more broadly where there are ‘compelling reasons’ and is not tied to the interests of another person, it is obvious in the context of making a decision in relation to a partner visa that the interests of the sponsor must be central to the question posed under cl 820.211(2)(d)(ii).
Minister’s submissions
The Minister submitted that the effect of the judgment in Wu is to require a decision-maker, in any case involving consideration of the waiver of PIC 4020 in relation to a partner visa application, to actively engag with, consider and make findings in relation to each of the matters in reg 1.15A(3) of the Regulations before determining whether the requirements of PIC 4020 should be waived. The Minister submitted that the judgment in Wu is plainly wrong and ought not to be followed, noting that it is not consistent with the approach taken by decision-makers generally in relation to matters involving PIC 4020 and which have been reviewed by the courts and not found to have given rise to error. The Minister submitted that the matters in reg 1.15A(3) are not mandatory considerations in relation to the discretion to waive the requirements of PIC 4020 or Schedule 3 criterion 3001, although clearly in some cases those matters may arise and need to be considered in determining whether there are compelling or compassionate circumstances in a particular case, particularly depending on the submissions advanced by the applicant.
In her oral submissions at the hearing, Ms Taggart submitted that, alternatively to the principle of Wu identified in the Minister’s written submissions, Wu could be understood to stand for the proposition that where the Tribunal or a decision-maker proceeds as if a relationship is established, or makes an assumption that a relationship is established, without actually considering that matter taking into account the reg 1.15A factors, the Tribunal may err.
The Minister submitted that, in the event that the Court finds that Wu was not wrongly decided, the present case is distinguishable from Wu. This is because in Wu the Tribunal said that it would assume a genuine relationship existed, whereas in the present case the Tribunal indicated that it would refrain from formally considering and assessing the genuineness of the spousal relationship. The Minister submitted that the Tribunal in this case considered and actively engaged with the applicant’s submissions and claims in determining whether there were compelling reasons to justify waiver of the Schedule 3 criteria. The Minister also submitted that Wu is distinguishable based on the different wording in cl 820.211(2)(d) of the Regulations and in PIC 4020(4)(b).
Consideration
In circumstances where I have already found that jurisdictional error is established in relation to ground 1, it is not necessary for me to resolve all other grounds. In relation to ground 8, the applicant is asking me to extend the Court’s finding in Wu to the consideration of whether there are compelling reasons for not applying the Schedule 3 criteria and the Minister is suggesting that Wu is plainly wrong. There is potential for any finding that I make in relation to this ground to impact the approach that the Tribunal is required to take in a number of cases. While I appreciate that both parties have exerted considerable effort in advancing their respective submissions on this ground, I think the preferable course is to refrain from determining this ground in this particular matter. It seems to me that it is more appropriate for the issues raised by this ground to be resolved in a matter where those issues are determinative of the outcome.
CONCLUSION
I have found that ground 1 establishes jurisdictional error. It follows that the application succeeds and I issue writs to quash the Tribunal decision and to require the Tribunal, differently constituted, to reconsider the application according to law.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 March 2022
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