SANGARE v Minister for Immigration
[2019] FCCA 1193
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANGARE v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1193 |
| Catchwords: MIGRATION – Partner visa – whether Tribunal failed to consider relevant material – “compelling reasons” – whether decision unreasonable – whether denial of procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359A(4)(b) and 360. Migration Regulations 1994 (Cth), cls.820.211, 820.211(2)(d), 820.211(2)(d)(i), 820.211(2)(d)(ii) and 820.226 of Part 820 of Schedule 2; cls.3001, 3003 and 3004 of Schedule 3; and PIC 4020(1), PIC 4020(2), PIC 4020(4) and PIC 4021. |
| Cases cited: Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 Waensila v Minister for Immigration and Border Protection [2015] FCCA 2276 |
| Applicant: | SOULEYMANE SANGARE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 1 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| The Applicant: | In person, via video link in Darwin |
| Counsel for the Respondents: | Mr Reilly, via video link in Sydney |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The applicant do pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNG 1 of 2017
| SOULEYMANE SANGARE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 16 January 2017. That decision affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘the visa’).
The applicant was self-represented. On 12 May 2017, he filed an Amended Application. The Application proceeded on four amended grounds. For the sake of clarity, I will refer to those grounds with the numbering used in the Amended Application. The grounds are as follows:
“1. Jurisdictional error – correct construction of provisions relating to Partner (temporary) (Class UK) – appeal on whether the appellant met relevant criteria for the grant of a visa – whether the Administrative Appeals Tribunal, in its decision made on 16 January 2017 affirming the decision not to grant the appellant a Partner (Temporary) (Class UK) visa, made a jurisdictional error in excluding from its consideration of “compelling reason” for the purposes of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) circumstances which constitute “compelling reasons” for not applying Schedule 3 criteria 3001, 3003 and 3004 which existed at the time of the application.
5. The decision of the Administrative Appeals Tribunal (the Tribunal) was affected by jurisdictional error in that the decision of the Tribunal failed to take into account relevant material and/or alternatively the decision of the Tribunal was unreasonable in that it failed to take into account that the Applicant were already in a long-standing relationship with the sponsor when the Tribunal was exercising its discretion contained in Clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulation 1994 (Cth).
6. Whether the Administrative Appeals Tribunal decision under the Migration Act 1958 made on 16 January 2016 was unreasonable where, the Tribunal found that the Applicant did not meet the Public Interest Criteria.
8. Whether the Administrative Appeals Tribunal decision under the Migration Act 1958 made on 16 January 2016 denied the Applicant procedural fairness – whether the Tribunal should have confined itself to the issues considered by the delegate of the Minister for Immigration and Border Protection”
(reproduced verbatim)
The applicant relied on his affidavit of 25 January 2017 filed at the time of the original Application and the materials in the Court Book. He also relies on his Affidavit of 5 September 2017 which was used to put on the audio recording of the Tribunal hearing.[1] He filed written submissions on 25 August 2017.
[1] Exhibit A1, audio recording of Tribunal hearing.
The first respondent relies on the materials in the Court Book and written submissions filed on 3 August 2017 and 15 May 2018.
Background
The applicant is a male and a national of Guinea born in 1972. He arrived in Australia in May 2011 using the name and passport of his brother. In June 2011, he applied for a protection visa. The Refugee Review Tribunal (‘RRT’) refused that application in October 2012. The applicant sought judicial review in this Court which was refused on 16 October 2013.[2] He appealed that decision to the Full Court of the Federal Court which dismissed his appeal on 1 May 2014.[3] He lodged an appeal to the High Court which upheld the decision of the Full Court of the Federal Court on 11 September 2014.[4] He then lodged an application for a Temporary Work (Subclass 457) visa on 2 October 2014. That application was found to be invalid.[5] An application for Ministerial intervention of the RRT decision was refused on 26 June 2015.[6] It appears that he also applied on 17 December 2014 for Ministerial intervention relating to the invalidity of the application for the temporary work visa but was advised on 14 June 2015 that the outcome of his request was that it was “not considered”.[7]
[2] Court Book (‘CB’) p 271.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] CB pp 77 to 78.
[7] CB p 271.
The applicant filed this Application for a partner visa on 14 August 2015 on the basis of his relationship with his sponsor, Ms Isatu Obed Fornah, to whom he had become married in 2013. A delegate of the Minister refused that application on 11 December 2015. He applied to the Tribunal for a review of that decision on 23 December 2015 and appeared before the Tribunal to give evidence and present arguments on 16 January 2017. The Tribunal affirmed the decision of the delegate.
The Tribunal’s decision
The Tribunal summarised the relevant law in a manner that was unexceptionable.[8] It was common ground that at the time of his application, the applicant was not the holder of a substantive visa. Accordingly, the Tribunal identified the relevant issues as being firstly, whether the applicant met the requirements of cl.820.211(2)(d) of Part 820 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). It found that he could not meet cl.820.211(2)(d)(i) of Part 820 because he did not enter this country on a diplomatic visa, or a special purpose visa.[9] It went on to consider whether he could satisfy cl.820.211(2)(d)(ii), namely whether he satisfied each of the Schedule 3 criteria 3001, 3003 and 3004, and if not, whether it could be satisfied that there were compelling reasons for not applying those criteria.[10] The applicant could not satisfy criteria 3001 because his application had not been lodged within 28 days. The Tribunal gave detailed consideration as to whether the Schedule 3 criteria could be met.[11] I can find no error in the approach it took to applying criteria 3001 to the evidence before it.
[8] CB pp 373 to 374.
[9] CB p 373 at para [7].
[10] Ibid.
[11] CB p 374 at para [11]-[15].
The second issue identified by the Tribunal related to bogus documents. It was necessary for the applicant to satisfy cl.820.226 of Schedule 2 in order to qualify for the visa. This required him to satisfy both Public Interest Criteria (‘PIC’) 4020 and 4021. Relevantly to the facts of this matter, the Tribunal focused on PIC 4020(1) which requires the Minister to be satisfied that there is no evidence before the Minister that the applicant has given, or caused to be given to the Minister, an officer, the Tribunal, relevant assessing authority, or a medical officer of the Commonwealth, a bogus document, or information that is false or misleading in a material particular, in relation to an application for the visa, or a visa held in the 12 months prior to the application.[12] The Tribunal correctly identified that PIC 4020(1) could be waived if the Minister was satisfied of the matters identified in PIC 4020(4).[13]
[12] Schedule 4, cl.4020(1)(a) and (b).
[13] CB p 374 at para [10].
The Tribunal gave detailed consideration as to whether there were compelling reasons not to apply the Schedule 3 criteria.[14] Having considered the applicant’s claims and circumstances individually and cumulatively, it was not satisfied that there were compelling reasons for waiving the Schedule 3 criteria and for that reason, it was not satisfied that he could meet cl.820.211(2)(d)(ii).
[14] CB pp 375 to 377.
The Tribunal gave close consideration to the question of whether the applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular.[15] It found that he had in his 47SP Application Form deliberately and falsely stated that he had not previously been married or in a de facto relationship. The applicant also provided a copy of his Australian marriage certificate, dated 17 April 2013, which stated that he had never previously been married. The applicant admitted in his response to the Tribunal’s s.359A letter that he had been married twice previously.[16] The Tribunal found that the information in his visa application as to not previously being married was false and misleading in a material particular[17] and that he had given or caused that information to be given to the Minister or an officer. It found that the marriage certificate was a bogus document.[18] In his evidence, the applicant also admitted that his sponsor had previously been in a de facto relationship for about 4 years and had a child from that relationship, whereas his application for the visa stated that she had not previously been in a de facto relationship. The Tribunal found that he had provided false and misleading information about the sponsor’s previous relationships in the visa application.[19]
[15] CB pp 378 to 379 at para [35] – [46].
[16] CB p 378.
[17] CB p 379 at para [42].
[18] Ibid at para [45].
[19] CB p 379 at para [41].
For these reasons, the Tribunal found that it could not satisfy PIC 4020(1). The Tribunal considered at length whether PIC 4020(1) should be waived pursuant to PIC 4020(4). Having done so, it made the following findings:
“54. Having considered the entirety of the applicant’s circumstances, the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justify the granting of the visa. The Tribunal finds that PIC 4020(4) is met. The Tribunal decides that the requirements of PIC 4020(1) should not be waived. The Tribunal finds that the applicant does not meet PIC 4020 for the purpose of 820.226.
55. For the same reasons, the Tribunal does not consider the matters addressed above constitute compelling reasons for a waiver of Item 3001.”[20]
(emphasis added)
[20] CB p 381.
I will deal with the finding as to PIC 4020(4) later in these reasons.
Having found that the applicant could not satisfy two independent criteria for the visa, it affirmed the delegate’s decision.
Submissions
Ground one
The applicant made both written and oral submissions. The first ground alleges jurisdictional error in failing to consider (“excluded from its consideration”) relevant circumstances of the applicant which he asserts amounted to “compelling reasons” when considering whether compelling reasons existed for the purpose of cl.820.211(2)(d)(ii). The effect of the applicant’s written submissions is to complain about the failure of the Tribunal to find that an Ebola outbreak in Guinea at or about the time of his application for a partner visa amounted to a compelling reason for not applying criteria 3001. He referred the Court to Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs[21] and Waensila v Minister for Immigration and Border Protection[22] (it should be noted that both of those decisions were overruled in the Full Court’s decision in Waensila v Minister for Immigration and Border Protection[23]) to support his submission that the compelling reasons for not applying the Schedule 3 criteria must only be considered in relation to the time at which the application is made. In his submission, the Tribunal ignored the fact of the Ebola outbreak. He submits that the Tribunal also ignored the other material submitted by him to establish compelling circumstances, namely: the impact on his wife if the visa were not to be granted; the impact on his step-son if the visa was not to be granted; and, a denial of justice to him if by virtue of being removed from this country he were unable to continue to pursue an industrial claim that he had before this Court at the time of the application.
[21] [2002] FCA 438.
[22] [2015] FCCA 2276.
[23] [2016] FCAFC 32.
The applicant also referred the Court to certain passages in the decision of the Full Court on Appeal in Waensila’s case:[24]
[24] Ibid at paras [52] & [60].
“The heading to cl 820.21 makes clear that the time at which the criterion specified relevantly in cl 820.211(1)(b) has to be satisfied is at the time of the application. That does not determine, however, that the waiver power in cl 820.211(2)(d)(ii) is also limited to events which exist as at that time. One reason why that is so is that, contrary to the Minister’s submission, I consider that the waiver power is not itself a criterion. Rather, it is properly characterised as a power to waive or dispense with what otherwise is a requirement which forms part of the criterion in cl 820.211(1)(b). In my view, the heading does not have the effect of confining the decision-maker’s consideration of whether there are compelling reasons which warrant the exercise of the waiver power to circumstances which only exist as at the time of application.
…
For completeness, I would also add that I reject the Minister’s reliance upon the fact that cl 820.221(1)(b) imposes a criterion which requires an applicant such as the appellant to continue to meet the requirements of, relevantly, cl 820.211(2), as at the time of decision. This submission proceeds on a wrong premise, namely that the waiver power itself is to be viewed as a criterion. For the reasons given above I consider that to be an incorrect characterisation of the nature of that power.”
For reasons that I will explain later, those passages do not assist the applicant. He submitted that the Tribunal failed to take into account “compelling reasons” that had arisen since the application but he did not identify what those were.
The first respondent submitted that this ground was nothing more than an attempt at an impermissible merits review, that the Tribunal did take all relevant matters into consideration, and that it expressly referred to the Full Court authority in Waensila.
Ground five
The applicant submitted that he had established that he continued to be the spouse of the sponsor both at the time of the application and at the hearing date. He submits that the Tribunal ignored the evidence given by him and his wife. He submitted that it failed to consider his fears for his safety and in placing reliance on findings relating to his failed attempt to obtain a protection visa, the Tribunal fell into error. This was an error because he submitted that he could have obtained further information for the Tribunal about the risk to his safety and that the Tribunal should have requested that information and assessed it.
The first respondent submits that the applicant’s contentions with respect to ground five are no more than an emphatic disagreement with the findings of the Tribunal. It did consider the fact of his relationship with his wife. Rather than simply adopting the findings of an earlier Tribunal as to the protection visa, the Tribunal took those findings into account and satisfied itself that the applicant would not be at risk.[25]
Ground six
[25] CB p 377 at para [30].
The applicant submitted that it was unreasonable of the Tribunal not to find compelling or compassionate circumstances to waive the PIC 4020 requirement in light of his qualifications as an engineer and construction project manager; that he had held skilled work in the Northern Territory; he had lived in Australia for six years and was well settled here; and that it was not in the public interest to keep out a person of his skills and experience.
There was a second aspect to the applicant’s written submissions which was that the Tribunal had actually satisfied itself that it was appropriate to waive the requirements of PIC 4020. That is because it said: “The Tribunal finds that PIC 4020(4) is met.” [26] The applicant asks rhetorically how, in those circumstances could the Tribunal fail to waive PIC 4020(1)?
[26] CB p 381 at [54].
I referred to that passage earlier in these reasons and as I noted earlier, I will discuss the passage in my consideration of submissions.
The first respondent submitted that this ground amounted to no more than an attempt at a merits review simply arguing with the Tribunal’s reasons.
Ground eight
It is difficult to reconcile the majority of the applicant’s written submissions on this ground with the wording of the ground itself. That was not altered greatly by oral submissions. The applicant submits that in the event that the Tribunal did not find compelling reasons for not applying the Schedule 3 criteria (which was the case) then he would be required to return to Guinea to lodge a further application for a partner visa. There was, he submitted, no logic or policy to such a requirement. On the basis of the ground as pleaded, the applicant appears to assert that such an outcome causes him procedural unfairness.
This argument is clearly misconceived. The Tribunal was not requiring him to do anything, or travel anywhere. It simply made a finding for reasons it clearly expressed that he did not satisfy the criteria in cl.820.211. What the applicant did in response to that and whether he made any further applications for visas of any description was a matter for him.
In support of this ground, the applicant once again referred the Court paragraph 60 of the decision of the Full Court in Waensila’s case.[27]
[27] Op cit.
It is difficult to see how that submission related to this ground. It appeared to be a restatement of a submission relevant to ground one. Finally, the applicant submits that the Tribunal erred in going beyond the issues found by the delegate to be dispositive. In other words, the delegate found that there were compelling reasons to waive the Schedule 3 criteria but refused his application on the basis that it did not accept that he was the spouse of his sponsor, whereas the Tribunal proceeded to find against him on another basis, namely the lack of compelling reasons.
The first respondent acknowledged that the Tribunal found differently to the delegate on the question of whether the sponsor was actually the spouse of the applicant. For that reason, it was bound to consider whether there were compelling reasons within cl.820.211(2)(d) as that was a criterion for the visa.
The first respondent quite properly made the submission that the applicant had not filed a copy of the transcript of the Tribunal hearing and for that reason could not establish that the Tribunal had not complied with its duty pursuant to s.360 of the Act to conduct a hearing.
In the circumstances, given the applicant was unrepresented, I permitted him to file a copy of the audio of the Tribunal hearing after the date on which submissions were heard in this matter. It is that recording which is referred to in the applicant’s affidavit filed on 5 September 2017 and the respondent’s submission of 15 May 2018. I have listened to the recording and it has been marked as Exhibit A1.
As the first respondent noted, the applicant submitted at the hearing that the Tribunal had not explained to him the requirement that he establish compelling reasons for not applying the Schedule 3 criteria. The first respondent submits that the recording of the hearing between 5:50 and 17:19 and 1:12:52 and 1:17:58 clearly show that the Tribunal explained the need for the applicant to establish compelling reasons for not applying those criteria.
Consideration
Ground one
With respect to ground one, it should be noted that the term ‘compelling reasons’ in cl.820.211(2)(d)(ii) is not defined.
It has been held that the term means reasons sufficiently convincing to move the decision-maker to exercise discretion to waive the requisite criteria and[28] “sufficiently powerful” to move a decision-maker to make a positive finding to waive the criteria.[29]
[28] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, citing Paduano v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 211 at [39].
[29] Babicci v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 77.
Further, it is clear from the decision of the Full Court in Waensila[30] that in considering whether compelling circumstances exist, the decision-maker can take into account circumstances that have occurred after the time which the application was made.
[30] Op cit.
The Tribunal’s finding as to the Ebola outbreak was as follows:
“The applicant told the Tribunal when he made the present application, there was an Ebola outbreak and he could not travel to Guinea. He could not get the visa to Guinea. The Tribunal is mindful that the Ebola outbreak has been contained and is no longer an issue. The Tribunal does not consider that the outbreak of the Ebola virus, which has now been contained and which is no longer a threat, constitutes a compelling reason for the waiver.”[31]
[31] CB p 376 at para [28].
The Tribunal clearly considered the applicant’s evidence as to the Ebola virus outbreak. It did not reject the contention that there was an outbreak at the time the application was made, indeed it appears to have accepted that fact. Further, it acknowledged the decision of the Full Court in Waensila[32] and the conclusion it reached is consistent with that decision. In my view, the applicant’s reliance on paragraph 60 of the Full Court judgment in Waensila’s case is misconceived. The effect of his submissions is that because there was an Ebola outbreak at the time of his application, which was of itself a compelling reason at that time to waive compliance with the Schedule 3 criteria, and it remains so at the time of the decision even though the risk from Ebola had dissipated. That ignores the fact that as Griffith J in Waensila’s case found, the waiver power itself (to which the Ebola outbreak was relevant) is not one of the criteria. It also ignores the fact that the relevant criteria are those stipulated in Schedule 3. The existence of an Ebola outbreak in Guinea at the time of the visa application was not a Schedule 3 criterion. Nor was it a criterion pursuant to cl.820.211. The effect of the judgment of Griffith J is that the actual criteria stipulated in cl.820.211 must be satisfied at the time of the application and an application will not fail simply because one or more of the criteria does not continue to be met at the time of the decision. The evidence of the Ebola outbreak was relevant not to the establishment of a criterion, but rather whether compelling reasons existed either at the time of application or at any time up to the making of the decision. With an issue as potentially transient as the outbreak of a virus, the Tribunal was not constrained from considering and placing weight on the fact that the risk appeared to have passed. Indeed, that was a circumstance which had occurred since the time of the application that was directly relevant to the question of whether there were compelling circumstances.
[32] CB p 375 at para [18].
Further, the Tribunal gave close consideration to the other matters raised by the applicant that he submitted would amount either individually or collectively to compelling circumstances. I am not satisfied that the applicant has demonstrated jurisdictional error with respect to this ground and I dismiss it.
Ground five
Contrary to the contention of the applicant, the Tribunal did not fail to take into account that the applicant was married to the sponsor and had been since 2013. It did not make a finding that the sponsor was not his spouse. That matter was clearly the subject of detailed consideration and an “active intellectual process”[33] as is demonstrated in the Tribunal’s decision record.[34]
[33] MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510.
[34] CB p 375 at paras [19]-[22].
That consideration included questions of the claimed emotional and financial support provided by the applicant to both the sponsor and her son. In reality, the applicant is not complaining about a failure of the Tribunal to give consideration to a relevant matter, he is complaining about the fact that the Tribunal did not regard the fact that he was married to the sponsor to be determinative of whether ‘compelling reasons’ existed. The consideration of those matters was detailed and provided an intelligible justification for the finding. It was open to the Tribunal and not unreasonable. That is clearly a merits based argument and cannot succeed.
Whilst it is not encompassed specifically by this ground, the applicant’s outline of submissions with respect to it includes a complaint that the Tribunal did not accept that he would be in danger if he were to be returned to Guinea. That submission, which probably applies more directly to ground eight, can be dealt with briefly. Firstly, there was no failure on the part of the Tribunal to consider this claim. It clearly did so and it rejected his evidence.[35] Further, the Tribunal was entitled to take into account that his claims for protection had not been accepted by the RRT. The Tribunal made its own finding that it rejected the applicant’s evidence on this matter. It did not simply refer to the RRT decision and conclude that it was foreclosed from consideration of the matter. The fact was, as the Tribunal noted, there was very little evidence before it of his claimed activities and he provided no documentary evidence to support this claim.[36] Thirdly, the Tribunal was not required to conduct its own investigation into this aspect of the applicant’s claims simply because he had raised it and his assertion that he told the Tribunal that he could obtain evidence to support the claim.
[35] CB p 377 at para [29].
[36] CB p 377 at para [29].
It is well-established that there is no positive duty imposed upon the Tribunal to make enquiries or gather opinions or investigate claims when weighing up the material an applicant has presented to it.[37] In oral submissions, the applicant said that he did not have documentation supporting his claims to fear for his safety in Guinea because he understood that the issue was the delegate’s finding with respect to the genuineness of his relationship with the sponsor. That ignores the fact that I discuss in relation to ground eight that the applicant was always on notice that his ability to demonstrate compelling reasons for waiving the Schedule 3 criteria was crucial. In neither his written submissions to the delegate, or the Tribunal, did he mention a threat to his safety should he be required to return to Guinea.[38] He could easily have done so. There was no procedural unfairness caused by a failure of the Tribunal to investigate his claims to fear harm in Guinea.
[37] SZMJM v Minster for Immigration and Citizenship [2010] FCA 309; Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; Minister for Immigration, Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
[38] CB pp 248 to 249 and pp 289 to 294.
It was for the applicant to present his own case and the duty to provide evidence to support any of his claims rested with him. The possible exception to that principle is where there has been a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained.[39] Such failure may amount to a constructive failure to exercise jurisdiction. That is not the case here. I dismiss ground five.
Ground six
[39] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
There is no substance to this ground. It is in reality a complaint as to the merits of the decision. The applicant’s written submissions demonstrate that he is in emphatic disagreement with the decision. That is insufficient. As the Full Court held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs:[40]
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[40] [2004] FCAFC 10 at [10].
Some basic principles with respect to the concept of legal unreasonableness should be noted. The question of unreasonableness has to be determined by reference to the legal framework within which the relevant decision has been made.[41] The statutory context must be considered to ascertain the scope of ‘decisional freedom’ vested in the decision maker.[42] Referring the other authorities, Gaegler J in Li’s case observed:
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[43]
(citations omitted)
[41] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[42] Ibid at [28]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7].
[43] Li’s case, op cit at para [105].
If the Tribunal decision was open on the evidence and within the scope of the Tribunal’s decisional freedom under the Act, legal unreasonableness will not be demonstrated. As such, legal unreasonableness is fact dependant and the reasons are the focal point. Where the reasons disclose a justification for the exercise of a statutory power, only rarely will a Court find that the exercise of a discretionary power is unreasonable.[44] That will be the case even if a Court, on judicial review, is of the view that another decision maker might reasonably have come to a different conclusion. It is beyond question that a Court cannot simply substitute its own view of the evidence for that of the Tribunal.
[44] Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408 at para [84].
I turn to the applicant’s submission that unreasonableness is demonstrated by the failure of the Tribunal to find that relevant compassionate or compelling circumstances existed in light of its apparently positive finding that “the Tribunal finds that PIC 4020(4) is met”.[45] PIC 4020(4) of Schedule 4 to the Regulations states as follows:
[45] CB p 381 at para [54].
“(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.”
The applicant is relying on what must be a typographical error in the Tribunal’s decision record. A fair reading of the Tribunal’s consideration of whether PIC 4020(1) or (2) should be waived permits of no other conclusion.[46] That can be seen in the first and last sentences of paragraph 54. What the Tribunal clearly intended to say was that it found that PIC 4020(4) had not been met.
[46] CB pp 379 to 381 at paras [47]-[54].
The Tribunal closely considered the evidence in light of the terms of PIC 4020(4).[47] It noted that some of the relevant matters had already been considered in relation to the waiver of the Schedule 3 criteria[48] and as such its consideration of those matters in that context[49] were also applicable to the PIC 4020(4) discretion. It did not accept that the sponsor needed the applicant’s financial support, noting that the applicant’s evidence was that he was not employed and that the sponsor had worked in the past. The Tribunal was not satisfied that the sponsor’s family would be unable or unwilling to provide financial support to her. It was not satisfied that the applicant’s emotional support of the sponsor would be rendered nugatory if they were to reside in different countries. It was not satisfied of the closeness of the applicant to the sponsor’s son, noting that at the time of the hearing, the child had been living in Perth with a distant relative for 6 months without any apparent adverse effect due to separation from the applicant. It also noted that if the relationship was genuine, the applicant would be able to apply again for a partner visa and so any separation from the child might only be temporary and that contact could be maintained by electronic means. The Tribunal was simply not satisfied on the evidence that there would be an adverse effect on the child due to separation from the sponsor.
[47] CB pp 379 to 381.
[48] CB p 380 at para [50].
[49] CB pp 375 to 376.
The Tribunal also gave detailed consideration to the matters advanced by the applicant that he asserted amounted to compelling circumstances affecting the interests of Australia.[50] It also considered the applicant’s claims cumulatively.
[50] CB p 381 at para [53].
The reasoning of the Tribunal was detailed and intelligible. It could not be said of its decision on the PIC 4020(4) discretion that it was, “so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”.[51]
[51] SZVFW, op cit, at para [83].
The conclusion that the Public Interest Criteria should not be waived was open to the Tribunal. It was clearly within the range of decisional freedom vested in the Tribunal by the Act. It was not unreasonable.
I dismiss this ground.
Ground eight
As a general proposition, an applicant in a merits review before the Tribunal is entitled to assume that the relevant issues for the purpose of the review are those found dispositive by the delegate. The applicant will of course have been placed on notice of the issues by virtue of the written reasons of the delegate. That does not preclude the Tribunal from determining the application on additional or different grounds to the delegate. The obligation on the Tribunal is to conduct a review of the decision of the delegate. It is a hearing de novo. The invitation pursuant to s.360 of the Act to give evidence and present arguments relating to the issues arising in relation to the decision under review must be a real and meaningful invitation.[52] It is axiomatic that in order for it to be so an applicant must have notice of any information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The letter of invitation to attend the hearing sent to the applicant[53] put him on notice that the Tribunal might wish to hear evidence from the sponsor.
[52] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151.
[53] CB p 361.
The applicant was on notice of the delegate’s conclusion that the sponsor was not his spouse. By virtue of his application, he sought to establish by means of a merits review that she was. In the event that he did so, it was still necessary for him to satisfy the criteria in cl.820.211 to meet the requirements for the grant of a visa.
The requirements for giving information in a written invitation to attend before the Tribunal are set out in s.359A which provides as follows:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
The applicant was aware of the fact that he was not the holder of a substantive visa at the time of his application.[54] That much was apparent from his migration history which was part of the information he gave for the purpose of the application for review and no written notice had to be given to him of that fact.[55] As such, he had to meet the Schedule 3 criteria. In order to meet criterion 3001, his application must have been lodged within 28 days of holding a substantive visa. It was apparent from the evidence he gave in the review that his last substantive visa had expired in August 2011.[56] As he could not satisfy criterion 3001 it was necessary by virtue of cl.820.211(2)(d) for him to satisfy the Tribunal that there were compelling reasons for not applying the Schedule 3 criteria. The audio recording of the Tribunal hearing demonstrates that this was explained to him at some length and he was given an opportunity to comment on it.[57] Further, the applicant had been on notice prior to the decision of the delegate that by virtue of not being the holder of a substantive visa, it was necessary for him to satisfy the additional Schedule 3 criteria. It also put him on notice that he could not satisfy criterion 3001, but that the Minister could waive the criteria if there were compelling reasons for not applying them.[58] He was invited to put forward any compelling reasons for waiving the Schedule 3 criteria and to provide documents to support his claims.[59] The applicant was always on notice that, in his circumstances, it would be necessary for him to demonstrate compelling reasons to waive the Schedule 3 criteria. He addressed the question in his written submissions to the Tribunal.[60]
[54] CB p 373 at para [7].
[55] Section 359A(4)(b).
[56] CB p 374 at para [12].
[57] Exhibit A1, Disc 1 at 5:50 – 17:19.
[58] CB p 241.
[59] CP p 242.
[60] CB pp 289 to 294.
I am not satisfied that the Tribunal failed to explain to the applicant the need to demonstrate compelling reasons for not applying the Schedule 3 criteria or that it failed to give him a meaningful opportunity to demonstrate such compelling reasons. Nor was the operation of the Act or the Regulations ‘information’ of a type that the Tribunal was required to disclose to him.
A similar consideration arises with respect to PIC 4020. By virtue of cl.820.226 it was necessary that he satisfy that criterion. He could only do so if there was no evidence that he had given or caused to be given a bogus document or information that was false or misleading in a material particular. The information which lead to the finding of a bogus document and false and misleading information was comprised of documents and information he had given for the purpose of the application for review.[61] He knew about those documents and information. His evidence explaining the apparently bogus nature of that material was rejected by the Tribunal. The operation of criterion 4020 was not ‘information’ of a type of which the Tribunal was required to put him on notice. Further, the Tribunal explained to him the need to demonstrate the relevant compassionate or compelling circumstances in order for it to exercise the discretion to waive PIC 4020(1) or (2). It gave him an opportunity to comment on those matters and demonstrate the relevant circumstances.[62] I am not satisfied that the applicant has established jurisdictional error with respect to this ground and I dismiss it.
[61] Section 359A(4)(b).
[62] Exhibit A1, Disc 1 at 1:12:52 – 1:17:58.
It was necessary for the applicant to demonstrate jurisdictional error with respect to both cl.820.211(2)(d)(ii) and cl.820.226 in order for the decision to be set aside.[63] He has not done so.
[63] Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82.
Accordingly I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 9 May 2019
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