Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 110
•6 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 110
File number(s): MLG 2852 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 6 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - Partner (Temporary) (Class UK) subclass visa – Applicant not a holder of a substantive visa when making visa application - failure to apply for visa before expiry of subclass 600 Visitor visa - delegate finding Applicant did not meet Schedule 3 criteria – reason provided by Applicant not considered a compelling reason or a reason outside the Applicant’s control – whether Tribunal denied Applicant of procedural fairness in breach of section 360 of the Migration Act 1958 (Cth) – Applicant attending first hearing - no requirement for second hearing to be granted – no jurisdictional error found – application dismissed. Legislation: Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) sch 2 cl 820.211(2)(d), 3
Cases cited: AEK15 v Minister for Immigration and Border Protection (2016) 244 FCR 328
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 50 ALD 609
Ruan v Minister for Immigration and Anor [2014] FCCA 1866
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZSZW v Minister for Immigration and Border Protection [2015] FCA 562
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 19 August 2021 Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Winstan Lawyers Counsel for the Respondents: Mr Yuile Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2852 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUC DINH PHAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Application filed on 2 August 2021 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,853
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 22 August 2018. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (Class UK) subclass visa ('Visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Vietnamese national. The Applicant was the holder of a subclass 600 Visitor visa which ceased on 5 April 2016. He applied for the visa on 11 April 2016 and was granted a Bridging Visa C on 12 April 2016.
On 21 April 2016, the Department wrote to the Applicant. In that letter, the Department summarised criteria set out in Schedule 3 to the Migration Regulations 1994 (‘Regulations’) and invited the Applicant to provide information addressing whether he met the criteria.
In response to the invitation above, the Applicant wrote to the Department and sought to respond to its queries. The response is undated but is contained at Court Book 50.
On 2 September 2016, a delegate of the Minister ('delegate') refused to grant the Applicant the Visa. The delegate found that the Applicant had not met the requirements of Schedule 3, criteria 3001 and further that there were not compelling reasons for the grant of the Visa. On 22 September 2016 the Applicant applied to the Tribunal for review of the delegate's decision.
On 10 May 2017, a hearing was held at the Tribunal. The Applicant and the Applicant’s sponsor, who is also the Applicant’s wife attended the hearing. At the hearing, the Applicant was assisted by an interpreter.
On 2 August 2018, the Tribunal wrote to the Applicant inviting the Applicant to provide further information (Court Book 108-109). In the letter, the Tribunal stated that it was writing to the Applicant because ‘significant time has passed since your hearing was conducted on 10 May 2017’. The Tribunal then invited the Applicant to advise ‘if there are any further matters that prevented you from lodging the Visa application by 5 April 2016 that you consider were outside your control’ and also invited the Applicant to provide information as to ‘any other reasons you are not the holder of a substantive visa when you lodged the partner visa application and whether these reasons were factors outside your control’. The Applicant was further invited to provide information as to whether there were any ‘compelling reasons’ that the Tribunal should consider when granting the Visa, and evidence of whether he had complied with conditions imposed on visas since he had been in Australia.
The Applicant did not respond to the invitation sent by the Department on 2 August 2018.
On 22 August 2018, the Tribunal affirmed the decision not to grant the Applicant the Visa.
The Applicant commenced proceedings in this Court on 21 September 2018 by filing an application for judicial review and an affidavit in support.
Orders were subsequently made by Registrar Carlton for the conduct of the proceeding. The Applicant subsequently filed an Amended Application dated 2 August 2021 (‘Application’) and an outline of submissions dated 2 August 2021. The Minister filed a Court Book and an outline of submissions dated 12 August 2021.
THE APPLICATION
Ground 1
The first ground of review in the Application is:
The decision of the Second Respondent ("the Tribunal") was affected by jurisdictional error in that the Tribunal erred in interpreting or applying the law.
Particulars
(a)The Applicant was obliged by 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 ("the Regulations") to meet the requirements of criterion 3004 of Schedule 3 unless the Minister was satisfied that there were "compelling reasons" for not applying that criterion.
(b)Criterion 3004(c) required that "the Minister is satisfied that the applicant is not the holder of a substantive visa "because of factors beyond the applicant's control".
(c) The Tribunal accepted:
" ... that the [Minister's] Department did communicate with the visa applicant, at some stage advising him that the last date to enter Australia was 14/04/16. But this is not the same thing as the date the visa ceases to have effect. .. "
(Tribunal's Statement of Decision and Reasons, CB 118, [23))
(d)The Tribunal accepted that the Applicant's wife and sponsor had suffered an ectopic pregnancy in early 2016 and noted the Applicant's statement in his application for the visa that:
"it turned out to be an ectopic pregnancy, we both were devastated and it took us some time to heal. We have both overcome that now and continued on with our decision to get married." (CB 16)
(e)The Tribunal said it had had regard to the material before the delegate, which also included the Applicant's response to the delegate, saying in part:
". . . for the past months, since my wife's ectopic pregnancy I think my mind hasn't been the same and I think the organising of both families speaking and organising our wedding plans has been stressful too, both our parents are still very typical and we have to respect Vietnamese culture when it comes to the wedding..... We are grateful we found each other and appreciate each other every day, after my wife's ectopic pregnancy we have started trying again and my wife's very sensitive to the situation. I want to be here for her. I don't think she can cope with a separation if my visa was not granted." (CB 50)
(f)By reference to the circumstances set out in particulars (a) to (e) above, the Tribunal erred in interpreting or applying the term "because of factors beyond the applicant's control" in criterion 3004, shown by the Tribunal's conclusions that:
"I do not consider that the visa applicant's claimed confusion about the effective date of the visa applicant's visitor visa constitutes a factor that was outside the control of the parties." (CB 118, [24]),
and
" .. . the applicant does not satisfy criterion 3004." (CB 118, [25]-[26])
(g)Further to particular (f) of this Ground, by reference to the circumstances set out in particulars (a) to (e) above, and to the length of the relationship at the time of the Tribunal's decision, and to the fact that the application for the visa was made only 6 days after the Applicant's previous substantive visa had expired, the Tribunal erred in interpreting or applying the term "compelling reasons" in item 820.21(2)(d)(ii) of Schedule 2, shown by the Tribunal having regard to its view of whether an ectopic pregnancy was "reasonably commonplace", and to its conclusions that: there were not compelling reasons for not applying criterion 3004. (CB 121,[ 48]-[ 49])
(h)The Tribunal considered the question "whether there were compelling reasons for granting the visa" as relevant to the question whether not to apply criterion 3004 pursuant to item 820.21(2)(d)(ii) of Schedule 2, (CB 120, [39]), but it was relevant instead to the question whether the applicant met criterion 3004(d).
The Applicant was required to satisfy clause 820.211(2)(d) of the Regulations. That provision relevantly states that an applicant who is not the holder of a substantive visa must satisfy ‘Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria’.
The Tribunal found that the Applicant satisfied criteria 3001, but not 3004 (criteria 3003 was found not to be applicable to the Applicant). The Tribunal was not satisfied criteria 3004 had been met because it found the Applicant was not the holder of a substantive visa at the time he applied for the visa ‘because of factors beyond the applicant’s control’. It also found that there were not compelling reasons to waive the requirements set out in condition 3004.
Under this ground of review, the Applicant contends firstly that the Tribunal fell into error in interpreting or applying the term ‘because of factors beyond the applicant’s control’ in criteria 3004. The Applicant contends that the error occurred in the following manner. First, the Department provided incorrect and confusing advice that the last date for the Applicant to enter Australia was 14 April 2016. In circumstances where the Applicant had previously complied with conditions on his visitor visas, it was submitted that the Court should accept that the wrong advice by the Minister’s Department was a factor in the Applicant not holding a substantive visa at the time he applied for the Visa. Second, the Applicant’s wife suffered an ectopic pregnancy and the Applicant was also planning a marriage.
The Applicant also submitted under this ground that the Tribunal erred in interpreting or applying the term ‘compelling reasons’ in clause 820.21(2)(d)(ii) of Schedule 2 to the Regulations. This submission was advanced as follows. First, it was an error by the Tribunal not to find there existed compelling circumstances in light of all of the circumstances set out in the Applicant’s submissions above, the length of the relationship between the Applicant and his partner, and the fact that the application for the Visa was only six days after the substantive Visa had expired. Second, the Tribunal dismissed the distress suffered by the Applicant and described the ectopic pregnancy as ‘reasonably commonplace’, however the Tribunal was required to simply consider whether the distress suffered by the Applicant was ‘compelling’, not commonplace.
Finally, the Applicant submitted that when considering whether or not there were ‘compelling reasons’ for not applying criterion 3001, 3003 and 3004, the Tribunal instead considered whether there were ‘compelling reasons for granting the visa’. It was submitted that addressing this latter question was not only a distraction, but it was relevant to the logically prior question of whether the Applicant met condition 3004 (d). By addressing the matter in this way, it was submitted, the Tribunal did not apply the correct legal test and in fact applied a test that imposed a higher and additional burden upon the Applicant. The asserted error was said by the Applicant to be material.
Consideration of the Applicant’s submissions must begin with a review of the relevant authorities, and in particular, what the superior courts have said about whether a matter is beyond or within a person’s control, and also about ‘compelling reasons’.
Whether a matter is within a person’s control was considered (albeit in a different context) by Mansfield J in Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426 at 438. Mansfield J stated that:
The concept of “control” in that context is one of fact, but I think it is intended to mean something which the person could have done something about. If the person is ill, or there is some entirely external factor, eg a transport strike, it may amount to circumstances which are not within that person's control. The person, in those circumstances, would not recriminate that something should or should not have been done. To forget to attend an appointment does not fall within that description; it is an occasion where there is an element of recrimination - the person could have done something about it, but for whatever reason, did not do so.
Mansfield J also stated that ‘beyond the control of the person concerned’ is or refers to ‘occurrences which the person concerned could not realistically prevent’.
The comments of Mansfield J were not made in the migration law jurisdiction. His Honour’s comments have, however, subsequently been cited in the migration law jurisdiction: see Ruan v Minister for Immigration and Anor [2014] FCCA 1866 at [38] and Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 at [18].
Before me, the Applicant contended that when the phrase ‘the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control’ in criteria 3004 (c) is considered, it does not use the word ‘solely’. The submission, as I understood it, is that the phrase could accommodate some factors being within an applicant’s control. That may be the case, but it does not of itself provide a complete answer for the Applicant. That is because what is clear from the regulation is that whatever factor may be in existence, that factor must be the cause of the person not holding the visa.
As to the meaning of the phrase ‘compelling circumstances’, Allsop CJ in Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [30] stated it is not limited to hardship, but that hardship is the element most referred to. At [34], Allsop CJ noted that the existence of a genuine relationship is already a requirement for a partner visa and therefore ‘one must show additional impetus for the waiver of the relevant Sch 3 criteria. This often means emphasising the hardship that would result (to the applicant, sponsor, or third parties) if the waiver is not granted’. The meaning of the word ‘compelling’ was also considered in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [31] by French CJ, Bell, Keane and Gordon JJ.
Finally, it is pertinent to note having regard to the manner in which the Applicant approached this ground of review, that it was open to the Tribunal to take into account any circumstances up until the time the decision was made: Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
I turn now to consider the Applicant’s submissions.
There are two pieces of written information that are relevant to the Applicant’s submissions. The first is what he set out in his application for the Visa. The visa application is set out in the Court Book. At page 16 of the visa application (Court Book 16), the Applicant states as follows:
…soon after returning to australia with my wife accidentally fell pregnant, however we both were thrilled. unfortunately it turned out to be an ectopic pregnancy, we were both devasted [sic], and it took us sometime to heal. we have both overcome that now and continued on with our decision to get married, which was on the 10tt april 2016. However, we have decided to wait until later on to have the huge Vietnamese reception wedding until we save some more money. [errors in original]
There is then correspondence from the Applicant to the Department following an invitation from the Department. In that undated correspondence (Court Book 50), the Applicant stated, among other things, the following:
I would like to apologise for the fact that I miscalculated my stay since arrival into Australia in January, it wasn’t until I received this letter that I realised I had overstayed my 90days, my wife and I miscalculated and had it in our heads by looking at my last visa which was granted which ended on the 14 of April.
I don’t know how I could have made such a mistake and overlooked this issue. This is my genuine mistake and I had no intentions of overstaying my visa. For the past months since my wife’s ectopic pregnancy I think my mind hasn’t been the same and the organising of both families speaking and organising our wedding plans has been stressful too. Both our parents are still very typical Vietnamese and we have to respect our Vietnamese culture when it comes to the wedding.
If you see my past history in my passport, I’m a tour guide back in Vietnam and never have I once overstayed my visa to any country, because of my stupidity this time I can totally ruin my career. Now that I have applied for a partner visa I hope you can forgive me this once and consider my plee for stupidity, i [sic] can assure you that if I was aware I would have not let this happen and that we could have signed our lives away to each other a week before so this would not have occurred. I can promise you that if my partner visa was granted I promise to agree to all conditions. [errors in original]
It can be seen from the above that in that letter to the Department, the Applicant accepted among other things that he had made a mistake when calculating the time left on his visa.
On 2 August 2018, the Tribunal in the course of considering the matter wrote to the Applicant and sought further information from him regarding factors that he considered to be outside his control which ultimately caused him not to be the holder of a substantive visa. The Applicant did not respond to this request for further information. Accordingly, the only information that the Tribunal had in writing from the Applicant about this issue is that set out above.
The Tribunal considered these matters at paragraphs [23]-[24] of its reasons. The Tribunal stated:
23.The visa applicant has not responded to this request for information. However, based on the evidence provided at the hearing I accept that the Department (DIBP) did communicate with the visa applicant, at some stage advising that the last date to enter Australia was 14/04/2016. But this is not the same thing as the date the visa ceases to have effect and visa holders are expected to be aware of when they should leave the country. I also note that this was the 4th time the visa applicant had entered the country on this visa and on the three previous occasions he managed to depart within 3 months as required.
24. Based on the information that the parties provided at the hearing I do not consider that the visa applicant's claimed confusion regarding the effective date of the visa applicant's visitor visa constitutes a factor that was outside of the control of the parties.
It can be seen from the above that while the Tribunal accepted that the Applicant had received a communication from the Department about his last date to enter Australia being 14 April 2016, it also found that information ‘was not the same thing as the date the visa ceases to have effect and that visa holders are expected to be aware of when they should leave the country’. That, in my view, is not a surprising conclusion given the content of the Applicant’s written communication to the Department set out at Court Book 50. The Tribunal, in my view, took the view that the Applicant’s confusion or mistake was not a matter that was outside his control and that rather, the end date of his visa (and his compliance with it) was a matter within his control.
There is one further matter to observe in relation to the complaint by the Applicant about the incorrect advice given by the Department. The complaint such as was advanced before me does not identify any misapplication or misinterpretation of the law. The complaint is really one about a factual finding that was open to the Tribunal, with the Applicant simply disagreeing with the conclusion reached by the Tribunal.
There are then the Applicant’s submissions in connection with ectopic pregnancy and it being a factor beyond the control of the Applicant. Once again, no misapplication or misinterpretation of the law is identified by the Applicant. The Applicant simply disagrees with the facts or the Tribunal’s conclusion. The Applicant made clear in the application for the Visa that he and his partner had overcome the issue of the ectopic pregnancy and proceeded to get married on 10 April 2016. This matter, in my view, does not advance the Applicant’s case under the asserted ground of review.
Turning then to the Tribunal’s assessment of whether there existed ‘compelling reasons’ to waive the Schedule 3 criteria. In respect of this matter, the Tribunal set out its understanding of the relevant legal principles to be considered when assessing ‘compelling reasons’ at paragraph [28] of its reasons. No issue was taken with the discussion of those principles. Subject to one matter which I will come to, nor is any misunderstanding of the law identified. Second, the Tribunal was aware of and considered the submission made by the Applicant to which I have a ready referred and which is set out at Court Book 50. So much may be seen from paragraph [36] of the reasons of the Tribunal. Third, the Tribunal dealt with the question of the pregnancy and any related stress at paragraphs [46]-[47] of the reasons as follows:
46. In the application, the parties mention an ectopic pregnancy that occurred in early 2016. Once again the parties have provided no evidence to establish that this occurred. Nevertheless I accept that the ectopic pregnancy did occur at sometime early in 2016. In the application the visa applicant said that they were thrilled when they learned of the pregnancy and devastated when they found it was an ectopic one. He also says it took them some time to heal before they proceeded with their plans to marry.
47.I sympathise with the parties undergoing this experience but also acknowledge that it is a reasonably commonplace occurrence and also note that the visa applicant implied they had since recovered from the experience; ... we have both overcome that now.
Part of the Applicant’s submission under this ground of review is that the Tribunal considered whether any distress suffered by the Applicant was ‘commonplace’ rather than ‘compelling’. As can be seen from the above, the Tribunal did refer to an ectopic pregnancy as being ‘reasonably commonplace’. Two things may be said about this. First, the Tribunal noted direct evidence from the Applicant that despite the ectopic pregnancy, both the Applicant and his partner have ‘overcome that now’. Secondly, simply because something is ‘common’ does not mean it cannot also be a factor in assessing whether a particular event is ‘compelling’. The Applicant’s submissions do not demonstrate any misunderstanding of the law.
Finally, the Applicant contends the Tribunal considered whether there were ‘compelling reasons for granting the visa’ rather than whether there were compelling reasons for not applying criteria 3004. That submission finds its genesis in paragraph [39] of the Tribunal’s reasons where it stated as follows:
39.In the letter sent to the visa applicant seeking further information the tribunal also sought information and comments from the visa applicant with regard to the consideration of waiving the Schedule 3 requirements.
•What, if any, are the compelling reasons that the tribunal should consider for granting the visa.
The Minister, correctly in my view, conceded that the Tribunal in paragraph [39] of its reasons used the language contained in criteria 3004(d). It was submitted by the Minister, however, that that did not constitute any error when regard is had to the reasons of the Tribunal.
The Tribunal’s discussion of ‘compelling reasons’ begins at paragraph [27] of its reasons. As I have noted earlier, the Applicant does not take issue with the manner in which the Tribunal summarised the law and legal principles relating to ‘compelling reasons’ at paragraph [28] of its reasons. Then, at paragraphs [29]-[30], the Tribunal sets out a number of considerations and notes in paragraph [31] of its reasons the Applicant’s visa history and explanation for not having a substantive visa before, before noting that the Applicant also failed to provide further information when asked to do so by the Tribunal (at [33]-[34]). At paragraphs [36]-[38], the Tribunal set out information provided by the Applicant in support of there being compelling reasons to waive the Schedule 3 criteria. The Tribunal then noted its request of the Applicant to provide any further information as to what ‘compelling reasons’ ‘the ‘Tribunal should consider for granting the Visa’. At [41]-[43] the Tribunal commences its consideration of information provided by the Applicant before noting the following at [44]-[45] of its reasons:
44.In this case, it is also of concern that there is a paucity of information verifying the genuine and continuing nature of the relationship. In particular, the parties have failed to demonstrate the length and nature of their relationship. An indication as to the length of time the parties may have lived together is revealed by the visa application; we just fell in love, and we decided to live together on my birthday. The visa applicant's birthday falls in October, so if they did begin living together at this time they would have lived together for approximately 7 months when the application was lodged.
45. Furthermore, even if better details of the relationship had been provided, such demonstration, does not of itself comprise a compelling reason that powerfully drives the tribunal to a view that the Schedule 3 requirements should be waived. This is because there is an expectation with all partner relationships the legislative criteria describing the nature of the relationship will be met.
Finally, at paragraph [48], the Tribunal concludes that ‘there is absolutely no information before me that powerfully drives me towards view that there are compelling reasons why this application should not be lodged offshore’.
A number of matters become clear when the reasons are reviewed closely. First, while the Tribunal appears to have used the words in criterion 3004(d) in paragraph [39] of its reasons, it was firmly focused on the critical issue before it being whether there were ‘compelling reasons’ to waive the Schedule 3 criteria. Second, read in context, the reference in paragraph [39] of the Tribunal’s reasons is best understood as the Tribunal seeking to examine every part of the Applicant’s case in order to assess whether there are compelling reasons to waive the Schedule 3 criteria. If the Tribunal had formed the view that there were other matters or that the Applicant had a strong case on the merits, that may well have been a factor or factors that could have constituted compelling reasons for waiving the Schedule 3 criteria.
For the above reasons, I do not accept the Applicant’s submission that the Tribunal’s use of the language in paragraph [39] of its reasons had the effect that the Tribunal imposed an additional hurdle or required there to be a strong case on the merits before it came to consider whether to waive the Schedule 3 criteria. I consider that the Tribunal’s reference in paragraph [39] of its reasons, while not accurate, does not disclose any error in the manner in which the Tribunal ultimately went about considering whether or not there were compelling reasons for waiving the Schedule 3 criteria.
For all of the above reasons, I dismiss Ground 1 of the Grounds of Review.
Ground 2
The second ground of review in the Application is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not give the Applicant procedural fairness.
Particulars
The Tribunal made a decision on 22 August 2018 on whether, pursuant to item 820.21 (2)(d)(ii) of Schedule 2 to the Regulations, there were compelling reasons for not applying criterion 3004. This was 15 months after a hearing lasting a total of 31 minutes conducted with the assistance of a Vietnamese interpreter on 10 May 2017. (CB 101) In these circumstances, in breach of section 360 of the Migration Act 1958, the Tribunal did not invite the Applicant to appear before it in 2018 to give evidence and present arguments relating to issues on the review, including both more detail of the situation at the time of his application for the visa and also of circumstances which had developed since the hearing in 2017 such as the “genuine and continuing nature of the relationship " and "the length and nature of the relationship”, identified by the Tribunal as issues on the review where the Tribunal said "it is also of concern that there is a paucity of information". (CB 120, [44]).
Section 360(1) of the Migration Act 1958 (Cth) (‘Act’) requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. Subsection (2) to section 360 sets out the exemptions to that requirement. A failure to comply with section 360 of the Act is a jurisdictional error.
The Applicant contends that section 360 of the Act has not been complied with in the following circumstances. The Tribunal made its decision 15 months after it conducted a hearing which lasted approximately 31 minutes and at which the Applicant appeared. While the Tribunal wrote to the Applicant on 2 August 2018 to invite him to provide further information, the letter was not received by the Applicant. Had the Applicant been called to a hearing he would have been able to provide further information. That is particularly relevant given the Tribunal at [44] of its reasons noted that there was a ‘paucity of information’. In support of this submission, the Applicant cites SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’). The Applicant contends that all the circumstances of the case are such that an invitation to a hearing under section 360 of the Act needed to be issued by the Tribunal.
There are three matters that bear immediately upon the Applicant’s submission. First, he had been invited to a hearing and had attended. There is no requirement in the Act that a second hearing be granted. Second, the Tribunal had not been reconstituted in the time between the hearing and the time of the decision - the constitution of the Tribunal remain the same. Third, the fact that the first hearing was short is not relevant in circumstances where, as in this case, no evidence has been adduced to support a submission that the first hearing was inadequate or failed to deal with any particular issue.
SZBEL, which is relied on by the Applicant, is of limited assistance. It concerns a situation where the Tribunal failed to cover issues that might be determinative of the case before it. Cases such as AEK15 v Minister for Immigration and Border Protection (2016) 244 FCR 328 are also of limited assistance because they deal with whether a second hearing is required in circumstances where a Tribunal has been reconstituted.
Part of the Applicant’s complaint is that he did not receive the letter from the Tribunal dated 2 August 2018. Two things are relevant to that submission. He was, under the Act, deemed to have received that letter notwithstanding his assertion, a point he accepted in oral submissions. As such, he was given the opportunity to put on information. That he did not do so was his own fault. Once the Applicant failed to put on any further information, there was no reason why the Tribunal needed to concern itself with a second hearing. Second, the Tribunal was not seeking to raise any new matter with the Applicant, and the Applicant did not suggest that there was new material he would have raised. His submission was that he was simply seeking to give further information about issues that were already before the Tribunal.
In all of these circumstances, there has not been a breach of section 360 of the Act. This ground of review must be dismissed.
Ground 3
The third ground of review in the Application is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failing to consider relevant considerations.
Particulars
(a)In considering whether there were "factors beyond the applicant's control" such that the Applicant met criterion 3004, the Tribunal did not consider the effect of the Applicant's wife's ectopic pregnancy. The Applicant refers to the matters set out in particulars (d) and (e) of Ground 1 of this application.
(bIn considering whether there were "factors beyond the applicant's control" such that the Applicant met criterion 3004, the Tribunal did not consider the effect of the stress of organising the parties' wedding including the cultural context. The Applicant refers to the matters set out in particular (e) of Ground 1 of this application.
(c)In considering whether there were "compelling circumstances" to waive the requirements of criterion 3004, the Tribunal did not consider all the circumstances of the case, including those mentioned in particulars (a), (b) and (c) of this Ground, and also the previous precise and good record of compliance with dates on visas, the incorrect advice by the Minister's department about the last day he could enter Australia on his last substantive visa, the fact that the Applicant acted in accordance with that advice, and the fact that the Applicant applied for the visa only 6 days after the cessation of his visa. (CB 118, [23])
(d)In considering whether there were "compelling circumstances" to waive the requirements of criterion 3004, the Tribunal did not consider circumstances which had arisen since the Minister's delegate's consideration of the application for the visa, especially the enduring nature of the relationship, still apparently in existence in August 2018, more than 2 years after the application for the visa and after the distress of an ectopic pregnancy. The Applicant refers to the circumstances set out in the particular(e) of Ground 1 and particular(a) of Ground 2 of application.
It is well accepted that the Tribunal must consider each and every relevant consideration and integers of the claims before it: Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (“Peko Wallsend”); SZSZW v Minister for Immigration and Border Protection [2015] FCA 562. Equally, however, it is not necessary for the Tribunal to mention in its reasons every piece of evidence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 50 ALD 609. Further, there may be good reason why a decision does not mention a piece of evidence or submissions: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593.
The Applicant contends that there was a failure to consider relevant matters as follows. First, in dealing with criteria 3004 and whether there were factors beyond the control of the Applicant, the Tribunal only considered the issue of the incorrect advice from the Department. It failed to consider other material such as the ectopic pregnancy and the stress of the wedding. Further, when the Tribunal came to look at the question of ‘compelling reasons’, the Tribunal did not consider the previous compliance by the Applicant with his visa conditions, the incorrect advice given by the Department, the enduring nature of the relationship between the Applicant and his partner and the fact that he was without a substantive visa for a very short period of time.
I have set out earlier in these reasons, an extract from the Applicant’s visa application and an extract from correspondence he sent to the Department in support of his visa application. When those matters are considered, the following becomes apparent. First, the Tribunal was aware of the pregnancy and the wedding and did give some consideration to those matters: see paragraphs [36], [46]-[47] of the reasons. Second, at the time he made the application for the Visa, the Applicant stated that while his wife and he had taken ‘some time to heal’ following the pregnancy, they had ‘overcome that now’. That statement is strongly suggestive of the fact that the pregnancy and any trauma associated with it had ended prior to the Visa application being submitted. Third, in his later correspondence to the Department, the pregnancy and the wedding was noted largely as background context in circumstances where the Applicant was admitting that he made a genuine mistake about the end date of his visa, which led to him not having a substantive visa. When properly construed, the Applicant was not advancing either the pregnancy or the stress as a factor or factors beyond his control (although the Tribunal did expressly consider the pregnancy at [46]-[47]). That being the case, there was no need for the Tribunal to specifically mention either the pregnancy or the wedding when it came to consider factors that were beyond the Applicant’s control, because those matters were not relevant to the issue before it.
Insofar as it is contended that the Applicant’s visa history or the incorrect advice from the Department were not considered by the Tribunal when it came to assessing whether there were ‘compelling reasons’, the following matters are relevant. First, the Applicant’s visa history was a matter of which the Tribunal was aware and which it expressly referred to in its decision: see paragraph [31] of its reasons when it came to consider whether there existed compelling reasons. Second, the Tribunal was aware of the Departmental advice when it came to consider whether there existed compelling reasons: see paragraph [36] of its reasons. Third, the Applicant did not claim that his visa history or the Departmental advice constituted part of the ‘compelling reasons’ to waive the Schedule 3 criteria.
Part of the Applicant’s contentions included a contention that the Tribunal did not take account of the enduring nature of the relationship, a matter that was continuing after the hearing date. It is said that this failure is a failure to consider a relevant matter. That contention, in my view, cannot be sustained. The Applicant was given an opportunity to provide further information or update his circumstances, but failed to respond to the Tribunal’s invitation to do so. No new material was therefore submitted to the Tribunal. In those circumstances, any consideration by the Tribunal of the Applicant’s circumstances after the hearing date would have been speculation on the part of the Tribunal.
When all of the above matters are considered, I am of the view that the Tribunal considered all of the circumstances of the Applicant that were relevant to the questions before it. Accordingly, this ground of review must be dismissed.
Ground 4
The fourth ground of review in the Application is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in having regard to irrelevant considerations
Particulars
The Tribunal erred in having regard to its view of whether an ectopic pregnancy was "reasonably commonplace" in determining whether there were "compelling reasons" for not applying criterion 3004. (CB 121, [46]-[47])
Under this ground, the Applicant submitted that the Tribunal misdirected itself in respect of the question that was before it. The question for the Tribunal was not whether an ectopic pregnancy was commonplace, but whether the Applicant’s circumstances as a whole (including any distress suffered) amounted to ‘compelling reasons’ to waive the Schedule 3 criteria.
There are two difficulties with this submission. First, the discretion given to the Tribunal in determining what constitutes ‘compelling reasons’ is broad. So much may be confirmed from Peko Wallsend at [40]. Second, whether a particular medical condition is common or not common is relevant in my view, to considering whether a person experiencing that condition may have a case that compelling circumstances exist in respect of the waiver of the Schedule 3 criteria.
In my view, the Tribunal has not had regard to irrelevant considerations and did not misdirect itself. This ground must be dismissed.
Ground 5
The fifth ground of review in the Application is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal was unreasonable.
Particulars
(a)The Tribunal was unreasonable in not finding that there were "factors beyond the applicant 's control" such that the Applicant met criterion 3004. The Applicant refers to and repeats the matters set out in particulars (c) to (e) of Ground 1, particular (a) of Ground 2, and particulars (a) and (b) of Ground 3 of this application.
(b)The Tribunal was unreasonable in not finding that there were "compelling circumstances" to waive the requirements of criterion 3004. The Applicant refers to and repeats the matters set out in particulars (c) to (g) of Ground 1, particular (a) of Ground 2, and particulars (c) and (d) of Ground 3. of this application.[sic]
Under this ground of review, the Applicant asserts that the Tribunal acted unreasonably. The principles in respect of whether a decision-maker has acted unreasonably are well-known and I did not understand the parties to be in dispute about those principles.
The substance of the matters said to give rise to the Tribunal acting unreasonably have been touched upon earlier in these reasons. The Applicant properly conceded that there was a degree of overlap between this ground and what was submitted under Ground 1 of the grounds of review.
As part of his submissions, the Applicant contended that it was important to consider the statutory context in which the Tribunal made its decision. It was submitted that any decision made would profoundly affect the Applicant and his wife, and that there was a power to waive the criteria 3004 in ‘compelling circumstances’.
I have considered closely the submissions of the Applicant made in support of particular (a) to this Ground of Review. In my view, there is nothing illogical, or arbitrary, about the decisions or approach of the Tribunal in relation to any of the matters particularised within this ground of review. I have dealt with these matters earlier in these reasons and rely on my earlier reasoning in concluding that the Tribunal did not act unreasonably in respect of these matters. The decision of the Tribunal was one that was open to it. Insofar as the ground extends to a complaint about the failure by the Tribunal to invite the Applicant to appear before it in 2018, I have already earlier in these reasons examined that issue. There was nothing unreasonable about the decision of the Tribunal not to invite the Applicant to a further hearing. The Applicant was given an opportunity to provide further information and he did not do so. There was nothing that compelled the Tribunal to conduct a further hearing and its actions in not doing so do not give rise to any unreasonableness.
Insofar as the Applicant’s submissions in support of particular (b) are concerned, these submissions largely constitute disagreements with the decision of the Tribunal and do not lead to a conclusion that what the Tribunal did was illogical or arbitrary or otherwise unreasonable. I have canvassed the issues contained within the particulars to this ground earlier in these reasons. I rely upon my earlier reasoning to conclude that the Tribunal did not act unreasonably. Insofar as it is submitted that it was unreasonable not to consider further and more recent circumstances, as I have noted, the Applicant was invited to provide further information but did not do so. No unreasonableness is disclosed in the circumstances.
For all of the above reasons, this ground of review must be dismissed.
CONCLUSION
The Applicant has been entirely unsuccessful. The Application must be dismissed. The Minister seeks costs in the amount of $7,853. As the Applicant has been entirely unsuccessful, I award costs to the Minister of $7,853.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 6 October 2021
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