Nguyen v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 520
•14 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 520
File number(s): SYG 878 of 2021 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 14 April 2025 Catchwords: MIGRATION – Judicial review – Partner visa – whether Tribunal properly reached a state of satisfaction that compelling reasons did not exist to waive the application of certain Schedule 3 criteria – whether Tribunal failed to give proper, genuine and realistic consideration to submissions and evidence – whether Tribunal failed to actively and intellectually engage with arguments– jurisdictional error established – application allowed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 3 cl 3001
Cases cited: AXT19 v Minister for Home Affairs [2020] FCAFC 32
Babicci v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 141 FCR 285
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CDD23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 276
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Singh v Minister for Home Affairs (2019) 267 FCR 200
Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 20 February 2025 Place: Sydney Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Phillip Silver & Associates Lawyers Counsel for the Respondents: Mr M Cleary Solicitor for the Respondents: Clayton Utz Lawyers ORDERS
SYG 878 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOANG QUYNH NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
14 APRIL 202514 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the second respondent is amended to ‘Administrative Review Tribunal’.
2.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 21 April 2021 into this Court for the purposes of quashing it.
3.A writ of mandamus shall issue, requiring the Administrative Review Tribunal to re‑determine, according to law, the application for review before it.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 21 April 2021. By this decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 820 Partner (Temporary) (Class UK) visa (Subclass 820 visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
This case requires the Court to consider whether the Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate by failing to actively and intellectually engage with, or by failing to give proper and realistic consideration to, the material before it.
BACKGROUND
The applicant, a male national of Vietnam, first arrived in Australia on 26 October 2014, as the holder of a Visitor (Subclass 600) visa. On 26 January 2015, his visitor visa ceased.[1]
[1] Court Book (CB) 407.
On 20 December 2017, the applicant applied for a Subclass 820 visa on the basis of being in a spousal relationship with an Australian permanent resident.[2] The applicant’s wife is the mother of five children. Her eldest child is a son who was diagnosed with a mental health condition in 2012, while her youngest child is a daughter.
[2] CB 1 to 32.
At the time when the Subclass 820 visa application was made on 20 December 2017, the applicant was not the holder of a substantive visa. He had not held a substantive visa since his visitor visa ceased on 26 January 2015.
On 8 July 2019, a delegate refused to grant the applicant the Subclass 820 visa because:
(a)the applicant did not satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations) as the Subclass 820 visa application had not been made within 28 days of the date he last held a substantive visa; and
(b)the delegate was not satisfied that there were ‘compelling reasons’ for not applying certain criteria within Schedule 3 including criterion 3001.[3]
[3] CB 403 to 412.
On 25 July 2019, the applicant sought review of the delegate’s decision by the Tribunal.[4]
[4] CB 413 to 414.
On 6 April 2021, the Tribunal convened a hearing, by way of telephone, at which the applicant and his wife appeared to give evidence and present arguments.[5]
[5] CB 835 to 837.
On 21 April 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a Subclass 820 visa.
PROCEEDINGS IN THIS COURT
By way of an amended application, filed on 17 September 2021, the applicant relied on two grounds of review. As confirmed by the applicant’s written submissions, filed on 6 February 2025, only ground 1 is pressed. Following the hearing, the applicant was granted leave to further amend the application, so as to include a further particular, particular (h). The applicant filed the further amended application on 21 February 2025. The Minister was afforded the opportunity to respond by way of supplementary written submissions in relation to particular (h). The Minister did not avail himself of that opportunity.
Accordingly, the sole ground of review is as follows (reproduced without alteration):
1.The Second Respondent (Tribunal) made a jurisdictional error of want of proper, genuine and realistic consideration.
a. The Tribunal was required to give proper consideration to the Applicant’s case, in the sense of active intellectual engagement with the same. The Applicant’s case for this purpose extended to matters arising from the Tribunal’s own findings of fact: GBV18 v Minister for Home Affairs (2020) FCAFC 17 at (301, (321 and (39) per Flick, Griffiths and Moshinsky JJ; AYY17 v Minister for Immigration (2018) FCAFC 89; 261 FCR 503 at (181, (26) per Collier. McKerracher and Banks-Smith JJ;
b. The Tribunal at paragraph 24 of its decision accepted “the submissions that indicate that the applicant provides emotional and practical support. However, the Tribunal finds that this is not unusual in a genuine relationship and that parties would support each other in their day to day lives and it is not unreasonable to expect that the applicant would provide support to the sponsor and the two children who live at home, notwithstanding that the sponsor’s son is 30 years of age”;
c. The Tribunal thereby failed to engage with the particular circumstances of the relationship of the applicant and the sponsor. including the needs of her schizophrenic son;
d. The Tribunal at paragraph 24 of its decision stated that it had “regard to the management of the sponsor’s son’s mental health issues” and that it was “satisfied that the sponsor’s son has access to the appropriate health professionals as required and that this has been ongoing since before the parties first met”.
e. The Tribunal thereby failed to engage with the nature and limits of the professional help provided to the sponsor’s son, the extent to which the presence was meant of the applicant aided management of the schizophrenia of the sponsor’s son and whether the difference provided by the presence of the applicant was compelling;
f. The Tribunal at paragraph 24 of its decision noted that “the applicant indicated to the Tribunal that he had concerns for the sponsor’s safety because of the size of the sponsor’s son”. However. the Tribunal stated that it was “not satisfied that this evidence suggests that the sponsor is in imminent danger if the applicant was not present whilst awaiting the processing of this partner visa application”;
g. The Tribunal thereby failed to engage with the history of violence of the sponsor’s son and the scope for the presence of the applicant to provide help to the sponsor in resisting or controlling that violence. which could reduce the risk to the sponsor, imminent or otherwise. presented by such violence.
h. The Tribunal failed to engage with the evidence and submissions of the applicant with regard to the applicant’s stepdaughter, [omitted]; namely, that she had been born out of a casual relationship and had no relationship with her biological father, but treated the applicant as her own father and needed him.
The material before the Court includes a Court Book of 848 pages in length (marked as Exhibit 1R), an Affidavit of Ayumi Shimada affirmed on 31 August 2021 annexed to which is a transcript of the Tribunal hearing which took place on 6 April 2021 (Tribunal hearing transcript), and the written submissions of the parties filed in February of 2025.
RELEVANT LEGAL PRINCIPLES
The question of whether a decision maker has meaningfully considered the merits of a particular case such that their consideration was ‘proper, genuine and realistic’ and that they engaged in ‘an active intellectual process’ when making their decision was recently examined by this Court in CDD23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 276. The following summary of the relevant legal principles in relation to the determination of that question is largely derived from his Honour Judge Gerrard’s helpful and thorough survey of the relevant case law.
It has long been established that the consideration of a representation or submission requires an ‘active intellectual process’: see Tickner v Chapman (1995) 57 FCR 451 (Tickner) at [39]. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ at [36]-[46], the Full Court confirmed the principle that a failure to actively engage with the material before it, giving it proper genuine and realistic consideration, constitutes jurisdictional error. At [47], their Honours articulated that in determining whether a decision-maker has engaged in an active intellectual process, the Court must:
…conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
However, their Honours noted that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence: see Carrascalao at [48]. The Court must be watchful that it does not slide into impermissible merits review: see Carrascalao at [32].
In Tickner, Kiefel J (as her Honour then was) at [40] said the following about what is required by consideration:
It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) at [24]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court said (footnotes omitted):
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26. Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
27. None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
In Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh), Reeves, O’Callaghan and Thawley JJ at [34] held that a Tribunal, whose task is to review, may commit jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration to:
· a ‘substantial, clearly articulated argument relying upon established facts’: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
· a claim ‘raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review’: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
· a matter ‘that is an essential integer to an applicant’s claim or that would be dispositive of the review’: see ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
Their Honours at [37] provided further guidance in relation to the adjudication of whether a decision maker has failed to engage in an active intellectual process:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) 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; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
APPLICANT’S CONTENTION
The applicant contends the Tribunal failed to engage in an active intellectual process in dealing with claims and evidence, and thereby constructively failed to exercise its jurisdiction. In support of that contention, the applicant submits the Tribunal failed to give any ‘meaningful’ consideration to the particulars of the evidence and submissions including:
(a)the medical, psychological and other documentary evidence that the applicant’s stepson suffered from chronic schizophrenia which, when uncontrolled, gave rise to an incident in which he threatened to harm himself, the sponsor and the applicant with a knife, and that he had also been regarded by health authorities (including the Mental Health Tribunal) as being a risk of causing ‘emotional and psychological harm’ to the sponsor and the applicant because of his violence and aggression.
(b)the psychological and other documentary evidence that the applicant was his stepson’s ‘primary carer’ who gave physical and emotional support integral to maintaining his stepson’s mental health on an ongoing basis.
(c)the applicant’s evidence in relation to the ‘special relationship’ he had with his stepson, particularly his ability to persuade his stepson to comply with his treatment requirements.
(d)the medical, psychological and other evidence, as well as written and oral submissions, referring to the severity of the sponsor’s depression and anxiety, her difficulty in coping without the applicant, and the day-to-day comfort the applicant was able to provide to her.
(e)the psychological and other evidence, as well as written and oral submissions, referring to the paternal role assumed by the applicant in relation to his stepdaughter.
By way of oral submissions, the applicant’s Counsel took the Court through a detailed survey of various aspects of the evidence and submissions provided to the Minister’s Department and the Tribunal that, in the applicant’s view, were critical to any proper, genuine and realistic consideration of the applicant’s argument that ‘compelling reasons’ not to apply certain Schedule 3 criteria existed in this case.
In so doing, my attention was drawn to specific parts of documentary and oral evidence which the applicant maintains was relevant for the Tribunal’s consideration of his family circumstances, particularly the nature of his involvement with and support of the sponsor and her two children, when determining whether there were ‘compelling reasons’ not to apply the Schedule 3 criteria. A summary of the applicant’s submissions in relation to relevant aspects of that evidentiary material follows.
Documentary evidence
In terms of the documentary evidence, my attention was drawn to the following documents before the Tribunal:
(a)Letter from Mr Nguyen, Psychologist, dated 10 November 2017: Mr Minh Nguyen of M.T.N Psychological Services wrote a letter in relation to the mental health of the applicant’s stepson. By this letter, provided to the Minister’s Department on 20 December 2017 in support of the Subclass 820 visa application, Mr Nguyen states:[6]
[6] CB 102 to 103.
[The applicant’s stepson] is a client of MTN psychological service since 12/12/2014. He also has been treated by Psychiatrist Dr and has still been consulted with him.
…
[The applicant’s stepson] has delusional ideas about usual thing around him. For instance, when the neighbour dog barking he thought that the dog “trying to inform other neighbour dogs to be against him” His psychotic and depressive symptoms still exacerbated even he takes his medication daily. [The applicant’s stepson] stated that [the applicant] was very supportive to his otherwise his condition might be worse. [The applicant’s] care and comfort is essential for him to function as it is. [The applicant] took part of care for him with [the sponsor] for a year now.
[The applicant’s stepson] even often prefers to be care by [the applicant] than [the sponsor] as he got along well with [the applicant]. [The applicant’s stepson] is always tortured by the thought if [the applicant] is leaving him to go back to Vietnam.
…
Impression
[The applicant’s stepson] presents with significant symptoms Depression symptoms (DSM IV). He also has psychotic symptoms mainly paranoid and delusional symptoms.
(b)Letter from Dr McPherson, Psychiatrist, dated 30 November 2017: Dr McPherson, a Consultant Psychiatrist, wrote a letter in relation to the applicant’s stepson’s mental health. By this letter, provided to the Minister’s Department on 20 December 2017 in support of the applicant’s Subclass 820 visa application, Dr McPherson states:[7]
[7] CB 107.
[The applicant’s stepson] suffers with chronic schizophrenia for the last 5 years. His condition has fluctuated and has not been completely controlled. He has been quite disabled by his condition. He lives with [the sponsor] who has provided a lot of necessary support and supervision.
As [the sponsor] has been single coping has been difficult for her. She now has a new husband who is supportive and who will be able to help her providing for the needs of the family and supervising [the applicant’s stepson]. [The applicant’s] presence will strengthen the whole family and help to improve [the applicant’s stepson’s] situation.
(c)Further letter from Dr McPherson, Psychiatrist, dated 13 March 2018: Dr McPherson wrote a further letter in relation to the applicant’s stepson’s mental health and the nature and significance of the support derived from the applicant. This letter was provided to the Tribunal on 30 March 2021. Dr McPherson relevantly states:[8]
[8] CB 443 to 445.
[The applicant’s stepson] continues to suffer with chronic schizophrenia that has been difficult to treat recently although he has improved over the last few months since returning to treatment with the anti-psychotic medication….
[The applicant’s stepson] continues to be severely disabled by his illness with delusional ideas, hallucinations at times and impaired motivation and social functioning. He has no activities outside the family home and interactions with close relatives. He needs to begin a rehabilitation process to develop some vocational direction. Recently he has been going daily to the gym with [the applicant] and this is very helpful as initiating him into a more active and engaged life. {The applicant] has been able to assist with general supervision of [his stepson] and supporting the family in general. [The sponsor] also has a nine-year-old daughter who needs to be looked after. I believe that [the applicant’s] presence in the family in Australia is generally of great assistance to [his stepson] and is helping with his recovery.
(d)Applicant’s statutory declaration made on 5 July 2019: This statutory declaration was provided to the Minister’s Department in response to an invitation to provide further information in support of the Subclass 820 visa application. Relevantly, the applicant made the following declarations:[9]
[9] CB 391.
Why I am not able to lodge the visa from outside Australia
8.In June 2013, [my stepson] was diagnosed with chronic schizophrenia. Since the beginning of our relationship, I have been a big part of [my stepson’s] life. He is like my own son. He suffers from severe psychotic episodes regularly. During these episodes [my stepson] only listens to me and I am the only person in the house who can control him. He is very big, and [the sponsor] does not have control over him physically.
9.[My stepson] requires regular treatment from his doctors and specialists. Sometimes when he is stubborn, he only listens to me to take him to his medical appointments. He currently receives treatment from Dr Andrew McPherson, Psychologist Minh Tuan Nguyen and Dr Nguyen Van Vinh.
10.… I then give [my stepson] his medication as he does not take the medicine if [the sponsor] or anyone else gives it to him. On hard days, it takes a lot of time and effort to convince him to take his medicine, this is mainly due to his delusions that he has about the medicine. Normally I would also take him outside or to the gym to exercise. …
11.[My stepson] sometimes suffers from very bad episodes for instance recently he has started running to the road in front of cars and I need to be there to pull him off the road. [The sponsor] is not able to do this as [my stepson] is physically big and [the sponsor] can’t control him. I am not working because [my stepson] requires someone around the clock to look after him.
12.… [the sponsor] would find it difficult to take care of him and her daughter [omitted] at the same time. She needs my support in attending [my stepson’s] care. She will not be able to take care of the household by herself. [My stepson] also does not listen to [the sponsor] and [the sponsor] will not be able to take him to his specialist appointments and give his medicine.
(e)Letter from the applicant’s stepdaughter dated 18 March 2021: The applicant’s stepdaughter wrote a letter that was provided to the Tribunal on 30 March 2021 and contains the following statements:[10]
[10] CB 468.
…. My dad… my mum… and my brother… all live together. I don’t want anyone to separate. My dad helps my mum to look after my brother and me. I don’t want [him] to leave. I want him to stay as a family with all of us. My dad takes me out on weekend. I want my family to be happy and have fun.
(f)Report to the Mental Health Tribunal by Dr Roper, Psychiatrist, dated 4 June 2020: [11] This report was written to ‘assist the Mental Health Tribunal in making a decision regarding the Involuntary Patient Order application for 12 weeks of the treating Psychiatry Team’ at the Professor Marie Bashir Centre in the Royal Prince Alfred Hospital. In relation to the applicant’s stepson’s admission to the Professor Marie Bashir Centre, voluminous clinical reports were provided to the Tribunal.[12] In her report, Dr Roper refers to an incident in early May 2020 when the applicant’s stepson threatened to kill the applicant and sponsor with a knife. Following that incident, the applicant’s stepson was sectioned from 8 May 2020 until 12 June 2020 pursuant to s 32(3) of the Mental Health Act 2007 (NSW).[13] Dr Roper also notes that the applicant’s stepson had been untreated for at least six to eight weeks prior to this incident and that he is unwilling to follow a voluntary treatment plan ‘unless persistently coerced at present by the mental health act and close supervision in hospital’. Dr Roper described the impact on her patient’s recovery if there is failure to comply with the treatment plan in the following terms:
[11] CB 462 to 463.
[12] CB 484 to 834.
[13] CB 604.
ongoing untreated psychosis, misadventure when interacting with members of the public as he tries to convert them to Falun Gong, and possible violence toward his parents, who he threatened to kill recently for questioning him about his medications.
(g)Report from Mr Rodriguez, Psychologist, dated 29 March 2021: On 29 March 2021, Mr Rodriguez, a psychologist, authored a report in relation to the applicant and the sponsor. This report was provided to the Tribunal on 30 March 2021 and relevantly states:[14]
[14] CB 469 to 475.
[The sponsor’s] psychological profile
…
I assessed [the sponsor’s] current emotional profile… She obtained the following results:
Depression: … (Extreme)
Anxiety: … (Extreme)
Stress: … (Extreme)
Based on my assessment of [the sponsor] I concluded that she has been subject to symptoms of depression and anxiety that have fluctuated depending on circumstances throughout her adult life. After commencing living with [the applicant], he has been assisting her running the house and caring for [the applicant’s stepson] and [the applicant’s stepdaughter], which [the sponsor] finds very beneficial and supportive, causing her symptoms to be more bearable. I understand that [the applicant] has become very close to the children. [The applicant’s stepdaughter] calls him ‘dad’ and [the applicant’s stepson] has formed strong attachment with him. [The sponsor] said that she is particularly grateful that [the applicant] has assisted greatly in the management of [the applicant’s stepson’s] chronic schizophrenia condition. [The applicant’s stepson] can become unduly violent when his symptoms flare up, and [the sponsor] said that [the applicant] has offered both physical and emotional support to keep [the applicant’s stepson] under control.
…
During the course of the marriage, [the applicant] has taken responsibility for assisting [the sponsor] with the running of the home and caring for the children. I understand that [the applicant] has become the primary carer for [the applicant’s stepson], assisting him with medication, visits to doctors and normal daily activities. [The applicant’s] caring of [the applicant’s stepson] became particularly important after [the applicant’s stepson’s] father passed away in October 2020, rendering [the applicant] as the sole father figure in his life.
I believe that [the sponsor] and both children have become dependent on [the applicant] for physical, emotional, moral and financial support. This has been a main reason compelling [the applicant] to remain in Australia to lodge his visa application from here.
…
I believe a that a major problem, if [the applicant] were to be forced to relocate temporarily to Vietnam, would be removing the main source of support for [the applicant’s stepson]. There is a history that [the applicant’s stepson] has become violent and dangerous in the past, and that [the applicant] has assisted to avoid these incidents.
(h)Applicant’s statutory declaration made on 30 March 2021: This statutory declaration was provided to the Tribunal on 30 March 2021. Relevantly, the applicant made the following declarations:[15]
[15] CB 477 to 479.
Compelling reasons why I should not be required to leave Australia.
5. [The sponsor], [my stepson] [my stepdaughter] and I are a close family unit…
6. [My stepdaughter] has never known her father and calls me Dad. I am the only father figure for both these children. Thay are like my own children and I am a big part of their lives.
…
9. I am the only person in the house who can control [my stepson]. He is big and weighs around 80kg. [The sponsor] cannot control him physically. I accompany [my stepson] to medical appointments, take him for social outings and support him emotionally. I make sure [he] takes his medication. [He] must take medication 3 times a day and get an injection once a month.
(i)Sponsor’s statutory declaration made on 30 March (year not specified): This statutory declaration was provided to the Tribunal on 30 March 2021. Relevantly, the sponsor made the following declarations:[16]
7. [My son] tried to kill himself on the 8th May 2020 with a knife. Both [the applicant] and I were at home when this incident happened. When we stopped [my son], he wanted to kill us and we called the mental health hospital. [My son] continually tells us he wants to kill himself. He currently seems stable and [the applicant] makes sure he takes his mediation and attends the clinic whenever required. [The applicant] is the best person to calm [my son] down whenever he gets anxiety.
…
12. [The applicant] is younger than me. He is 41 and more able to exert control over [my son] (including physically). I am now 49. I also have my own medical condition where I require acupuncture every week. I also have weak bones. [The applicant] is the primary carer with us both caring for [my son] together.
13. [My son] is a lot bigger than me. He is stronger than me. If [the applicant] is not at home with my and [my daughter], I cannot control [my son] physically. I fear for my safety if [the applicant] is not here. I fear for [my-son’s] welfare if [the applicant] is not here.
14. We have a good living arrangement now, where we are all safe, healthy and happy together…
15. [My daughter] was born out of a casual relationship. She has no relationship at all with her father who has never been present in her life. [My daughter] is close to [the applicant] and calls him Dad.
[16] CB 480 to 482.
Oral evidence
In terms of the oral evidence, my attention was drawn to various excerpts of the Tribunal hearing transcript:
(a)Applicant’s oral evidence at the Tribunal hearing: During the Tribunal hearing, the applicant was asked why he ‘needed to stay in Australia’, which prompted the following exchange:[17]
[17] Tribunal hearing transcript 9.
MEMBER: Why does he need to stay in Australia rather than go offshore to await the partner visa application process?
INTERPRETER: Yeah, because her son, he has a mental problem. He was very sick and he needed me to stay with him. Since the day I moved to live with them, the son, the situation getting better. He needs me to be with him. With my wife alone, she cannot, she will not be able to look after him. And besides that, she had another daughter to look after. So that's the reason why.
INTERPRETER: The son, her son and her daughter, they don't have their father. No father for them. So, they treated me like their own father. So, they really love me, and I love them too. So, they need me to stay with them.
The applicant was also asked how the sponsor had dealt with her-son’s condition prior to the applicant living with the sponsor and her two children as well as how the applicant cared for his stepson:[18]
[18] Tribunal hearing transcript 10.
MEMBER: So, how did his wife deal with it without his assistance during that time?
INTERPRETER: According to my wife, she said that when he first started to have the mental issue, it was very mild. It's a not serious like what happened two years later. He only gets worse in 2016, ....
MEMBER: And what was... Why did he get worsen in 2016?
INTERPRETER: The condition getting worse day by day at that time.
MEMBER: And why is that? Why does he think that is?
INTERPRETER: I cannot explain the reason why but when I first met him, he scared of the car, of moving car. He is scared of the living life from the car. He's scared of the dog because he thought the dog want to bite him. But he gets better and it's over. he's now worried about it only I cannot really explain why.
INTERPRETER: He'd been taking medication, so his condition now, his mental issue now, gets the like... with a prognosis getting better.
MEMBER: So, can you just confirm what do you specifically do for him?
INTERPRETER: I'm sorry. Member?
MEMBER: Can you just confirm what specifically you do for your stepson?
INTERPRETER: I'm sorry. I cannot hear you well.
MEMBER: Can you confirm what you specifically do for you stepson?
INTERPRETER: Yeah, what I do that I have to remind him every day, the time to take medication. And I have to sit with him, talk to him. Discuss with him like... and also, he needs to go to do the exercise, walking, swimming. I go with him and I take him to his doctor's appointment. He has every month the appointment with his doctor, his mental doctor.
(b)Sponsor’s evidence at the Tribunal hearing: The Tribunal Member had a lengthy exchange with the sponsor about her family circumstances, including her relationship with her various children, as well as the absence of any relationship with the biological fathers of her children.[19] The following exchange details the sponsor’s particular evidence about the difficulties she faced when caring for her eldest son and youngest daughter before marrying the applicant:[20]
[19] Tribunal hearing transcript 13 to 15.
[20] Tribunal hearing transcript 13.
MEMBER: So, you've been a full-time carer for both your daughter and your son?
INTERPRETER: Yes, that's correct.
MEMBER: So, how did you care for your son before you and Mr. Nguyen became married? How did you manage that?
INTERPRETER: It was very, very hard to look after the sick son and the little daughter when before I met him. I had to do it. I commend it but we're very, very hard. But, when my son when he first had the mental issue, it was to my... So, it was, it not so serious like right now. Like years later...
(c)The representative’s oral submissions at the Tribunal hearing: The applicant’s representative indicated to the Tribunal that the circumstances of the family had changed significantly since the delegate refused to grant the Subclass 820 visa in 2019. The following oral submissions detailing a variety of ‘compelling reasons’ were made in support of the Schedule 3 waiver request:
MR SILVER: Member, I haven't made written submissions in relation to this AAT hearing. What we did is we sent through the evidence last week, which is includes the stat decs of the applicants and the sponsor and a lot of clinical and hospital records. So, your circumstances have changed significantly since the refusal decision in 2019. So, when you talk about my submissions, I'm not sure if those are the submissions of the previous agent in relation to the decision refusal, but I haven't made submissions at this stage.[21]
…
MR SILVER:…Another compelling factor, I think that is in the stat dec, member, it hasn't come out yet in the evidence today, but it isn't the evidence that was submitted, is that [the applicant’s stepson’s] father passed away. It was last year. I think it was on the eighth of October 2020. Member, there is a death certificate that's being presented. So, this has resulted in the situation that [the applicant] is the only father and only father figure for [his stepson] now. It now creates the scenario that is [the applicant] is forced to leave Australia. You have the only father figure that he has taken away from him. So, I would submit that that's another significant factor to take into account. The other factor is that [the applicant’s stepdaughter] does not know her father, neither does the sponsor know the father. I've submitted the birth certificate as part of the evidence there is no father on the birth certificate. So again, although [the applicant’s stepdaughter] is a normal child, and [the applicant] is the only father again that she has. And that's that family unit is documented and dealt with in the report from Mr. Rodriguez. So that's another compelling factor. And if I just quickly run through some of the points as quickly that are made here is there's evidence. There's a letter from a doctor, Andrew McPherson in the evidence dated 13 March 2018. But he's the one who was initially diagnosed [the applicant’s stepson] as having schizophrenia. And in that letter, he confirmed. So, this has been ongoing. It's not a sudden thing. He confirms that there's missing Nguyen has been assisting with supervision of [the applicant’s stepson] and supporting the family in general. And [the applicant’s] presence in Australia is of great assistance to [his stepson]. So, it's been ongoing that they've both as bond as a family and that [the applicant] has become an integral part of the family unit and certainly taking care of [his stepson] to the extent that the evidence is that [the applicant] has become a primary caregiver. And ... [22]
…
MR SILVER: I remembered what I wanted to say, member. Then, basically just take this part into account. It's in relation to where your member asked the questions. Well, who took care of [the applicant’s stepson] before [the applicant] was on the scene. And "Could you take care of [your son]?" Now she's answered no, she cannot. I think there's two factors to that. Firstly, [the sponsor’s son’s] condition has become significantly worse where it peaks on the 20th of April, May 2020 with a violent incident. That's always, that's always something that the family fears right now, especially if [the applicant] is not in the house if another incident occurs in the future. [23]
[21] Tribunal hearing transcript 3.
[22] Tribunal hearing transcript 19.
[23] Tribunal hearing transcript 20.
CONSIDERATION
The Tribunal’s obligation to engage in an active intellectual process with significant and clearly expressed submissions and evidence when reaching a state of satisfaction whether ‘compelling reasons’ exist not to apply certain Schedule 3 criteria must be understood in terms of the degree to which it can be gleaned from the reasons that the Tribunal has identified and grappled with that material and demonstrated a proper understanding of that material. The requisite degree of consideration may be evinced by reasons that clearly articulate the Tribunal’s findings of fact, grapple with the central arguments raised and set out conclusions that adequately address those arguments insofar as they are relevant to the determination of the issues.
As the Tribunal properly recognised at [15] of its decision, the statutory test involves a consideration of the applicant’s case in terms of whether it is ‘sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria’ (citing MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (MZYPZ) at [10]; Babicci v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24]). In MZYPZ, Bromberg J at [11]-[12] emphasised the subjective nature of the evaluative judgment to be made in the following terms:
11. As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [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.
12. In 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.
While the evaluative judgment is subjective, the Tribunal is required to reach a state of satisfaction that compelling reasons exist. That exercise of a power or discretion is examinable by the Court. 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 at which the Tribunal arrived: see MZYPZ at [13]-[17].
The significance of the Tribunal’s endeavour in cases such as this, along with the importance of proper consideration when undertaking the requisite decision-making task, was expressed in the following terms by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
Therefore, proper, genuine and realistic consideration in cases such as this demands an appreciation of the human consequences that flow from such an exercise of Executive power and the Tribunal’s reasons must disclose sufficient consideration of clearly articulated submissions and evidence provided in support of a central argument or representation made by an applicant which point to the realistic possibility of devastating consequences arising.
The applicant submits that when assessing whether compelling reasons not to apply certain Schedule 3 criteria exist in this case, the Tribunal did not properly consider submissions and evidence in support of three arguments which, individually or cumulatively, demonstrate ‘compelling reasons’ exist because the applicant’s removal from Australia would give rise to the following adverse consequences for the sponsor and her two children:
(a)The applicant’s stepson would not receive the daily care and support provided by the applicant, giving rise to a circumstance where the applicant would not properly adhere to his mental health treatment regime and thereby increasing the risk of another schizophrenic episode during which he could threaten and potentially harm himself and others, particularly the sponsor who was ill-equipped to manage her son and defend herself from any potential threat or act of violence (the stepson argument);
(b)The sponsor would not have the benefit of the applicant supporting her and her two children, thereby exacerbating her depression given the increased burden arising out of having to solely manage her son’s condition and care for her daughter (the sponsor argument);
(c)The applicant’s stepdaughter would not receive the benefit of the applicant’s care and support, particularly in circumstances where she regarded the applicant as her father (the stepdaughter argument).
A review of the Tribunal’s decision reveals it:
(a)properly identified the applicable law and the statutory context within which its assessment of ‘compelling reasons’ was to be made (at [7], [14]-[15]);
(b)identified the applicant’s contention being ‘the care and support provided by the applicant to the sponsor and her son is a compelling reason why the Schedule 3 waiver should apply’ (at [22]);
(c)indicated it had considered a range of relevant oral and documentary evidence before it in relation to this contention, particularly its consideration of all ‘the material in relation to the stepson’s mental health issues…including the evidence provided to the Department, the delegate’s Decision record and written and oral submissions to this Tribunal’ (at [16] and [22]);
(d)summarised aspects of the applicant’s oral evidence at hearing but in so doing made no specific findings in relation to whether it accepted any of that evidence (at [17]-[19]);
(e)summarised aspects of the sponsor’s oral evidence at hearing but in so doing made no specific findings in relation to whether it accepted any of that evidence (at [20]);
(f)noted the representative’s submission to consider the ‘medical evidence regarding the applicant’s stepson’s mental health issues’ and then recorded ten different items or classes of such evidence before it (at [21]);
(g)made a number of findings and reached various conclusions in relation to the claims and evidence before it (at [23]-[24]); and
(h)on the basis of those finding and conclusions, determined that compelling reasons did not exist in this case (at [25]) thereby deciding the applicant did not meet cl 820.211(2)(d)(ii) and affirming the delegate’s decision (at [26]-[27]).
The applicant takes issue with the Tribunal’s reasoning at [23]-[24] of its decision. He contends that these reasons disclose a want of proper, genuine and realistic consideration of the evidence before the Tribunal in support of the argument that ‘compelling reasons’ exist in his case. It is convenient to set out the entirety of [23] and [24] of the Tribunal’s decision because they contain the essence of the reasons as to why the Tribunal was not satisfied that ‘compelling reasons’ exist in this case:
23. In its review, the Tribunal has considered the complexity of the family unit as described by the sponsor and her claim during the hearing that her eldest son has always lived with her, with little evidence to indicate the role that his biological father had in his life prior to his death in October 2020, and the Tribunal finds that there is limited evidence before it to show that the death of his biological father has left a void that the applicant now fills, as claimed. The Tribunal accepts the submission that the applicant assists him, that he takes him to his monthly appointments and that he provides a level of support to the son. the Tribunal has also considered the family arrangement prior to the applicant moving in with the sponsor as claimed, in March 2017, and has considered the evidence before it and the sponsor’s claim, that she stayed home from 2008 to care for her children and the sponsor in her evidence, has not indicated that she was unable to provide the necessary support for her son prior to 2017 when the applicant moved in. In his oral evidence, the applicant submitted that when he met the sponsor, that she told him that she needed help with her son and the Tribunal accepts the applicant’s submissions.
24. The Tribunal is not unsympathetic with the sponsor’s circumstances and that as a 50 year-old mother of 5 children, with the youngest and eldest living with her, that she would value and appreciate the support provided by the applicant. The Tribunal accepts the submissions that indicate that the applicant provides emotional and practical support. However, the Tribunal finds that this is not unusual in a genuine relationship and that parties would support each other in their day to day lives and it is not unreasonable to expect that the applicant would provide support to the sponsor and the two children who live at home, notwithstanding that the sponsor’s son is 30 years of age. The Tribunal in its consideration of the medical documentation submitted has regard to the management of the sponsor’s son’s mental health issues and is satisfied that the sponsor’s son has access to the appropriate health professionals as required and that this has been ongoing since before the parties first met. Whilst the applicant indicated to the Tribunal that he had concerns for the sponsor’s safety because of the size of the sponsor’s son, the Tribunal is not satisfied that this evidence suggests that the sponsor is imminent danger if the applicant was not present whilst awaiting the processing of this partner visa application. The Tribunal has considered the limited evidence provided by the sponsor in regard to the nature of the contact she has with her other three children., the identity of her youngest daughter’s father and possible contact between the children. The sponsor was limited in her explanation about the nature of her relationship with her other three children, firstly indicating that she had normal contact and following a request for clarification, the sponsor confirmed that she either spoke with them over the phone or met with them at school, suggesting that there may be limited custody arrangements in place. The Tribunal is not satisfied that there is sufficient evidence before it to make a finding on the nature of the extended family, and is not satisfied that the sponsor was a reliable witness during the hearing in disclosing all her family circumstances that may potentially be relevant to the Tribunal’s review.
I now turn to assess the Tribunal’s reasoning insofar as it discloses consideration of the evidence and submissions in support of arguments raised as to why ‘compelling reasons’ for waiving the Schedule 3 criteria exist in this case. The applicant’s contention pertains to the Tribunal’s failure to actively and intellectually engage with three particular arguments by way of adequately addressing them in terms of properly, genuinely and realistically considering the submissions and evidence provided in support of each of these arguments. As stated above, I have described these three arguments as the stepson argument, the sponsor argument and the stepdaughter argument. Before addressing the Tribunal’s reasons and the extent to which they disclose active and intellectual engagement with each of these three arguments, I make three preliminary comments or observations about the Tribunal’s reasons and the inadequate approach it took when reaching a state of satisfaction that compelling reasons did not exist in this case.
First, I acknowledge the importance of having to read the Tribunal’s reasons as a whole and not with an eye keenly attuned to the perception of error. Nevertheless, despite having read those reasons as a whole, and with an eye fully open in search of engagement with the applicant’s arguments including by way of any reasonable inferences to be drawn in that regard, I find the Tribunal erred by having failed to give proper, genuine and realistic consideration to a range of submissions and evidence in support of the sponsor argument and the stepson argument. In reaching that conclusion, it is apparent from a reading of the Tribunal’s reasons as a whole that the Tribunal did not properly address each of these arguments in terms of reading, identifying, understanding and evaluating the claims as presented in the relevant submissions and evidence. While the Tribunal identified, and was therefore was aware of a range of documentary evidence it listed at [21] of its reasons, the somewhat brief and cursory reasoning at [23]-[24] bespeaks of a failure to understand and evaluate aspects of that evidence when grappling with the applicant’s various arguments.
Secondly, some features of the Tribunal’s reasons disclose a misapprehension of key aspects of the submissions and evidence rather than an election by the Tribunal to sift out those aspects of the material as part of a process to attribute whatever weight or persuasive quality is appropriate: see Plaintiff M1 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing. This can be discerned from the Tribunal’s failure to demonstrate an understanding of the scope of two of the applicant’s arguments and grapple with the material provided in support of those arguments. For example, the stepson argument and the sponsor argument largely rested upon extensive claims and evidence about the sponsor’s mental health, as well as her son’s mental health which would deteriorate in the applicant’s absence and thereby heighten the possibility of the sponsor being subjected to violent threats and physical harm from her son. Many evidentiary sources pointed toward the sponsor’s inability to care for her son without the applicant and that any deterioration in her son’s mental health had been avoided as a result of the applicant establishing and maintaining a special relationship with his stepson. For instance, in relation to the latter point, evidence was given in relation to the applicant being the only person in the household able to get his stepson to take his medication, the person primarily responsible for his rehabilitative needs (such as by taking him to his appointments, gym, and swimming sessions) and the only father figure in his life. In my view, that material was not properly, genuinely or realistically considered by the Tribunal when it reached a state of satisfaction that compelling reasons did not exist in this case.
Thirdly, the Tribunal’s reasons lack a sufficient degree of clarity in relation to the consideration of fundamental aspects of the medical and psychological evidence which clearly detail the severity of the stepson’s mental health condition and point to the gravity of the consequences that would flow to the stepson and his mother should the applicant be required to leave and remain outside Australia while a further offshore partner visa application would be considered. In forming that view, I have had regard to the Full Court’s reasoning in AXT19 v Minister for Home Affairs [2020] FCAFC 32, at [56] in which Flick, Griffiths and Moshinsky JJ articulate the need for a greater degree of consideration where claims have been advanced in sufficiently clear terms:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
Did the Tribunal fail to meaningfully consider the submissions and evidence when addressing the stepson argument?
The applicant’s stepson’s chronic schizophrenia, the integral daily support provided by the applicant in managing his stepson’s schizophrenia, and the relationship between the applicant and his stepson was central to the argument that compelling reasons exist in this case. Evidence was provided by the applicant, Dr McPherson, Mr Rodriguez, the sponsor, and submissions were made by the applicant’s representative in support of that argument.
The Tribunal’s reasons fail to disclose any proper, genuine or realistic consideration of the claims and evidence in relation to the nature and degree of support the applicant provided to his stepson, and the harm his stepson and others would suffer if that support were withdrawn. The Tribunal at [23] describes the support in simplistic and general terms, only by stating the applicant ‘provides a level of support’ to his stepson. Further, while the Tribunal at [24] stated that it ‘accepts the submissions that indicate that the applicant provides emotional and practical support’, its findings and conclusions do not engage with the unchallenged medical and psychological evidence in that regard. This failure is demonstrated in the Tribunal’s simplistic characterisation of the nature and degree of the applicant’s support of his stepson, which is indicative of a failure to properly and genuinely consider the extensive medical evidence and clearly advanced claims detailing the severity and volatility of the stepson’s condition along with the importance of the applicant’s role in ensuring his stepson’s compliance with his mental health treatment regime so as to maintain equilibrium and avert harm to himself and others. In my view, the Tribunal’s summation of the applicant’s contribution as something ‘not unusual in genuine relationship’ is not indicative of the Tribunal having grappled with the submissions and evidence on this point and demonstrates a failure to comprehend the ‘special relationship’ between the applicant and his stepson and the devastating human consequences that might flow from the stepson’s failure to adhere to his treatment regime in the applicant’s absence.
Accordingly, the Tribunal failed to give proper, genuine and realistic consideration to this component of the applicant’s claims and evidence when addressing this argument. The failure to do so gives rise to jurisdictional error.
Did the Tribunal fail to meaningfully consider the submissions and evidence when addressing the sponsor argument?
The Tribunal’s reasons are also flawed in that they fail to disclose any proper and genuine consideration of the evidence in relation to the central claim that, in the absence of the support provided to the stepson, the sponsor would be at risk of harm. This claim was advanced with clarity and force by the sponsor and supported by the psychological report from Mr Rodriguez and thereby warranted proper resolution.
In her statutory declaration, the sponsor relevantly stated at [13]:
[My son] is a lot bigger than me. He is stronger than me. If [the applicant] is not at home with my and [my son], I cannot control [my son] physically. I fear for my safety if [the applicant] is not here. I fear for [my son’s] welfare if [the applicant] is not here.
The Tribunal’s reasons have been formulated without proper regard to the conclusion specified within Mr Rodriguez’ psychological report dated 29 March 2021, being the conclusion about danger to the family if the applicant left Australia:
I believe a that a major problem, if [the applicant] were to be forced to relocate temporarily to Vietnam, would be removing the main source of support for [the applicant’s stepson]. There is a history that [the applicant’s stepson] has become violent and dangerous in the past, and that [the applicant] has assisted to avoid these incidents.
There is nothing in the Tribunal’s decision, either by way of explanatory statements or inferences that might reasonably be drawn, which indicates the Tribunal having properly, genuinely and realistically considered the evidence about the nature of the sponsor’s need for the applicant’s support, particularly in the context of psychological and other evidence pointing towards the sponsor’s compromised mental health confirmed by her recent diagnosis with severe depression and anxiety. In particular, the summation of the submissions and evidence relating to the sponsor at [20] is silent on this central matter. Further, no reference is made to the sponsor’s mental health in the Tribunal’s reasoning at [23]-[24]. Instead, the Tribunal’s reasons partially rest upon an assumption that because the sponsor had apparently managed her son before the applicant moved in to her home during 2017, she could simply do so again. This analysis bespeaks of a lack of proper, genuine and realistic consideration of the sponsor’s recently diagnosed severe depression and anxiety, particularly in terms of how that impacts upon her capacity to care for herself and her two children, including by way of managing her son’s condition, in the applicant’s absence.
The Tribunal’s reasons also disclose a failure to properly consider and evaluate the evidence in relation to the nature of the risk of harm faced by the sponsor in the applicant’s absence. It is clear from the evidence that the stepson’s condition worsened since 2017, thereby resulting in a need for further support and care. There is also evidence of the stepson having schizophrenic episodes after 2017 that could, and did, culminate in violence. The Tribunal’s reasons at [24] are bereft of any meaningful consideration of that evidence. Instead, the reasons at [24], even when read in the context of the Tribunal’s reasons as a whole, disclose a mischaracterisation of the claims advanced in relation to this point. There was no indication in the evidence and submissions that claimed fear of harm was restricted to a sense of ‘imminent danger’. Rather, the submissions and evidence indicate fear that a violent episode could occur at any time during the applicant’s prolonged absence from Australia because the sponsor was unable to ensure her son’s ongoing compliance with his treatment regime in the applicant’s absence, that a violent incident would again ensue and that she did not have the capacity to defend herself from her son in the event of such an incident. The reasons also do not reveal any explanation as to how the Tribunal arrived at this restricted formulation of the claimed fear of harm to be one of ‘imminent danger’ or otherwise disclose any basis upon which the Tribunal found occasion to ‘sift’ the claims and evidence to arrive at such a conclusory statement.
Accordingly, the Tribunal failed to give proper, genuine and realistic consideration to this component of the claims and evidence when addressing this argument. The failure to do so gives rise to jurisdictional error.
Did the Tribunal fail to meaningfully consider the submissions and evidence when addressing the stepdaughter argument?
Unlike both the stepson and sponsor arguments, the stepdaughter argument was not clearly articulated and had significantly less evidentiary support. On that basis, the Tribunal’s reasons demonstrate sufficient engagement with that argument at [24] by way identifying the stepdaughter’s existence and that her mother appreciates and values the applicant’s support of his stepdaughter. Further, there is nothing in the stepdaughter’s letter which warranted specific mention in the reasons beyond that which exists.
Accordingly, no jurisdictional arises in relation to the Tribunal’s consideration of the stepdaughter argument.
CONCLUSION
For the above reasons, the application before this Court is successful.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 14 April 2025
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