Pahwa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 287
•18 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pahwa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 287
File number(s): SYG 2833 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 18 February 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that there were no compelling reasons to waive the Schedule 3 criteria – whether the Tribunal properly considered the evidence of the applicant’s sponsor considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), s 368
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 51
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Attorney-General (NSW) v Quin (1990) 170 CLR 1
C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Fraser v Minister for Immigration and Border Protection [2014] FCA 1333
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
Navoto v Minister for Home Affairs [2019] FCAFC 135
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme (2003) 216 CLR 212 Selvadurai v Minister for Immigration and Ethnic AffairsSingh v Minister for Home Affairs [2019] FCAFC 3
Number of paragraphs: 43 Dates of hearing: 6 November 2020, 18 February 2021 Place: Sydney Applicant appeared in person Solicitor for the Respondents: Mr A Moss of Clayton Utz ORDERS
SYG 2833 of 2017 BETWEEN: GAGANDEEP PAHWA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application as amended on 29 May 2019 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
Mr Pahwa (the applicant), seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 16 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a temporary partner visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed 30 October 2020, which I adopt.
Background and procedural history
The applicant, a now 32-year-old citizen of India, arrived in Australia on 5 March 2010 holding a student (Temporary) (class TU) subclass 572 (Vocational Education and Training Sector) visa (student visa).[1] After that visa ceased on 18 April 2011, the applicant obtained further substantive visas, with his last-held such visa, a further student visa, cancelled on 5 June 2015.[2]
[1] See, eg, delegate's decision record, at Court Book (CB), 61.
[2] Delegate's decision record, CB 61.
On 30 May 2016, the applicant lodged his application for a partner visa, on the basis of his relationship with his de facto partner (sponsor).[3] In his visa application, the applicant indicates that his relationship with the sponsor began on 14 February 2016.[4]
[3] Applicant’s record of responses, CB 1-29.
[4] Applicant's record of responses, “relationship status”, CB 2
Noting that the application for review indicated that the applicant “will need to demonstrate compelling reasons exist for the grant of [the] partner visa”, the applicant relied upon “medical reason[s] of spouse” and the fact that the relationship had been registered to support his application.[5]
[5] Applicant's record of responses, “substantive visa”, CB 1 and “relationship” at CB 17.
On 7 June 2016, the Minister’s Department invited the applicant to comment upon the combined operation of criteria 820.211(2)(d)(ii) in schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), the effect of which required the applicant to demonstrate “compelling reasons for not applying” Schedule 3 criterion 3001. This criterion required the applicant to have applied for the partner visa within 28 days of his last substantive visa ceasing to be in effect (i.e. on or before 3 July 2015).[6]
[6] Invitation to comment on information for partner visa dated 7 June 2016 (CB 36-40).
Relevantly in reply to the Minister’s Department's invitation, the sponsor submitted that the applicant is her “main source of emotional support” and she would “suffer significant [psychological] hardship” if he was forced to leave Australia.[7]
[7] Submissions of the applicant and sponsor, CB 44.
On 27 September 2016, the delegate refused to grant the applicant a partner visa, as they were not satisfied “compelling reasons” existed for not applying criterion 3001.[8]
[8] CB 61-86.
The delegate’s reasoning was based, in part, upon the paucity of evidence as to the sponsor’s medical issues, the “severity of the anticipated [emotional] hardship and how it would differ to that experienced by other couples required to separate whilst they await an offshore application”.[9]
[9] CB 64.
On 14 October 2016, the applicant applied to the Tribunal for review of the delegate's decision.[10]
[10] See Application for Review at CB 87-88.
On 21 July 2017, the Tribunal invited the applicant to attend a hearing before it, scheduled for 11 August 2017, to give evidence and present argument.[11] In response to that invitation, the applicant indicated that he, his legal representative and the sponsor would all attend that hearing.[12]
[11] CB 94-96.
[12] CB 97-101.
On 10 August 2017, the applicant's legal representative provided further evidence and written submissions in support of the application. That material included, among other things:
(a)a statement from the sponsor asserting, in part, that she had experienced "deep depression" following her stroke and the applicant had positively impacted upon her various medical conditions. The sponsor also outlined the psychological consequences which she feared would arise if the Applicant was forced to depart Australia.[13] Relevantly, she also stated:
[13] Statement of the sponsor dated 10 August 2017, CB 135-138.
I notified the GP I was seeing at the time that I was feeling depressed. I was then referred to a P[s]ychologist who specialised in helping those who had suffered serious health issues. I had about three appointments with this therapist, on the third visit the therapist was telling me about her son who had recently been hit by a car…I left this appointment extremely mentally & emotionally fragile[.] I was not ever going to be able to tell her about the suicidal thoughts I was battling with so[ ]I never returned to her appointment again.
(b)a statement from the applicant, which states the sponsor "has a history of emotional, suicidal thoughts & medical health issues and seeing a psychologist after having a stroke";[14]
(c)written submissions which suggest that "the presence of the applicant in the sponsor's life has helped her psychologically…and emotionally, in relation to dealing with her depression, anxiety, suicidal thoughts and stress";[15] and
(d)various medical records of the sponsor, including:
(i)a Discharge Summary dated 28 October 2014, where Dr Peter Bailey indicated the applicant had “[r]efused neuropsychology services as inpatient” and recommended the Sponsor's general practitioner (GP) “review her … mental and emotional health following [her] stay in hospital”.[16]
(ii)a letter dated 26 August 2014 from Dr Ganesmoorthy Subakumar to Dr Catherine Lennox suggesting it is “obvious [the sponsor] is suffering from brain injury related secondary effects with resulting in [sic] anxiety and probably more of post traumatic stress disorder”. Dr Subarkumar explained the applicant is “best seen by a psychologist to learn more about coping strategies”.[17]
[14] Statement of the applicant, undated, CB 139-140.
[15] Submissions of applicant's then legal representative dated 10 August 2017, CB 113.
[16] CB 214.
[17] CB 219.
An oral hearing took place before the Tribunal on 11 August 2017. A transcript of that hearing is in evidence before the Court.[18] The following exchanges regarding the sponsor's mental and emotional health, and her treatment history in relation thereto, ensued:[19]
[18] See Annexure DS-1 to affidavit of Dylan Sherman affirmed 12 July 2019, filed 1 August 2019 (Transcript).
[19] See specifically Transcript, lines 764-780, 1334-1374, 1570-1608.
Tribunal Member: Okay now [the sponsor's] depression and anxiety has that been medically diagnosed?
[Applicant]: She's still getting diagnoses for that.
Tribunal Member: So it hasn't been medically diagnosed?
[Applicant]: No.
Tribunal Member: So is she having counselling?
[Applicant]: No.
Tribunal Member: Is she medicated for that condition?
[Applicant]: No.
…
[Sponsor]:And I did seek some help with trying to do some counselling and stuff with a psychologist and I found that to be much more damaging than what it was helping. So I just decided I can't do that, I was not in a position to put myself at any more sort of risk of any setbacks in my recovery. So I never continued with the counselling.
…
Tribunal Member: So are you currently medicated?
[Sponsor]:…But my doctor never wanted to put me on any sort of antidepressants or anything like this, she said they are very hard to come off and she didn't think it would be worth it. And I never told her like I did have suicidal tendencies and things like this at the time. And I did...I know the seriousness of that and I never wanted to disclose that because I didn't want that on my record. And I didn't want to then you know them freak out and put me into the mental health ward or anything like this. I thought you know...I just, I knew to you know, it was better that I kept it quiet.
…
Tribunal Member: Okay thank you very much for your time today. You will hear from me in the coming weeks, okay. Just as a matter of interest. You haven't seen a psychologist or anybody about your mental health in the last 12 months.
[Sponsor]: Not recently. I did see a counsellor. Gagan and I did go see a couple's counsellor. I think we saw him twice.
Tribunal Member: Why was that?
[Sponsor]: Well it was just more so that we could nut out a few coping mechanisms. It wasn't very helpful. I've come up with a strategy to sort of…it's how I've sort of adapted is I can lay everything out but then I can pack it up and it goes in a little box and it goes on the shelf. And then when I need to I can express it and I can feel it and I can look at it and I pack it back up and I put it back in the box because I've got other things to take my mind off and that's how I manage it.
Tribunal Member: Do you remember when it was?
[Sponsor]: Sorry?
Tribunal Member: Do you know when that was that you saw that…?
[Sponsor]: It was…I can't remember if it was like this year or last year.
Tribunal Member: But it was for a different issue.
[Sponsor]: Yeah it was sort of living together and coming you know like me adjusting to living together because I've lived by myself for so long for 3 years and sort of coping to live together I found very struggling. I found it really hard. I'm used to being in the Gold Coast. I would've been a basket case before Gagan but yeah it was more just to give us a safe place for us both to be able to express where we were at and communicate and it worked.
Tribunal decision
As noted above, on 16 August 2017, the Tribunal affirmed the delegate's decision not to grant the applicant a partner visa, not being satisfied that there were “compelling reasons” not to require compliance with criterion 3001 in the circumstances of the present case.[20]
[20] Tribunal's Decision Record (DR) at CB 226-235.
Relevantly, in deciding whether such circumstances existed, the Tribunal considered how any separation might affect the sponsor, in light of the evidence given, and accepted by the Tribunal, as to her “fragile state”, poor physical health and emotional dependence upon the applicant.[21]
[21] DR [61]-[62] (CB 234).
The Tribunal accepted that the sponsor “has suffered from anxiety and depression” and whilst she had “improved more than was anticipated”, it accepted “she is still emotionally fragile as evidenced by a relatively recent period of suicidal ideation”.[22]
[22] DR [62] (CB 234).
The Tribunal also accepted that the applicant and sponsor “have developed a very close and emotionally supportive relationship” and accepted that the sponsor's mental health issues “may be exacerbated by stress, and that separation from her partner may well trigger the condition”.[23]
[23] DR [63] (CB 235).
However, after “carefully consider[ing] the available medical evidence and the evidence of the support systems both in terms of treatment and emotional and physical support available to the sponsor”, the Tribunal ultimately concluded that these matters did not (either individually, or cumulatively) constitute a compelling reason not to apply the Schedule 3 criterion in the present case.[24] As the Tribunal explained at [63], in reaching this finding:
the Tribunal was mindful of the evidence of the sponsor herself that she was able to access counselling to assist with her mental health issues and that the support she enjoys from the her family [sic] was not contingent on the applicant being in the country. There were still further treatment options available to her to assist her and her physical health was being monitored by her specialists. There was no evidence that treatment was not and would not, in the foreseeable future, continue to be available to the sponsor.
[24] DR [64] (CB 235).
The Tribunal also noted that the applicant and sponsor "can continue to provide each other with emotional support when they are apart using the range of communication tools that are available".[25]
[25] DR [67] (CB 235).
THE PRESENT PROCEEDINGS
These proceedings began with a show cause application filed 13 September 2017. At that time the applicant was unrepresented and the grounds lacked particulars.
The applicant subsequently obtained legal representation and his lawyers filed on his behalf an amended application on 29 May 2019. The applicant continues to rely on that application, although his lawyers ceased acting for him. There is one particularised ground in that application as amended:
1.The Second Respondent (the Tribunal) erred by misstating and failing to properly consider the Applicant’s sponsor’s evidence
Particulars
a. At [64] of its decision the Tribunal found that, among other things. The emotional and physical difficulties that would affect the sponsor during a period of separation while waiting for a visa application to be processed was not a compelling reason to waive the Schedule 3 criteria.
b. At [63] the Tribunal accepted that the sponsor had a medical condition and mental health issues which may be exacerbated by stress and that separation from the Applicant may well trigger the medical condition. However the Tribunal reasoned that the evidence of the sponsor herself was that she was able to access counselling to assist with her mental health issues and that there was no evidence that treatment was not and would not, in the foreseeable future, continue to be available to the sponsor.
c. In making the findings set out above at (a)-(b), the Tribunal misstated and failed to properly consider the sponsor’s evidence as set out in her written statement at CB 136. In her written statement at CB 136, the sponsor’s evidence was that she had seen a psychologist. The sponsor recounted that on her third appointment, the psychologist disclosed to the sponsor that he son had been hit by a car, which as a result of the sponsor’s own experience, left the sponsor in an extremely mentally and emotionally fragile state, to the point that she ceased her appointments with the psychologist as she felt she not ever going to be able to talk to the psychologist about her own issues such as her suicidal thoughts.
d. As a consequence of the Tribunal’s misstatement of and failure to properly consider the sponsor’s evidence in her written statement, the Tribunal failed to take into account the sponsor’s evidence that counselling and psychological treatment had not been of any assistance to her in the past. As such findings made and reasons given by the Tribunal at [63] did not demonstrate any active intellectual engagement with all relevant aspects of the sponsor’s evidence.
e. The sponsor’s evidence was relevant to the issue of whether there was a compelling reasons to waive the Schedule 3 criteria, such that the Applicant could meet the criteria for the grant of a Subclass 820 Partner visa. Consequently the Tribunal’s decision was affected by jurisdictional error.
I have before me as evidence the affidavit of Dylan Sherman made on 12 July 2019. Annexed to Mr Sherman’s affidavit is a transcript of the hearing before the Tribunal. The Minister also tendered the court book lodged on 3 November 2017, which I received. The applicant did not make any written submissions of his own. Neither did he rely at the trial on any evidence.
This matter has had a rather long procedural history. It was initially docketed to another judge, but was transferred to my docket last year. It came before me for hearing on 6 November 2020. At that time the applicant was held on remand at Long Bay Correctional Centre (Long Bay) and attended by telephone. It quickly became apparent that the hearing could not be conducted fairly as the applicant lacked critical documents. I adjourned the hearing until today and required the Minister’s lawyers to serve necessary documents on the applicant at Long Bay. That obligation was met by the Minister’s solicitors.
I also ordered that the applicant be brought to Court in person for the purposes of today’s resumed hearing. When called upon, he was unable to expand upon the ground of review advanced on his behalf. When pressed, he was unable to counter the proposition that the hearing conducted by the Tribunal and the decision made by the Tribunal were fair and comprehensively considered his claims. I accept the Minister’s solicitor’s oral submission that the conclusions reached by the Tribunal were open to it on the material before it. I also accept that the Tribunal engaged intellectually with the issue and material advanced by the applicant.
The Minister’s solicitors deal with the grounds of review advanced. I agree with and adopt those submissions.
Applicable principles
In criterion 3001 cases such as the present, the Tribunal's obligation is to “consider”, in the sense of engage in an “active, genuine and intellectual process", whether "compelling reasons”, properly understood, exist.[26] In engaging in this process, the Tribunal is required to have regard to the representations and material put before it “as a matter of substance”.[27]
[26] Choi v Minister for Immigration and Border Protection [2018] FCA 291, [7] applying MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510, [19].
[27] Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, [45]; Fraser v Minister for Immigration and Border Protection [2014] FCA 1333, [22].
It is also well-established that there is a distinction between the mandated process of “consideration” and the requirement to prepare a statement of reasons in accordance with s 368 of the Migration Act 1958 (Cth).[28] In preparing that statement of reasons, the Tribunal is not required to expressly refer to every piece of evidence before it, nor all of the contentions raised by an applicant.[29]
[28] Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme (2003) 216 CLR 212 [46], [55]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320, [47]-[49].
[29] Buadromo, [41], [48]-[49]; Navoto v Minister for Home Affairs [2019] FCAFC 135, [88]; Matthews v Minister for Home Affairs [2020] FCAFC 146, [28]; C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63, [101].
Whilst it may be accepted that a Tribunal's failure to expressly refer to evidence can support an inference that the Tribunal has failed to consider that evidence or did not consider it material to its decision,[30] such inferences are “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”,[31] including where it is "unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected" and where the evidence is of limited importance given its cogency and centrality.[32]
[30] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [5], [10], [69]; Minister for Home Affairs v Omar [2019] FCAFC 188, [34(d)].
[31] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46]-[47].
[32] Cf. Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431, [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [52]-[56].
In that sense, courts have repeatedly emphasised that a finding of lack of intellectual engagement is not lightly to be made.[33] Care must be taken to ensure that allegations of “lack of intellectual engagement” do not “slide” into constitutionally-impermissible merits review.[34]
[33] Singh v Minister for Home Affairs [2019] FCAFC 3, [37].
[34] See, eg, Maioha, [42], [45]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [32]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [30].
Analysis of Tribunal decision
I accept that it is clear that in the course of making the findings referred to above the Tribunal appropriately had regard to the relevant evidence before it. The Tribunal's findings that the sponsor “was able to access counsel[l]ing to assist with her mental health issues” and that “further treatment options [were] available to assist her” were both supported by the evidence, and not affected by the sponsor's previous experiences.
The evidence before the Tribunal was amply capable of supporting findings both that there were support and counselling options available to her, and that she knew of the existence of these options and how to access them, if she wished to do so. Specifically,
(a)the documentary medical evidence indicated that the sponsor's specialist treating doctors had recommended that her GP “review” the sponsor's mental health, and that the sponsor had “declined” neuropsychology support when she was admitted as an inpatient;
(b)the sponsor's own oral evidence to the Tribunal was that she “did seek some help with trying to dos some counselling and stuff with a psychologist”[35] and that her doctor “never wanted to put [her] on any sort of antidepressants”.[36] This evidence suggests the sponsor knew that she was able to access psychological support through her doctor/GP, and had previously discussed possible treatment options with her doctor;
(c)the applicant's oral evidence to the Tribunal was that although the sponsor was not “having counselling” and was not “medicated”, the sponsor was “still getting diagnoses” for her “depression and anxiety”. As this evidence was in the present tense (“still getting”), this suggests the sponsor was attempting to seek formal diagnoses at the time of hearing;[37]
(d)the sponsor's oral evidence at the conclusion of the Tribunal hearing was that she and the applicant “did go see a couple's counsellor” to “nut out a few coping mechanisms” and “give [them] a safe place for [them] both to be able to express where [they] were at and communicate”. Importantly, the sponsor advised that this “worked”.[38]
Significantly, this evidence further strengthens the suggestion that the Sponsor was aware of the range of psychological and emotional support available to her, was willing to access if she wished, and that this support could - in certain circumstances - be helpful.
(e)the sponsor's oral evidence was that she had “never told her” doctor of her suicidal ideation because she “kn[e]w the seriousness of that” and “didn't want that on [her] record” or to “put [her] into the mental health ward”.
This statement betrays with some clarity the degree to which the Sponsor was aware of the possible range of treatment options available to her, knew of the extent of her own mental health issues, demonstrates that she understood one possible way through which she could access them (i.e. it shows the Sponsor understood that if she raised this issue with her doctor, she may have been referred for in-patient care).
[35] Transcript, lines 1334-1339.
[36] Transcript, lines 1364-1372.
[37] Transcript, lines 764-778.
[38] Transcript, lines 1570-1606.
When the relevant passage[39] is read in context, it is clear that the Tribunal was there concerned with the sponsor's ability to “access” counselling services if needed. It was not concerned with whether her previous attempts at accessing counselling had proved successful, nor was it concerned with any reasons why the sponsor had not availed herself of those resources recently.
[39] in DR [63].
Put another way, the finding impugned by the applicant was a finding of fact that the sponsor could, if she chose to do so, access counselling services and psychological support to assist with any anxiety, depression or mental health issues arising from, or subsequent to, any separation. As set out above, there was significant evidentiary support for that proposition.
In reaching that conclusion, the Tribunal did not fail to consider the sponsor's evidence that her previous visits to a psychologist were unhelpful. In particular[40], the Tribunal expressly recorded the sponsor's evidence that “she had initially sought some help from a psychologist but had found that to be more damaging than helpful so did not continue with the treatment”.[41]
[40] at DR [32].
[41] CB 230-231.
The transcript also makes clear that the Tribunal was aware of this evidence. The sponsor's evidence regarding her recovery and her previous experience with a psychologist were outlined at lines 1327–1339. Having noted that evidence, the Tribunal then sought further evidence from the sponsor regarding her current state.[42]
[42] See transcript lines 1341ff.
Furthermore, at the conclusion of the hearing, the Tribunal also asked the sponsor whether she had “seen a psychologist or anybody about [her] mental health” in the year prior to the hearing.[43] She answered “[n]ot recently” but noted she “did see a counsellor” and had seen a “couple's counsellor” with the Applicant possibly “twice” in that period.[44]
[43] See transcript lines 1341ff.
[44] Transcript, lines 1574-1575.
I accept that in that light, the impugned findings[45] are not such that they could only have been reached if the Tribunal had overlooked or misunderstood the sponsor's evidence.
[45] at DR [63]
Whilst one may readily accept that the sponsor appears to have faced significant psychological difficulties, noting these are highly individual matters not readily suited to generalisations and which need to be treated with some sensitivity, the suggestion that the sponsor had a previously unsuccessful experience with one treating psychologist says little to nothing about whether future treatments or other practitioners will be successful (and even less about the anterior question on which the Tribunal was focused, being whether treatment options are available at all).
Support for that conclusion may be drawn from the sponsor's own evidence that she considered her “couples counselling” with the applicant, which had occurred on approximately two occasions in the period leading up to the Tribunal hearing, to have been successful.[46]
[46] Transcript, lines 1570-1606.
In those circumstances, the suggestion that the Tribunal “failed to consider” or failed to engage as a matter of substance with the sponsor's evidence as to her previous experience with psychologists cannot be sustained. The Tribunal was clearly aware of, and had regard to that evidence in the course of reaching its decision. It simply did not draw favourable inferences from that evidence or consider that it materially advanced the applicant's case.
However, a decision-maker's obligation to “consider” a matter does not, without more, require the decision-maker to reach any particular conclusion on that matter. It is trite law to state that:
(a)an applicant's claims need not be accepted uncritically by the Tribunal, but may generally be accepted, rejected or weighted as the Tribunal considers appropriate in the circumstances;[47]
(b)contradictory information is not required before the Tribunal may lawfully reject an applicant's claims or draw adverse inferences from certain evidence put before it;[48] and
(c)absent some proven species of error, the weight to be given to evidence or matters before the Tribunal and the inferences to be drawn from that evidence are matters for it alone, over which the Court does not, and cannot, exercise any jurisdiction. Such matters are quintessentially matters of “merits review”.[49]
[47] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 451; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, 27.
[48] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348.
[49] Abebe v Commonwealth (1999) 197 CLR 510, [197]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, 281-2; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6.
CONCLUSION
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied when the application was filed. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 26 February 2021
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