Namesa v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 216
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Namesa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 216
File number: MLG 157 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 22 March 2023 Catchwords: MIGRATION – decision of Administrative Appeals Tribunal affirming refusal to grant Partner (Temporary) (Class UK) visa – where Tribunal found that cl 820.211(2)(d) in Migration Regulations 1994 (Cth) was not met because applicant did not meet Schedule 3 criteria and there were no compelling reasons not to apply Schedule 3 criteria – whether adverse factual findings were without evidentiary basis – whether Tribunal misunderstood and misapplied the term ‘compelling reasons’ – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) Sch 2, cl 820.211, Sch 3, criterion 3001
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
ATT20 v Minister for Immigrationand Border Protection [2020] FCCA 499
Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403; [2021] HCA 41
MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478
Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490
Singh v Minister for Home Affairs [2020] FCAFC 7
Singh v Minister for Immigration [2019] FCCA 335
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3245
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 490
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 2 March 2023 Place: Perth Counsel for the Applicant: Mr T Silva Counsel for the First Respondent: Ms J Nikolic Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz Lawyers ORDERS
MLG 157 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAOMI NAMESA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
22 MARCH 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 made by the Administrative Appeals Tribunal (Tribunal) affirming an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant alleges that the Tribunal made three jurisdictional errors in finding that there were not compelling reasons not to apply the criteria in Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations). For reasons explained below, I have found that the applicant has not established jurisdictional error in the Tribunal decision and I dismiss the application for judicial review.
FACTUAL BACKGROUND
The applicant is a non-citizen who arrived in Australia in August 2012 on a tourist visa. That tourist visa is the only substantive visa the applicant has held in Australia and it expired on 30 November 2012.
On 26 November 2012 the applicant applied for another substantive visa. A delegate of the Minister made a decision not to grant the applicant that substantive visa on 22 July 2013. The applicant sought merits review of that decision and the decision was affirmed by a tribunal on 2 December 2013. An application for judicial review in respect of that tribunal decision was dismissed by the Federal Court on 23 November 2015.
In December 2015 the applicant requested Ministerial intervention and this request was deemed inappropriate to consider on 29 April 2016.
On 29 November 2016 the applicant applied for a partner visa based on her relationship with Mr Rawaqa (sponsor). A delegate of the Minister refused to grant the applicant a partner visa on 22 August 2017. The delegate found that the applicant did not satisfy cl 820.211(2)(d) in Schedule 2 to the Regulations because she was not the holder of a substantive visa at the time of application and there were no compelling reasons to waive the Schedule 3 criteria.
The applicant applied to the Tribunal for merits review of the decision on 7 September 2017. On 11 December 2017 the applicant attended a hearing before the Tribunal at which both she and the sponsor gave evidence. The Tribunal affirmed the delegate’s decision on 20 December 2017.
TRIBUNAL DECISION
The Tribunal found that the applicant did not have a substantive visa at the time of application and identified that the issue for its consideration was whether the applicant satisfied the Schedule 3 criteria or whether there were compelling reasons for not applying those criteria.
The Tribunal found that the applicant did not satisfy criterion 3001, which required that the visa be lodged within 28 days of the relevant day as defined in criterion 3001(2). The Tribunal found that the applicant applied for the partner visa on 29 November 2016 and was not the holder of a substantive visa at the time. The relevant day in the present case was the day the applicant last held a substantive or criminal justice visa, being 30 November 2012, and the partner visa application was not lodged within 28 days of that date.
The Tribunal acknowledged the evidence before it from the applicant and sponsor that they entered into a very intense relationship from the time they met in January 2013. The Tribunal accepted that married couples who are required to live separately whilst awaiting the outcome of their visa applications will generally be unhappy about the separation, but considered that this was the situation for most people applying for a partner visa offshore. The Tribunal accepted that a period of separation would present some difficulty for the applicant and sponsor, but did not consider that the difficulties that may arise were not reasonably foreseeable at the time of entering into the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa. The Tribunal did not consider that any emotional difficulties that may arise for the relationship during separation whilst waiting for a visa application to be processed offshore amounted to a compelling reason not to apply the Schedule 3 criteria.
The Tribunal acknowledged that although the applicant and sponsor had only been married for approximately six months at the time of application, they had been in a relationship for nearly four years. The Tribunal observed that a genuine spousal relationship is the basic requirement for a partner visa application and there was no evidence before the Tribunal from the applicant and sponsor that the genuineness, mutual commitment, continuing nature and longevity of the relationship was somehow in and of itself a circumstance that should compel the Tribunal not to apply the Schedule 3 criteria. The Tribunal was not satisfied that the relationship of itself was a compelling reason not to apply the Schedule 3 criteria.
The Tribunal acknowledged the applicant’s evidence that she and the sponsor did not know how to go about lodging a partner visa application. However, the Tribunal did not accept that lack of knowledge of the migration process amounted to a compelling reason not to apply the Schedule 3 criteria, noting that it was open to the applicant to obtain advice from an accredited migration agent at any time.
Having considered the above matters, the Tribunal was not satisfied that the matters, separately and cumulatively, were compelling reasons to not apply the Schedule 3 criteria.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 22 January 2018, which is within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
By an amended application filed on 14 July 2022, the applicant advances three grounds of application. The grounds are set out under separate headings below.
The evidence before the Court comprises the court book filed on behalf of the Minister and an affidavit of Sylvia Nicholas Silva affirmed on 30 January 2019 which was filed on behalf of the applicant and which annexes a transcript of the hearing convened by the Tribunal.
GROUND 1
Ground 1 reads:
The Tribunal made jurisdictional error in that the Tribunal’s ultimate view or opinion that it was not satisfied that there are compelling reasons to not apply the Schedule 3 criteria was vitiated by reasons of an error or errors in its formation
Particulars
(a)Although the Tribunal stated at CB256[47] that it considered all of the relevant issues separately and cumulatively, it was only a bare statement, in fact it did not consider them cumulatively since there was no indication how it weighed various matters together or in relation to each other or how one interacted with the other. It is also apparent it considered them only separately and dismissed them.
(b)At CB255[44] the Tribunal accepted that (i) The parties (sponsor and the applicant) commenced living together in 2016 and at the time of the application they had been in a relationship for approximately four years (ii) At the time of the decision they have been in a married relationship for 18 months.
(c)At [44] the Tribunal further stated:
As a genuine spousal relationship is the basic requirement for a partner visa application, and there is no evidence before the Tribunal from the parties that the genuineness, mutual commitment, continuing nature and longevity of their relationship is somehow, in and of itself, a circumstance that should compel the Tribunal to not apply the Schedule 3 criteria. In the particular circumstances of this case the Tribunal is not satisfied that the relationship of itself is a compelling reason not to apply the schedule 3 criteria.
(d)Once it determined that as identified in (c) above, the relationship of itself was not a compelling reason, then it must explicitly have considered whether various other factors present in combination with the relationship of itself was sufficient to be a compelling reason, which process it failed to undertake transparently.
(e)The Tribunal failed to consider all the factors that may impact on the “compelling circumstances” cumulatively as set out below:
(i)The four-year relationship;
(ii)18 months married relationship;
(iii)The mature age of the couple – being 60 & 61;
(iv)The charity work done by the applicant;
(v)The close relationship between the applicant and the sponsor’s children and sponsor’s former wife, giving stability to the children. Although at [41] the Tribunal referred to that, at [43] it only dealt with emotional difficulties which implies it was hardship of separation between the parties as stated at [42] that it considered and it did not discount the possibility that stability to the sponsor’s children could be a compelling circumstance or it can contribute towards compelling circumstance;
(vi)The sponsor’s back pain; and
(vii)The sponsor’s shift work.
Relevant issues, principles and authorities
Before engaging in an analysis of the Tribunal’s approach in the present matter, it is convenient to identify the applicant’s argument at a high level of generality and address the relevant principles and authorities.
The applicant’s main complaint in ground 1 is that, in the applicant’s view, the Tribunal did not conduct a cumulative assessment of the reasons advanced by the applicant as compelling reasons not to apply the Schedule 3 criteria. The applicant submitted that the words ‘compelling reasons’ in cl 820.211(2)(d) mean that the compelling reasons must be taken cumulatively and the Tribunal will have made a jurisdictional error if it did not consider the reasons cumulatively. Although the Tribunal said that it considered the reasons ‘separately and cumulatively’, in the applicant’s submission, this is a mere statement and in fact the Tribunal did not consider all the separate reasons cumulatively because there is no indication in the Tribunal reasons as to how the Tribunal weighed the various matters which were relevant cumulatively, some of which were in support of and some against the applicant.
Both parties referred to a number of cases addressing principles relevant to the task of the Tribunal in assessing whether there were compelling reasons and the task of the Court in assessing whether the Tribunal decision is affected by jurisdictional error. Many of these principles are conveniently summarised by Bromberg J in MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478, where his Honour said at [9]-[17]:
9 Clause 820.211(2)(d)(ii) is in the following terms:
(d)in the case of an applicant who is not the holder of a substantive visa – either:
(i)…
(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.
10That subclause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] per Crennan J. The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24] per Tamberlin, Conti and Jacobson JJ.
11As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
[10] … Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.
12In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
13 The decision-maker needs to be “satisfied” that compelling reasons exist.
14The limitations upon a judicial review of the exercise of a power or discretion conditioned upon a decision-maker reaching an opinion or state of satisfaction was a matter addressed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; (2003) 73 ALD 1; [2003] HCA 30 (Applicant S20/2022). Gleeson CJ at [8] referred to the following statement by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] ALR 792 at 793 (Avon Downs):
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.
15In Applicant S20/2002, McHugh and Gummow JJ at [36] observed that a stricter view should be taken as to what must be shown in order to make out jurisdictional error in circumstances where the power exercised by the decision-maker is conditioned upon the decision-maker’s satisfaction that a certain state of affairs exists and that state of affairs includes factual matters. Their Honours referred to R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100; [1953] ALR 461; where at CLR 120; ALR 468 Dixon CJ, Williams, Webb and Fullagar JJ said:
The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.
16Kirby J at [126] in Applicant S20/2002 said:
[126] As Latham CJ explained in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [(1944) 69 CLR 407; [1944] HCA 42], on review a court's inquiry is limited to determining “whether the opinion required by the relevant legislative provision has really been formed”. Where the decision and the reasons and critical findings of fact that form the basis of that decision are recorded (as was obligatory under the [Migration Act 1958 (Cth)] in the present case) the Tribunal’s reasoning may disclose a misconception about the nature of the fact-finding process required by the Act. It may then become apparent that the fact-finding has miscarried to a significant degree, in the sense that it does not conform to the requirements, express or implied, in the empowering statute. In such circumstances it may be concluded that the opinion or satisfaction reached was not the kind of opinion contemplated by the statute. In each case, the identified pre-condition for the exercise of the power conferred would not be fulfilled.
17What each of those statements of principle show is that if jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at.
I take these principles into account in addressing this ground.
In submitting that the Tribunal did not set out how it weighed various matters and therefore did not undertake a cumulative assessment, the applicant relied on Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114. In that case, the Full Court (Kenny, Griffiths and Mortimer JJ) said at [50]:
… In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact…
This case is of limited assistance to the applicant. The Tribunal in the present matter was not weighing competing pieces of evidence, but rather was considering the matters advanced by the applicant individually and cumulatively to decide whether or not it was satisfied that there were compelling reasons to waive the Schedule 3 criteria.
The applicant also relied on the judgment of Judge Barnes in ATT20 v Minister for Immigrationand Border Protection [2020] FCCA 499 (ATT20). In that case, the applicant raised a ‘combination of circumstances’ in support of his contention that there were compelling circumstances to waive the Schedule 3 criteria: ATT20 at [65]. In its fact finding, the Tribunal found that each of the particular issues raised by the applicant and the sponsor did not separately constitute a compelling reason not to apply the Schedule 3 criteria, before concluding generally without further consideration or explanation that, having considered the ‘above’ issues, it was not satisfied that these matters ‘separately and cumulatively’ were compelling reasons not to apply the Schedule 3 criteria: ATT20 at [66]. Her Honour expressed a number of concerns with the Tribunal’s approach, including the absence from the Tribunal decision of any consideration of why the various factors did not cumulatively amount to compelling reasons: ATT20 at [75]. Her Honour said at [76]:
In the absence of such explanation, it appears on the face of the Tribunal decision that it proceeded on the basis that each matter raised in support of the contention that there were compelling reasons must in itself be a compelling reason. There was no proper, genuine and realistic consideration, in the sense of active engagement beyond a cursory consideration, with the Applicant’s contention … that a combination of circumstances amounted to compelling reasons in his case.
ATT20 shows that there may be some cases where jurisdictional error is established in circumstances where an applicant submits to the Tribunal that a combination of circumstances gives rise to compelling reasons and the Tribunal reasons properly construed demonstrate that the Tribunal did not consider whether those circumstances cumulatively amounted to compelling reasons. An assertion that the Tribunal considered the matters ‘separately and cumulatively’ will not in all cases be sufficient to demonstrate that the Tribunal considered the reasons advanced cumulatively.
However, I accept the Minister’s submission that it is not necessary in all cases for there to be a separate ‘rolled up’ consideration of the various reasons advanced by an applicant. This can be seen from Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 490 (Zhang), where Judge Lucev said at [18]:
A careful reading of MZYPZ at [12] per Bromberg J also demonstrates that the Federal Court was not there suggesting that an active intellectual engagement or process for the purposes of cumulative consideration of relevant matters required a separate “rolled up” consideration of all the relevant matters. Rather, it is said that a single circumstance or a multitude of circumstances might be considered, and ultimately the question is whether the circumstances as a whole compel the exercise of the discretion conferred. Nowhere is it suggested that consideration of this question requires further detailed consideration of each of the matters already considered as part of a decision-maker’s consideration. Indeed, the Federal Court in MZYPZ at [13] per Bromberg J went on simply to say, in familiar terms, that “[t]he decision-maker needs to be “satisfied” that compelling reasons exist”…
In determining whether the Tribunal has considered the whole of the circumstances, it is relevant to consider the manner in which the applicant advanced her claims of compelling reasons to the Tribunal. For example, in Choi v Minister for Immigration and Border Protection [2018] FCA 291 (Choi), Allsop CJ accepted at [19] that the Tribunal’s approach to evaluating the different claimed circumstances was explained by how each of the claimed circumstances were put to the Tribunal in submissions. Likewise in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3245 (Singh) at [64], Judge Riethmuller took into account that the applicant did not specifically put to the Tribunal that the various reasons she and the sponsor advanced combined or compounded in a specific way that would require the Tribunal to provide further reasons than it did.
For these reasons, the applicant’s reliance on MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 (MZWDP) does not assist her in the present case. I accept that MZWPD supports the proposition that consideration of a number of individual circumstances and a statement that the Tribunal considered the evidence ‘as a whole’ does not necessarily amount to a cumulative assessment of an applicant’s claims for protection. However, Weinberg J’s finding that there was jurisdictional error because the Tribunal did not consider whether the husband’s claims, when considered cumulatively, amounted to serious harm was made in the context of considering whether the Tribunal had properly understood the true nature of the applicant’s claims: see MZWPD at [61]. The outcome was based on the manner in which the applicant articulated his claims, namely, that a series of misfortunes that had befallen him showed a pattern of ‘long standing and insidious anti-Semitism’: see MZWPD at [65], [69]. The judgment in MZWPD does not support any proposition that the Tribunal was required to separately set out reasons for its cumulative consideration of whether there are compelling reasons not to apply the Schedule 3 criteria in every case where the existence of compelling reasons needs to be determined.
Consideration of the Tribunal decision in the present case
Given that the level of detail required in any cumulative assessment of the various circumstances advanced by the applicant will turn on the way in which the applicant’s case was advanced before the Tribunal, it is convenient to consider the way in which the applicant presented her case before turning to the Tribunal’s reasons.
Having reviewed the documents that the applicant provided to the Tribunal (contained in the court book) and the transcript of the Tribunal hearing, I accept the Minister’s submission that the applicant did not submit to the Tribunal that the various reasons she and the sponsor advanced combined or compounded in any specific way that would require the Tribunal to undertake a detailed cumulative assessment: see also Singh at [64].
In its reasons, after identifying the application before it and setting out some background facts, the Tribunal then proceeded to summarise the evidence given by the applicant and the sponsor at the hearing. I have reviewed the transcript of the hearing before the Tribunal and I am satisfied that the summary of the evidence is both accurate and comprehensive. The Tribunal then proceeded to consider the claims and evidence before it. In considering whether there were compelling reasons for not applying the Schedule 3 criteria, the Tribunal set out some general principles of law, and then addressed the evidence under the following subheadings: ‘Effect of separation on relationship’; ‘Long term relationship’; ‘Effect of lack of knowledge’ and ‘Overall Assessment’. While the Tribunal in its discussion under these headings alluded to the evidence that it had summarised earlier in its reasons, it did not repeat this evidence in any comprehensive way.
After setting out its reasoning in relation to the effects of separation on the relationship, the long-term nature of the relationship and the effect of the applicant’s lack of knowledge of migration processes, the Tribunal said at [47]-[50] of its reasons under the heading ‘Overall Assessment’ (emphasis added):
47.Having considered all of the above issues the Tribunal is not satisfied that these matters separately and cumulatively, are compelling reasons to not apply the Schedule 3 criteria.
48.The Tribunal acknowledges that the sponsor would strongly prefer that the applicant remains in Australia. However, the Tribunal is not satisfied on the basis of the evidence before it that either party will suffer emotional or physical hardship if the applicant returns to Fiji to apply for the visa.
49.The Tribunal accepts that the parties will understandably be unhappy about being apart while the applicant applies for the visa offshore. However, the Tribunal does not consider that unhappiness resulting from separation, potentially for a limited period, is a compelling reason not to apply the criteria. Many couples are required to experience temporary separation at some stage in their relationship. The Tribunal is satisfied that the parties can continue to provide each other with emotional support when they are apart using the range of communication tools that are available.
50.The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
The applicant has made a number of complaints about the approach of the Tribunal under each subheading and the approach of the Tribunal overall.
In relation to the discussion under the heading ‘Effect of separation on relationship’, the applicant submitted that there were two main issues addressed, namely, the emotional difficulties due to separation and the positive contribution that the applicant made to the life of the sponsor, but in its conclusion under that heading, the Tribunal considered only the emotional difficulties and not in combination with the positive contribution of the applicant on the life of the sponsor.
I do not accept this submission. The Tribunal at [41] acknowledged the evidence of the applicant and the sponsor entering into an intense relationship from the time they met in January 2013 and referred to the evidence that they are now living together and emotionally dependent on each other. The Tribunal referred to the sponsor’s evidence that the applicant assists him to be able to continue working and of the positive influence that she has on his family. The specific nature of the assistance that the applicant provides to the sponsor and the positive impact that she has on his family is not identified at [41], but it is apparent that the Tribunal was referring to the evidence given by the sponsor at the hearing and summarised earlier in the Tribunal’s reasons. At [42], the Tribunal acknowledged that a period of separation would cause some difficulties for the applicant and sponsor, but considered that these difficulties were foreseeable at the time of entering into the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa. Nothing in the text of this paragraph limits the acknowledgement of difficulties to emotional difficulties. While I acknowledge at [43] that the Tribunal referred only to the ‘emotional difficulties’ that may arise during a period of separation not amounting to a compelling reason, I do not consider that this demonstrates that the Tribunal failed to consider the assistance the applicant provides to the sponsor, or the positive impact that she has on the sponsor’s family, either individually or cumulatively with other factors.
I have three main reasons for reaching this conclusion. First, it is clear when [41]-[43] of the Tribunal reasons are read together that the Tribunal considered the effect of separation on the relationship beyond simply the emotional impact of separation. Second, in any event, some of the sponsor’s evidence about the assistance provided by the applicant and the positive impact that she has on his family might appropriately be seen to fall under the broad umbrella of emotional difficulties that would arise if the applicant and the sponsor had to separate so that the applicant could apply for the visa offshore. Third, the Tribunal reasons must be read as a whole and, to the extent that some of the assistance provided by the applicant to the sponsor would not amount to ‘emotional difficulties’, it would appropriately be considered to be ‘physical hardship’ and addressed within the Tribunal’s reasons at [48]. This type of ‘physical hardship’, on the evidence before the Tribunal, would appear to encompass the domestic tasks that the applicant does, such as cooking, washing and helping to look after the sponsor’s children, which the sponsor said makes his life easier and enables him to spend more time with his children.
Under the heading ‘Long term relationship’, the Tribunal accepted that the applicant and the sponsor had been in a relationship for nearly four years, that they commenced living together in 2016 and, at the time of the Tribunal’s decision, had been married for approximately 18 months. The Tribunal then said at [44]:
As a genuine spousal relationship is the basic requirement for a partner visa application, and there is no evidence before the Tribunal from the parties that the genuineness, mutual commitment, continuing nature and longevity of their relationship is somehow, in and of itself, a circumstance that should compel the Tribunal to not apply the Schedule 3 criteria. In the particular circumstances of this case the Tribunal is not satisfied that the relationship of itself is a compelling reason not to apply the Schedule 3 criteria.
The applicant submitted that once the Tribunal determined that the relationship of itself was not a compelling reason, it must have explicitly considered whether various other factors present in combination with the relationship of itself was sufficient to be a compelling reason, but it did not undertake this process, or it did not undertake this process transparently.
In my view, the Tribunal’s finding that the applicant and the sponsor did not persuade it that the relationship of itself was a compelling reason not to apply the Schedule 3 criteria was open to it on the evidence, and is not inconsistent with cases such as Choi at [34], which suggest that additional impetus beyond the existence of a genuine relationship may be required to demonstrate that the Schedule 3 criteria should be waived: see also, Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490 at [53].
The Tribunal’s reasons at [44] clearly show that the Tribunal considered whether the relationship, taking into account its length and genuineness, amounted to a compelling reason and found that it did not. The use of the words ‘of itself’, which the applicant has repeatedly emphasised in written and oral submissions, reflects the Tribunal’s understanding that there might be some cases where there is some particular feature of the relationship that means that the relationship can amount to a compelling reason, or that a relationship might, when considered with other factors, amount to a compelling reason. The Tribunal did not consider this to be such a case.
For the reasons that I explain later in this judgment, I am satisfied that the Tribunal considered all of the relevant factors cumulatively. I therefore do not accept the applicant’s submission that the Tribunal failed to consider whether the relationship, in combination with other factors, amounted to a compelling reason. Those other factors are not specified at [44], but include the various factors discussed in the other paragraphs of the Tribunal’s reasons.
The applicant has not asserted any specific error in relation to the Tribunal’s discussion under the heading ‘Effect of lack of knowledge’, but does submit that the Tribunal failed to consider this cumulatively with any other factor. Again, for reasons addressed later in this judgment, I do not accept that the Tribunal failed to undertake an assessment of whether the various matters advanced by the applicant and sponsor as a whole amounted to compelling reasons.
At particular (e), the applicant identifies a number of factors which she says the Tribunal was required to consider cumulatively. I am satisfied that all of the factors have been considered by the Tribunal:
(a)The first factor raised by the applicant is the four year relationship. The Tribunal repeatedly referred to either the length of the relationship or the time that the relationship commenced at various places in its reasons, including in its background discussion (at [10]), in its summary of the applicant’s evidence (at [20]) and the sponsor’s evidence (at [24]), in its consideration of the effect of separation on the relationship (at [41]) and in its consideration of the long-term nature of the relationship (at [44]).
(b)The second factor raised by the applicant is the 18 months married relationship. The Tribunal identified that the applicant and sponsor were married on 26 May 2016 at [10], referred to the sponsor’s evidence that they married in 2016 (at [24]) and accepted at [44] that the applicant and sponsor had been married for approximately 18 months at the time of the Tribunal decision.
(c)The third factor identified by the applicant is the mature age of the couple. The age of the applicant and the sponsor was acknowledged by the Tribunal in its background discussion (at [7] and [9]) and in its summary of the sponsor’s evidence that doing shift work at 60 years of age is hard (at [27]). I acknowledge that the Tribunal did not expressly refer to the age of the applicant and the sponsor in its consideration of whether the various reasons advanced by the applicant amounted to compelling reasons. However, it is relevant that in her evidence to the Tribunal, the applicant did not refer to her age as something that amounted to a compelling reason, and the sponsor made only a passing reference to his age in discussing compelling reasons in the context of saying that he works hard and wants to stay with the applicant and work for another 10 years, where he said:
Yes, I do really want [the applicant] to stay in Australia because (indistinct) and I work so hard and I want to stay with her because I’m over 60 now, I think I’m going to work for another 10 years where I work…
It is not clear from this that the sponsor was actually saying that his age was a compelling reason, but if he was, it was in the context of his desire to remain in the relationship and the assistance that the applicant provides the sponsor in relation to his work. These issues are subsumed in the Tribunal’s discussion at [41] and [44] of its reasons.
(d)The fourth factor identified by the applicant is the charity work she does. The Tribunal summarised the applicant’s evidence in relation to this at [22] of its reasons where it said:
[The applicant] said that [the sponsor] was a preacher in the church that they attend. She said each Sunday they prepare a meal to share with all members of the congregation. She said that the sponsor undertakes a lot of pastoral care work for the church and she assists him in this role.
The applicant offered no explanation as to why this is a compelling reason and the context in which this was raised by the applicant was in explaining what she likes about the sponsor and residing in Australia. The Tribunal did not refer to the applicant’s charity work again specifically in its discussion of whether the various factors amount to compelling reasons. Given the way in which this factor was advanced by the applicant, it did not need to be considered separately and is subsumed in the Tribunal’s discussion of factors such as the applicant and sponsor’s desire for the applicant to remain in Australia, the hardship they may suffer if they are required to separate, and the acknowledgement that the relationship is genuine.
(e)The fifth factor identified by the applicant is the close relationship between the applicant and the sponsor’s children and former wife, giving stability to the children. The applicant’s evidence in relation to this factor was summarised at [21] of the Tribunal’s reasons, and the sponsor’s evidence in relation to the applicant’s relationship with his children was summarised at [26] of the Tribunal’s reasons. The Tribunal considered the positive influence that the applicant has on the sponsor’s family at [41] of its reasons in discussing the effect of a period of separation on the relationship. The applicant submitted that the Tribunal did not discount the possibility that stability for the sponsor’s children could be a compelling reason. This was not addressed by the Tribunal and did not need to be in circumstances where neither the applicant nor the sponsor made any submission that there was any need for the applicant to remain in Australia to ensure stability for the applicant’s children or that any desire for stability amounted to a compelling reason.
(f)The sixth matter identified by the applicant is the sponsor’s back pain. The Tribunal referred to the applicant’s evidence that neither she nor the sponsor had any health problems at [19] of its reasons. The Tribunal referred to the sponsor’s evidence that he has ongoing medical issues arising from a back operation he had in 2011 at [25] of its reasons. At the hearing, the Tribunal asked the sponsor why his back problems amounted to a compelling reason and the sponsor replied that it was because the applicant looks after him because she cooks and does his washing and it is easier to live with someone than by himself. These types of considerations are subsumed in the Tribunal’s consideration of the effects of a period of separation on the relationship.
(g)The seventh factor identified by the applicant is the sponsor’s shift work. To the extent that this factor was mentioned by the sponsor at the hearing, it was in the context of the domestic assistance that the applicant provides to him and the care she provides for his children. That evidence was summarised at [26] of its reasons and I am satisfied that these considerations informed the Tribunal’s consideration of the effect of a period of separation.
The final point to be addressed in relation to ground 1 is whether the Tribunal did in fact sufficiently consider whether the applicant’s circumstances cumulatively amounted to compelling reasons not to apply the Schedule 3 criteria.
In my view, this is a case like Zhang in which it was unnecessary for the Tribunal to engage in any ‘rolled up’ cumulative consideration of the applicant’s circumstances beyond what it said at [47]-[50] of its reasons (extracted above). It is particularly relevant that the applicant and sponsor did not advance any submission to the Tribunal that the various considerations that they raised compounded in any way when considered cumulatively.
The approach of the Tribunal was to summarise the evidence in detail, and then address thematically at a greater level of generality whether the individual circumstances raised amounted to compelling reasons. There is nothing in the Tribunal reasons which would suggest that its statement that it was not satisfied that the reasons advanced by the applicant and sponsor ‘separately and cumulatively’ amounts to compelling reasons not to apply the Schedule 3 criteria should not be accepted. Once the Tribunal thematically addressed each of the circumstances raised by the applicant and sponsor, it did not need to repeat the detail of its consideration of those circumstances in assessing the cumulative impact of them.
Ground 1 is not established.
GROUND 2
Ground 2 reads:
The Tribunal made an adverse factual finding which was material to its decision, without any evidentiary basis, and it thus made a jurisdictional error.
Particulars
(a)At CB255[42] the Tribunal found that, it does not consider that the subsequent difficulties that may arise for the parties during a separation were difficulties that were not reasonably foreseeable at the time of entering into the relationship.
(b)However, the Tribunal set out what the applicant’s evidence was to the Tribunal on this issue at [45] and that does not support this finding.
(c)The fact that the Tribunal held at [45] it was open to the applicant to obtain migration advice from an accredited migration agent at any time, does not change the fact the Tribunal made the above finding without any evidentiary basis.
Ground 2 focuses on the reasons of the Tribunal at [42] where it found:
Whilst the Tribunal appreciates a period of separation will present some difficulties for the parties the Tribunal does not consider that the subsequent difficulties that may arise for the parties during a separation were difficulties that were not reasonably foreseeable at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa.
The applicant submitted that the effect of this finding was that it was reasonably foreseeable to the applicant at the time she entered the relationship that she may have to go overseas to apply for the partner visa and thus may have to be separated from her partner for an extended period of time. The Minister submitted that the factual finding that was said to have been made without evidence is that the subsequent difficulties that may arise for the applicant and sponsor during a separation were reasonably foreseeable at the time of entering the relationship. The minor differences in the description of the finding are not material to the consideration of this ground.
There are two ways in which ground 2 might be interpreted and the submissions of the parties reflect the different ways in which the ground might be interpreted.
The first way to interpret the ground, focusing on the words ‘without any evidentiary basis’ is to treat the ground as a traditional no evidence ground. This is the way that the Minister has interpreted the ground and Counsel for the applicant colloquially described this ground as a no evidence ground in his oral submissions at the hearing.
The courts have traditionally held that ‘no evidence’ means ‘not a skerrick of evidence’, and this understanding been reaffirmed in recent decisions such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403; [2021] HCA 41 at [17] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [28].
I accept the Minister’s submission that there is evidence in this case to support the Tribunal’s finding that a potential period of separation was reasonably foreseeable at the time that the applicant and sponsor commenced the relationship in June 2013. At that time the applicant had not held a substantive visa since 30 November 2012, and although she had applied for a substantive visa, there was no guarantee that the application would be granted. It can be inferred from this that at the time the applicant and the sponsor commenced their relationship there was a possibility that the applicant would not be granted a substantive visa and may therefore need to leave Australia, at least temporarily. The applicant’s substantive visa application was in fact refused in July 2013 shortly after she and the sponsor commenced the relationship. I accept the Minister’s submission that, having regard to this evidence, it was reasonable for the Tribunal to infer that the applicant and the sponsor could have foreseen difficulties arising from separation upon commencing their relationship.
The Minister in his submissions also referred to the Tribunal’s finding about the foreseeability of separation as being part of a broader finding that also referred to relevant difficulties being foreseeable at the time that the applicant chose to apply for the partner visa in Australia. To the extent that this may give rise to a separate issue, I accept that there was evidence before the Tribunal to support the finding insofar as it was based on the foreseeability of a period of separation at the time of the application. In addition to the evidence referred to in the preceding paragraph, by the time of the application, the applicant was also aware that her application for a substantive visa had been refused, her review rights in respect of that decision had been exhausted, and a request for Ministerial intervention had been deemed inappropriate to consider.
For these reasons, understood as a traditional no evidence ground, ground 2 cannot succeed.
The second way in which ground 2 might be interpreted is as an assertion that the evidence that was before the Tribunal did not support the finding that the Tribunal made and in this sense the ground is more akin to an unreasonableness ground. Rather than focusing on any alleged non-existence of evidence that might support the Tribunal’s finding, the applicant has instead focused on evidence that was before the Tribunal and which might have supported a different finding to the one made by the Tribunal. To this end, applicant focused on the Tribunal’s reasons at [45] and the summary of her evidence set out in that paragraph, which reads:
The applicant told the Tribunal that she and the sponsor did not know how to go about lodging a partner application and so they had not lodged an application earlier. She said they had set up a joint bank account in 2014 but beyond that they did not know what to do. They were not aware that once the applicant substantive visa had lapsed there were additional criteria that they would have to satisfy if they were to be able to lodge their application onshore. Whilst appreciating that the immigration process is intimidating and inadequate knowledge can lengthen what can be a very difficult process the accessing of advice is essentially a matter for the applicant. It was open to the applicant to obtain advice from an accredited migration agent at any time.
The applicant submitted that this shows that she and the sponsor were not aware that once the applicant’s substantive visa had lapsed there were additional criteria that they would have to satisfy to be able to lodge their application onshore. The applicant submitted that this supports the proposition that she only knew about the Schedule 3 criteria when she went to a migration agent to apply for her partner visa sometime before 29 November 2016, whereas the applicant and first sponsor met in January 2013 and committed themselves to a shared life in June 2013, at least three years before applying for the partner visa. In oral submissions, Counsel for the applicant submitted that the applicant should not be expected to have the foresight and knowledge that her substantive visa application would be refused and that her request for Ministerial intervention would be unsuccessful.
In addressing the grounds in this way, the applicant relied on the summary of legal principles which guide the judicial review of findings concerning credibility summarised in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83]. Counsel for the applicant submitted that the main point to take from this is that it is a case specific inquiry, not one that is analysed using a fixed formula.
I do not accept that the evidence summarised at [45] of the Tribunal’s reasons leads to the conclusion that the Tribunal’s finding at [42] was made without an evidentiary basis or was a finding which was not reasonably open on the evidence before it. The applicant’s submissions adopt too narrow a focus on the finding at [42]. The reasoning process of the Tribunal at [42] is not based on whether or not the applicant knew of the existence of the Schedule 3 criteria. Nor does the finding proceed on any assumption that the applicant must have known that her substantive visa application would be refused. Rather, properly construed, the Tribunal’s finding is based on the fact that the applicant did not hold a substantive visa, might not be granted a substantive visa and therefore might need to leave Australia at some point in the future. On this understanding, it was open to the Tribunal to find on the evidence before it that it was reasonably foreseeable that the applicant and the sponsor may be separated for a period if the applicant is required to leave Australia because she has not been granted a substantive visa.
Ground 2 is not established.
GROUND 3
Ground 3 reads:
The Tribunal made jurisdictional error in that it misunderstood and misapplied what is meant by the term “compelling circumstances”
Particulars
(a)At CB255[44] the Tribunal accepted that (i) The parties (sponsor and the applicant) commenced living together in 2016 and at the time of the application they had been in a relationship for approximately four years (ii) At the time of the decision they have been in a married relationship for 18 months.
(b)At [44] the Tribunal further stated:
As a genuine spousal relationship is the basic requirement for a partner visa application, and there is no evidence before the Tribunal from the parties that the genuineness, mutual commitment, continuing nature and longevity of their relationship is somehow, in and of itself, a circumstance that should compel the Tribunal to not apply the Schedule 3 criteria. In the particular circumstances of this case the Tribunal is not satisfied that the relationship of itself is a compelling reason not to apply the schedule 3 criteria.
(c)The Tribunal erred by not considering whether the longevity of their relationship (being more than two years) went beyond the basic requirement of a genuine spousal relationship as the Explanatory Memorandum might suggest so that it might be capable of satisfying by itself or with other factors the requirement of compelling circumstances.
(d)In the relevant Explanatory Memorandum the Parliament has indicated two examples of situations which may justify the waiver of the Schedule 3 criteria. That is not a criteria that the Tribunal was bound to apply, however the Tribunal was bound to consider those two examples as they were the only indication of the thinking of the Parliament of clear examples and if one of them is satisfied specifically consider if the satisfying example by itself or with other factors present in their case would satisfy the “compelling reasons” criteria.
The issue raised by ground 3 is whether the Tribunal misunderstood the term ‘compelling reasons’ by failing to recognise that the longevity of the relationship might amount to a compelling reason. More specifically, the applicant asserts that the Tribunal was bound to consider two examples set out in an Explanatory Statement as to the types of reasons that might amount to compelling reasons for waiving the Schedule 3 criteria.
The relevant Explanatory Statement, Explanatory Statement to Migration Regulations (Amendment) 1996 No. 75 (SR 1996 No 75), said in relation to the current iteration of cl 820.211(2)(d) in Schedule 2 to the Regulations:
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.
It is the second of the examples, namely where the applicant and sponsor are in a long-standing relationship of a duration of two years or more, that the applicant submitted should have been taken into account by the Tribunal in the present matter. The applicant overstated the position in her written submissions where she described the relevant consideration in the following terms:
That relevant consideration is the fact that through the relevant Explanatory Statement the Parliament has expressed the view that a relationship of more than two year is a “strongly compassionate” reason and it is expected that the waiver will be exercised, meaning it will satisfy ‘compelling reasons’.
The Explanatory Statement simply refers to an example of a long-standing relationship which has been in existence for two years or more as a circumstance which may amount to a compelling reason, but does not suggest that a relationship of two or more years’ duration will amount to a compelling reason in every case.
Counsel for the applicant also relied on the judgment in Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 (Chhetri) in support of his submission that the examples in the Explanatory Statement are important, and I acknowledge that at [37] of Chhetri, the Court said:
Viewed objectively, the matters put forward as constituting compelling reasons for waiving the public interest criteria are powerful. That is particularly so when two of the primary matters relied on by the appellant as constituting “compelling reasons” reflect the very two examples of reasons of a “strongly compassionate” nature described in the Explanatory Statement which accompanied the amendments in 1996 which included the new cl 820.211(2)(d)…
The Tribunal addressed the length of the relationship at [44] of its reasons, where it said:
At the time of application, the married relationship between the applicant and his sponsor was approximately six months but they had been in a relationship for nearly four years. The Tribunal accepts the evidence of the parties they commenced living together in 2016 when the applicant lost her work rights so that at the time of the application they had been in a relationship for approximately four years. At the time of this decision the parties married relationship is approximately eighteen months. As a genuine spousal relationship is the basic requirement for a partner visa application, and there is no evidence before the Tribunal from the parties that the genuineness, mutual commitment, continuing nature and longevity of their relationship is somehow, in and of itself, a circumstance that should compel the Tribunal to not apply the Schedule 3 criteria. In the particular circumstances of this case the Tribunal is not satisfied that the relationship of itself is a compelling reason not to apply the Schedule 3 criteria.
It is clear from this paragraph that the Tribunal did consider whether the length of the relationship between the applicant and the sponsor amounted to a compelling reason to waive the Schedule 3 criteria. I therefore do not accept the applicant’s submission that the Tribunal erred by not considering whether the longevity of the relationship went beyond the basic requirement of a genuine spousal relationship so that it might have been capable of satisfying by itself or with other factors a requirement of compelling reasons. Rather, I accept the Minister’s submission that, properly construed, this paragraph shows that the Tribunal understood that a long-term relationship could amount to a compelling reason, but found that in the specific circumstances of this case, the length of the relationship did not amount to a compelling reason to waive the Schedule 3 criteria.
The applicant submitted in writing that the examples in the Explanatory Statement are relevant considerations to be taken into account. At the hearing Counsel for the applicant clarified that it is the fact that the Explanatory Statement includes an example of a long-term relationship of two or more years that was the relevant consideration that the Tribunal was required to, but did not take into account.
In advancing this submission the applicant relied on Mason J’s judgment in Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 at 39-40, where his Honour said:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors… are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
The phrase ‘compelling reasons’ is not defined in the Regulations and confers a broad discretion on the decision-maker to decide what might amount to a compelling reason. There is nothing in the subject-matter, scope or purpose of the Regulations which would require the Tribunal to have regard to the specific matters referred to in the Explanatory Statement, or the fact that those matters are referred to as examples in the Explanatory Statement, as a mandatory relevant consideration. This is consistent with the observation of Derrington J in Singh v Minister for Home Affairs [2020] FCAFC 7 at [61], as acknowledged by the applicant in her written submissions.
Further, I do not accept the applicant’s submission that the fact that compelling circumstances is not defined requires that recourse must be had to the Explanatory Statement. A submission to this effect was considered and rejected by Judge Nicholls in Singh v Minister for Immigration [2019] FCCA 335. His Honour said at [72]-[84]:
72.First, the extract of the Explanatory Memorandum, as set out in the Tribunal’s decision record at [44], provides one of a number of examples of “compelling reasons”. It does not have the force of the statute, or the regulations. It is not a prescription that must be followed by the Tribunal.
73.Second, in any event, it recognises by the use of the word “may” that ultimately, this is a matter for the proper exercise of the Tribunal’s discretion. Ultimately what is set out in the extract from the Explanatory Memorandum is simply an illustrative example.
74.Third, as the Tribunal correctly recognised, it was bound to follow what was relevantly said in [SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69] ….
75.Fourth, in light of the Full Court’s decision, there is no legal error in the Tribunal focusing on the Act and Regulations…:
“46.The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered. As it is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.”
76.Simply because “compelling reasons” is not defined in the Act or the Regulations does not mean, automatically, that what is relevantly set out there as to the relevant task for the Tribunal requires the Explanatory Memorandum to give it meaning.
77.Fifth, as the Tribunal correctly stated, it is to the statutory and regulatory criteria that regard must be had for what may form the basis for a finding of compelling reasons, not “examples” in the Explanatory Memorandum.
78.Sixth, it is the circumstances of each particular case which may give rise to compelling reasons. As set out at cl 820.211(2)(d)(ii) (relevant to the visa class for which the applicant applied), to be granted the visa (in this case the spouse visa), the applicant must satisfy the Schedule 3 criteria. The applicant’s submissions before the Court did not engage with this important regulatory requirement.
79.The Regulation does provide discretion to the Tribunal to waive this requirement if compelling circumstances exist, such as to justify the waiver. I do not, respectfully, understand what was said by Lindgren, J in [An v Minister for Immigration and Citizenship (2007) 160 FCR 480; [2007] FCAFC 97]to say that the exercise of such a discretion enables the Court to determine for itself whether compelling circumstances exist. That remains the task for the Tribunal.
80.Of course, as with the exercise of any statutory discretion, an administrative decision maker must exercise such discretion reasonably, and the consideration and conclusion must be probative of the material before the decision maker. Further, the analysis must exhibit some intelligible explanation as to why the discretion was exercised, or not exercised, as the case may be.
81.Seventh, in essence, the applicant’s argument before the Court was really an invitation to the Court to substitute its own finding for that of the Tribunal, and to find that a compelling reason did exist because the relationship was of two years duration or longer. That is, an invitation to impermissible merits review.
82.Eighth, as I sought to explore with the applicant’s counsel at the hearing, I cannot see that the relevant regulatory requirements provide that the waiver is justified simply because the relationship was of two years duration or longer.
83.As the Explanatory Memorandum, on which the applicant otherwise relied, makes clear, the regulatory emphasis is on the hardship that could result if the Schedule 3 criteria were not waived, not some formulaic application of the length of the relationship.
84.Ninth, as the Tribunal properly understood, the duration of the relationship was but one factor of the relationship to which regard must be had. The justification of any waiver focused on any hardship that may ensue required consideration of, as the Tribunal correctly said, “...all the factors of the relationship...” ….
Those observations of Judge Nicholls are also applicable to the present case.
Ground 3 is not established.
CONCLUSION
In circumstances where I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 March 2023
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