Nguyen v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 143
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 143
File number(s): MLG 3051 of 2019 Judgment of: JUDGE MANSINI Date of judgment: 7 February 2025 Catchwords: MIGRATION – partner visa – where Applicant did not meet Schedule 3 (cl.3001) criterion – whether the Tribunal erred in its consideration not to apply the criterion for compelling reasons – where Tribunal mistakenly considered policy as a mandatory consideration – material error established – application allowed with costs. Legislation: Migration Regulations 1994 (Cth) Sch 2, cl.820.211, Sch 3, cl.3001.
Migration Regulations (Amendment)1996 No. 75
Cases cited: LPDT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 12
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 4 July 2024 Place: Melbourne Counsel for the Applicant: Mr Chia Solicitor for the Applicant: JLe Lawyers Counsel for the Respondents: Mr Lessing Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG3051 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HA NHI NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent to the proceedings be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent to the proceedings be amended to Administrative Review Tribunal.
3.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 16 August 2019 in Case Number 1709574.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicant’s application for review according to law.
5.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
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 Mansini
IN SUMMARY
Before the Court is an application for judicial review of an administrative decision to refuse a partner visa.
For the reasons that follow, the application is allowed with costs.
CONTEXT
The Applicant is a citizen of Vietnam who arrived in Australia on 2 April 2012.
On 21 March 2016, the Applicant married an Australian citizen (sponsor).
On 25 January 2017, the Applicant applied for a Partner (Temporary) (Class UK) (subclass 820) visa and Partner (Residence) (BS-801) visa (the visa) on the basis of her relationship with the sponsor. At the time of the visa application, the Applicant’s last substantive visa had ceased on 18 July 2013.
On 27 February 2017, child of the Applicant and sponsor was born in Australia.
On 27 April 2017, a delegate of the First Respondent Minister refused to grant the Applicant the visa. The delegate was not satisfied that the Applicant met the requirements in cl.820.211(2)(d)(ii) or cl.801.221(8) of the Migration Regulations 1994 (Cth) (Regulations).
By decision record dated 16 August 2019, the Administrative Appeals Tribunal (as it then was) affirmed the delegate’s decision to refuse the visa. In the decision record, relevant to the present application the Tribunal:
(a)Identified the issue before it as whether the Applicant satisfied each of the threshold Schedule 3 criteria (cl.820.211(2)(d) of the Act) and, after finding that the Applicant did not satisfy criterion cl.3001, stated that it was required to consider whether there were compelling reasons for not applying the criterion: at [27] to [33]. A summary of the task in assessment of compelling reasons was outlined at [33] and [34].
(b)In its consideration of the evidence before it, detailed the Applicant’s immigration and relationship history since arrival in Australia in 2012, including that she had met the sponsor whilst already unlawfully in Australia and in a previous relationship and that the Applicant gave no satisfactory explanation as to why she had not applied for a partner visa when she first got together with the sponsor in 2014 or upon learning of her pregnancy in 2015: at [39].
(c)Made a series of findings adverse to the Applicant’s credibility, including that: overall, the Applicant was an unreliable and not credible witness and the Tribunal did not believe much of her evidence: at [41] and [42].
(d)Found that the Applicant’s pregnancy whilst in Australia and not having complied with her visa conditions was not of itself a reason that she could not have made an offshore application nor was the age of the child a reason why the child could not travel and did not amount to a compelling reason not to apply the Schedule 3 criteria: at [43] and [44].
(e)Found that the Applicant’s knowledge that she could be returned to her country of origin for the duration of her relationship with the sponsor and that she had a child while unlawfully in Australia did not amount to a compelling reason: at [44].
(f)Accepted that the sponsor was the child’s biological father and considered there to be no reason why the Applicant and the child could not return to Vietnam, where they had familial support, with the sponsor visiting or moving temporarily pending the outcome of an offshore visa application, observed there was no objective evidence about the sponsor’s lack of employment prospects there and, ultimately, considered that emotional hardship as a result of separation is not of itself a compelling reason: at [45] to[46].
(g)Found that the age or nationality of the child was not a compelling reason because young children and babies often travel overseas and there would be no impediment to the child returning to Australia if a successful offshore visa application was made: at [47].
(h)Took into account the fact of the child’s autism, which was not diagnosed as a disability. Specifically, evidence of a psychologist’s assessment and the child’s difficulties regarding social engagement and language development but expressed concerns that the assessment was based on self-reporting and was outdated by 5 months which could be significant given the (then) young age of the child: at [48].
(i)In its conclusory paragraphs, the Tribunal reasoned:
[53] The Tribunal finds on the whole of the evidence before it that the applicant was determined to remain in Australia under any circumstances. Whilst that motive of itself is not of itself a reason that a Visa should not be granted, policy does dictate that it is a significant matter to be taken into account along with the rest of the evidence before a decision maker. In the present case, taking into account this and the whole of the evidence before it, the Tribunal is not satisfied that there are compelling reasons as to why the Schedule 3 criteria should be waived, and as previously indicated, considers much of the applicant's evidence unreliable.
[54] The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly the applicant does not meet the requirements cl.820.211(2)(d)(ii)
[55] There is no information before the Tribunal that the applicant has been or is the holder of a subclass 300 (Prospective Marriage) visa and no suggestion that the alternative criteria in cl.820.211(5), cl.820.211(6), cl.820.211(7), cl.820.211(8) and cl.820.211(9) apply in the applicant's circumstances.
On 13 September 2019, the Applicant commenced these proceedings for judicial review. On 25 June 2024, the Applicant filed an amended application and, subsequently, an affidavit of 28 June 2024 which annexed the transcript of Tribunal hearing.
The First Respondent contended there was no error of jurisdiction and filed written submissions in support.
On 4 July 2024, a final hearing was convened before the Court as presently constituted (by Microsoft Teams at request of the Applicant’s legal representative). The Applicant and First Respondent were respectively represented by Counsel.
GROUNDS OF REVIEW
By the amended application, the Applicant identified 3 grounds for review in the following terms:
1.The Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
a. In proceeding at [45] on the basis that “emotional hardship of itself…is not…a compelling reason”, the Tribunal construed the term ‘compelling reasons’ in paragraph 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 too narrowly.
b. Further or in the alternative, the Tribunal was so distracted by its view of the applicant’s credibility that it failed to address its statutory task.
2.In the alternative, the Tribunal failed to deal with, or give proper, genuine and realistic consideration to, a claim expressly made or clearly arising from the material.
3.Further or in the alternative to 1 and 2, the Tribunal denied the applicant procedural fairness.
Particulars
The Tribunal failed to put the applicant on notice that their child’s autism or evidence in support thereof was in doubt.
STAUTORY FRAMEWORK
The criterion in issue before the Tribunal was cl.820.211(2)(d) of Schedule 3 to the Regulations, which relevantly provided:
820.21—Criteria to be satisfied at time of application
820.211
(2) An applicant meets the requirements of this subclause if:
…
(d) in the case of an applicant who is not the holder of a substantive visa—either:
…
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Criteria 3001 provides that:
3001(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
The Explanatory Statement that accompanied the Migration Regulations (Amendment)1996 No. 75 (Explanatory Statement) provided:
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.
CONSIDERATION
It was not contentious that the Applicant did not meet the Schedule 3 (cl.3001) criterion and the Tribunal was not required to deal with the other Schedule 3 criteria (cl.3003 and 3004).
Therefore, the only issue for the Tribunal was whether there were compelling reasons not to apply the cl.3001 criterion in the particular circumstances of this case.
Ground 1 – Tribunal asked itself the wrong question and constructively failed to exercise its jurisdiction
The respective contentions
By the first ground, it was contended that the Tribunal asked itself the wrong question and constructively failed to exercise its jurisdiction because it construed the term “compelling reasons” at cl.820.211(d) of Schedule 3 to the Regulations too narrowly and, further or in the alternative, it was so distracted by its view of the Applicant’s credibility that it failed to address its statutory task.
The first aspect of the Tribunal’s decision with which the Applicant took particular issue was its finding that “emotional hardship of itself as a result of separation is not, in the Tribunal’s view, a compelling reason” for not applying the cl.3001 criterion: at [45] of the decision record. The second aspect of the Tribunal’s decision with which the Applicant took particular issue was the emphasis on findings adverse to the Applicant’s credibility: specifically, at [39], [41] and [51] to[53]. She further contended that the Tribunal treated the policy referenced at [53] as a mandatory visa criterion and, in doing so, asked itself the wrong question.
The First Respondent argued that the Applicant sought to misconstrue the Tribunal’s reasons at [45] and, further, the Tribunal’s approach was not inconsistent with the Explanatory Statement. It pointed to the paragraphs where the Tribunal considered other and various types of hardship and asked the Court to find that, even if there were an error, it was immaterial given the Tribunal’s other findings particularly about the Applicant’s history at [44]. Further, the First Respondent said that the credibility findings were significant but not determinative or in any event trivial.
Whilst critical of the Applicant’s failure to expressly particularise the Tribunal’s use of policy at [53], the First Respondent addressed the claim in writing and orally. In this respect, they contended that there was no basis to infer that the Tribunal had regard to policy as a visa criterion or mandatory consideration, where the Tribunal had correctly identified the authoritative interpretation of “compelling reasons”, set out the applicable statute and repeatedly identified that its decision had been based on the whole of the evidence.
Consideration
The legislation provided that the Applicant did not meet the visa criteria at cl.820.211(d)(ii) unless the Minister reached the state of satisfaction that there were compelling reasons for not applying those criteria. The Tribunal’s task entailed an evaluative judgement: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (Bromberg J) at [11]-[13].
The Explanatory Statement does not have legislative force and does not mandate conditions of waiver for purposes of cl.820.211(d)(ii). Nonetheless, it provides guidance as to the intention of the legislature which was to afford greater flexibility to the Minister by introduction of a waiver that was expected only to be exercised where there are reasons of a strongly compassionate nature.
In the present case, there is an Australian-citizen child of the relationship and the Applicant and her sponsor were at the time of the decision already in a long-standing relationship for longer than 2 years. Accordingly, both of the legislature’s examples of reasons of a “strongly compassionate” nature cited in the Explanatory Statement were satisfied by the Applicant in the present case and she relied on both of them in support of her claim for waiver on the basis of “compelling reasons”.
Before embarking on its assessment of the evidence, the Tribunal correctly identified the question before it and then referred to case authorities for the propositions that “compelling reasons” is not defined in the legislation, the reasons should be sufficiently convincing to move a decision maker to exercise its discretion to waive the visa criteria under this provision, and circumstances which constitute “compelling reasons” can arise at any time: at [33] to[34] of the decision record.
The Tribunal then turned to outline the various reasons why the Applicant sought that the cl.3001 criterion not be applied in her case, which encompassed a range of circumstances both financial and emotional, and explanations given orally: at [35] to [37].
At [38] to [56], the Tribunal evaluated the Applicant’s evidence and made findings.
At paragraph [45], the Tribunal stated that “Emotional hardship of itself as a result of separation is not, in the Tribunal’s view a compelling reason”. When read in context, I consider the better view is that this aspect of the reasons conveyed the Tribunal member’s subjective view that the Applicant’s circumstances of emotional hardship as a result of separation from her sponsor did not (of itself, or alone, or without more) constitute a compelling reason to waive the cl.3001 criterion. In this respect, the Tribunal’s approach was consistent with the guidance provided by the Explanatory Statement.
It was not controversial that the Tribunal’s ultimate satisfaction was significantly informed by its assessment of the Applicant’s credibility. When the reasons are dissected, some of the credibility findings go to important aspects of the Applicant’s case and other aspects of the compelling reasons claims were rejected on bases which did not turn on the Applicant’s credit, including the currency of the psychologist’s assessment (see at [43],[45], [47], [48]). The fact of the Applicant’s Australian citizen child and duration of her relationship with the sponsor were objective facts and did not turn on credit.
In its concluding paragraphs, the Tribunal found that the Applicant was determined to remain in Australia under any circumstances. Acknowledging that motive of itself is not a reason why a visa should not be granted, the Tribunal explained that “policy does dictate that this is a significant matter to be taken into account along with the rest of the evidence before the decision maker”. The Tribunal then relied on this (its finding as to motive) and the whole of the evidence before it to conclude that it was not satisfied that there are compelling reasons as to why the Schedule 3 criteria should be waived, adding that it considered much of the Applicant’s evidence unreliable: at [53].
The parties respectively acknowledged that the “policy” was likely that referred to by the delegate in their decision record (presumably gleaned from the reference at [38] of the decision record) but the reasons did not otherwise elaborate. The legislation does not incorporate a policy or require mandatory consideration to be given to policy in the Tribunal’s assessment of whether there were compelling reasons not to apply the cl.3001 criterion. There was no suggestion in the reasons or the materials that the reference to “policy” was to a Ministerial directive as might have binding application.
A consideration such as motive to stay in Australia under any circumstances may have been a relevant matter to be taken into account, as a matter of policy, in performing the statutory task (and, in that case, afforded appropriate weight within the Tribunal’s discretion). Here, the Tribunal member elevated such consideration beyond a relevant factor in the exercise of its discretion to that of a mandatory consideration. The Tribunal member expressly found that a policy dictated consideration of the Applicant’s motive as a significant matter to be taken into account and then disposed of the application for this reason in addition to broad references to the whole of the evidence and credibility findings. In finding that the Tribunal was required by a policy to consider and place significant weight on the Applicant’s motive, the Tribunal mistakenly displaced the mandatory visa criterion. In this way, the Tribunal asked itself the wrong question.
As the High Court of Australia clarified in LPDT v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2024] HCA 12 (Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) (LPDT), in most cases an error will only be jurisdictional if it were material to the decision in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: at [6] to[7]. In LPDT the High Court of Australia explained the importance of the Court taking care not to assume the function of the decision maker in determining whether the threshold of materiality is met: at [15]; and at [16] helpfully summarised as follows:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
In the present case, the Tribunal disposed of the Applicant’s case by taking into account what was summarised as 3 reasons: the impugned reason; the whole of the evidence; and that it considered much of the Applicant’s evidence unreliable.
The whole of the evidence included objective evidence, not dependent on findings of credit or reliability, of the facts that the child is an Australian citizen and of the duration of the relationship between Applicant and sponsor exceeding 2 years. These were individually matters that the legislature had identified in its Explanatory Statement as strongly compassionate reasons which may justify the exercise of the discretion to waive the Schedule 3 criterion. Accordingly, it is not possible to dismiss the identified error as immaterial. In my view, it is at least conceivably possible that the outcome of the Tribunal’s assessment could have differed had the Tribunal not engaged in the identified error. It is not open to the Court to determine what outcome the Tribunal would have arrived at had it not misdirected as determined above.
CONCLUSION
For the above reasons, the first ground of the amended application is established.
As it is strictly unnecessary to do so, I decline to determine the remaining grounds of review.
The application as amended on 25 June 2024 is allowed with costs fixed in the scale amount for final hearing as sought.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 7 February 2025
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