Shani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 927
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 927
File number(s): ADG 26 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 17 October 2022 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal affirming the Delegate's decision to refuse a partner visa - where the applicant did not satisfy schedule 3 criteria - whether there were compelling reasons to waive the schedule 3 criteria - whether the Tribunal made a finding without evidence - court satisfied the Tribunal made a finding without evidence Legislation: Migration Regulations 1994 (Cth) Schedule 3 Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Buchwald v The Minister for Immigration and Border Protection [2016] FCA 101Maxwell v The Minister for Immigration and Border Protection [2016] FCA 47
SZAPC v The Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 995
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 17 October 2022 Place: Darwin Solicitor for the Applicant: Ms Rutherford of Camatta Lempens Solicitor for the Respondents: Mr Retallick for the Australian Government Solicitor ORDERS
ADG 26 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRELE SHANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
17 OCTOBER 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 2 October 2018.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine according to law the application made to it for review of the decision of a delegate of the First Respondent dated 16 November 2015.
3.The First Respondent is to pay the applicant’s costs and disbursements in the amount of $8,528.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Ex TemporeJUDGE YOUNG
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 December 2019 affirming a decision of the Minister’s delegate to refuse the applicant a partner visa. The applicant applied for a partner visa in 2015. Relevantly, the applicant needed to satisfy the criteria in Schedule 3: criteria 3001, 3003, 3004 of the Migration Regulations 1994 (Cth) (“the regulations”). These criteria, in summary, required the applicant to make his application for the visa within 28 days of his arrival in Australia in 2006, unless the Tribunal was satisfied there are compelling reasons for not applying those criteria.
The applicant is an Albanian citizen. He arrived in Australia using a fraudulent Italian passport in 2006. It appears that the applicant lived in Italy for about 10 years from about 1994. He appears to have returned to Albania for temporary periods before coming to Australia in 2006. His various applications for protection visas after arrival were unsuccessful. At some point, the applicant and his sponsor, an Australian citizen, formed a relationship. It does not appear to have been an issue before the Tribunal that the applicant and the sponsor were in a de facto relationship.
The applicant, in seeking the waiver of the relevant requirements in Schedule 3 of the regulations pointed to various matters which he said constituted compelling reasons for their waiver. He pointed to the existence of his relationship with the sponsor and the distress and dislocation that a forced return to Albania would entail. He also said that the fact that he has children in Australia (noting that those children do not spend time with him pursuant to a court order) and the poor health of him and his partner also constitute compelling reasons. The Tribunal was not satisfied any of these matters constituted compelling reasons for the waiver of the relevant criteria.
Relevantly to the application to the Tribunal and the review application before this court, the applicant suffers from paranoid schizophrenia and depression. His condition appears to have been well-managed in Australia and he receives an injection of Halperidol every three weeks from this general practitioner (“GP”). He also takes Zoloft for depression and his treatment is supervised by a psychiatrist. Both the applicant’s GP and psychiatrist provided reports to the Tribunal. The matters concerning his treatment were not in dispute. The applicant’s history in those reports is vaguely characterised but the report from his psychiatrist refers to “admissions to hospitals overseas.” The GP’s report states that the applicant had been “hospitalised for a short period in Italy”.
In his application to the Tribunal and the accompanying submission, the applicant said that he would be “unlikely to be able to access the same treatment in Albania” and that “I do not think I could get the same medical assistance in Albania. There are not as many psychologists and psychiatrists there.” The applicant also provided two expert reports on the standard of mental health care in Albania, one authored by Çomo and another by Winkler. The Çomo report says that, by European standards, there are relatively few psychiatric beds available in Albania and few psychiatrists. For example, the number of psychiatrists in Albania was said to be 1.83 per 100,000 people compared to, for example, 7.81 in Italy, 12.88 in Greece and 4.95 in Bosnia and Herzegovina. The applicant did not say that he would not be able at all to access psychiatric care but merely pointed to the absence of resources for the treatment of mental health.
At paragraph [52] of its reasons, the Tribunal characterised these matters as follows:
While one could reasonably reach the conclusion from the Como and Winkler studies that the standard of treatment for mental illness in Albania is not as high as it is in Australia, they do not satisfy the Tribunal that the regimen of medical treatment and medication required by the applicant and sponsor would not be available to them in Albania. In particular, the Tribunal notes that the applicant was receiving medical treatment in Albania for his illness for some years before he came to Australia.
At paragraph [54] of its reasons, the Tribunal said that it,
…accepts that the required medical treatment for both the applicant and sponsor may not be available as conveniently in Albania as in Australia but there is no evidence before it that the treatment would be unavailable.
8The applicant asserted that the sentence at the end of paragraph 52, “In particular, the ribunal notes that the applicant was receiving medical treatment in Albania for his illness for some years before he came to Australia,” was without any evidence to support it and was simply erroneous. The respondent does not frankly concede that there was no evidence to support that conclusion but points to the vague history in the materials provided by the applicant to the Tribunal and said that it was “not inconsistent” with the Tribunal’s conclusion about the applicant having received medical treatment in Albania.
I am satisfied there is no evidence whatsoever that the applicant was treated for his mental illness for some years in Albania. The Tribunal appears to have made a simple error.
The applicant raises three grounds of appeal. Ground 1 is “The Tribunal misunderstood the evidence provided by the applicant, or failed to give the applicant a meaningful opportunity to give evidence and present arguments on an issue which was dispositive to the review.” The applicant provided particulars in relation to this ground which essentially said there was no evidence to support the Tribunal’s conclusion that the applicant had received mental health treatment in Albania. Ground 2 is “The decision of the Tribunal was unreasonable and or illogical and or lacked an intelligible justification.” This ground relied on essentially the same particulars as ground 1. Ground 3 claims the error referred to in ground 1 and 2 was material.
I do not propose to consider ground 3 as a ground of review as it is merely a claim of materiality which I will consider separately.
I am not satisfied ground 1, to the extent that the applicant says the Tribunal misconstrued his claim, is made out. It appears to me that the Tribunal understood the relevant claim as advanced: that there is a shortage of facilities and personnel in Albania to treat the applicant’s mental illness and, given his serious mental illness, that the prospect of that being untreated constituted a compelling reason to waive the criteria. In my view, the Tribunal understood the claim as advanced and responded to it. Similarly, I am not satisfied that the Tribunal failed to give the applicant notice of a dispositive issue. The applicant himself raised the issue of mental illness and he knew he must satisfy the Tribunal that the matters he advanced constituted compelling reasons for the waiver of the relevant criteria.
Ground 2, while relying on the same error, characterises the error as one of irrationality or illogicality constituting jurisdictional error. In submissions there was some discussion about whether the no evidence argument was relevant only to a jurisdictional fact, that is, the non-existence of which was a precondition to the exercise of a statutory power. See, for example, Buchwald v The Minister for Immigration and Border Protection [2016] FCA 101. I accept Mr Retallick’s submission that the error contended for by the applicant is not an error going to a jurisdictional fact. However, the applicant, in ground 2, characterises the error as one of irrationality for lack of an intelligible justification. In Maxwell v The Minister for Immigration and Border Protection [2016] FCA 47, Perry J discusses a case relied on by the Minister. Perry J at paragraph [54] says as follows:
Nonetheless, I do not consider that the jurisdictional error alleged by ground 5 is established. It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. As I explain below, there was some evidence to support the finding here. Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]).
Where a crucial finding to a decision has been made without any evidence, the question will arise as to whether, to that extent, the decision is irrational or illogical: SZAPC v The Minister [2005] FCA 995. In SZAPC Madgwick J, at paragraph 57, points out that:
1.A ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact.
2.Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously – not ‘according to humour’, but according to law.
3.It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.
In my view, it can be taken from those passages that where there is:
(1)a finding made without evidence; and
(2)the finding is crucial or critical to the decision,
(3)a question arises as to the extent that the decision is thus rendered irrational or illogical, which may constitute jurisdictional error.
I am satisfied that the finding that the applicant received mental health treatment in Albania was made without evidence. Whether that finding is crucial or critical to the outcome is more difficult.
The finding that the standard of mental health care in Albania was not as high as in Australia was clearly open to the Tribunal. However, while the applicant did not expressly say he would not be able to access such mental health care in Albania, his material indicated that it may be difficult and the degree of difficulty, while not further explored, was such as to raise a question about whether he could reasonably expect to receive the appropriate treatment for his serious illness in Albania.
The Tribunal, by wrongly finding that there was evidence that the applicant had previously received mental health treatment in Albania, made any further consideration of that question unnecessary. If he had received treatment in the past in Albania, by inference, it would appear likely that such treatment would be available in future. That appears to be the significance of the final sentence of paragraph [52] of the Tribunal’s reasons, that is, he had received such treatment in the past and it would therefore appear likely that he would be able to receive such treatment in the future.
If the Tribunal had simply referred to the material and stopped at the penultimate sentence of paragraph [52], little criticism could be made of that conclusion. However, the inclusion of the ultimate sentence suggests that it was a necessary step in the Tribunal’s reasoning, that is, that there was no evidence that mental health treatment was unavailable in Albania to the applicant should he return; and further, if it was available in the past, it would likely be available in the future. There was no support for that last step in the evidence and there was, therefore, no intelligible justification for that step. In my view, the error was material in that the error could have deprived the applicant of a different and successful outcome.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 8 November 2022
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