Singh v MIBP
[2017] FCCA 2461
•12 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2461 |
| Catchwords: MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision made by delegate of Minister for Immigration and Border Protection not to grant applicant a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa – whether Tribunal construed Public Interest Criterion (PIC) 4020(4)(b) as excluding from circumstances that may be considered to be compassionate or compelling the nature and extent of emotional bonds that may exist between parties to a genuine partner relationship – whether by so doing the Tribunal misconstrued PIC4020(4)(b) and thus made a jurisdictional error – Tribunal misconstrued PIC4020(4)(b) and consequently made jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.359A Migration Regulations 1994 (Cth), Sch.2, cl.820.226, Sch.4, items 4020, 4021 |
| Cases cited: Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 New South Wales v Ibbett [2006] HCA 57 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 |
| Applicant: | DALJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2327 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | JurisAustralia Lawyers |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
(amended pursuant to r.16.05(2)(f) and r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth))
The decision of the second respondent made on 29 July 2015 affirming the decision of the delegate of the first respondent made on 30 May 2014 not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa is quashed.
The second respondent determine according to law the applicant’s application for review of the decision of the delegate of the first respondent made on 30 May 2014 not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2327 of 2015
| DALJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue on this application for judicial review is whether the second respondent (Tribunal) misconstrued or misapplied the words “compelling or compassionate circumstances affecting the interests of an Australia citizen” (Words in Question) in Schedule 4, Item 4020(4)(b), of the Migration Regulations 1994 (Cth) (Regulations). The Words in Question are part of a provision that permits the first respondent (Minister) to waive the criteria for the granting of visas specified by items 4020(1) and 4020(2) of Schedule 4 to the Regulations.
I begin by describing the circumstances out of which this issue of construction arises.
Background
On 16 January 2013 the applicant, a citizen of India, applied for a combined Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa (Partner visa). He claimed he was in a spousal relationship with his sponsoring partner who is an Australian citizen (Sponsor).
To have been entitled to a Partner visa, the applicant had to satisfy, among other things, the criterion specified in cl.820.226 of Schedule 2 to the Regulations. That required the applicant satisfy “public interest criteria 4020 and 4021”. That is a reference to items 4020 and 4021 of Schedule 4 to the Regulations. Relevant to the case before me is item 4020 (PIC4020) which relevantly provides as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a 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:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
.. . .
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(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;
justify the granting of the visa.
By letter dated 1 October 2013 a delegate of the Minister informed the applicant there was “unfavourable information which does not support your application”.[1] The delegate stated that “Departmental records” indicate that on 24 April 2012 the applicant was refused a Skilled (Provisional) (Class VC) subclass 485 graduate visa (485 visa) for which he had applied because the applicant had provided a bogus document or false or misleading information in relation to the application for that visa.
[1] CB71-74
The applicant responded by email sent on 2 December 2013.[2] He said a migration agent prepared and lodged the application for a 485 visa on his behalf. The applicant further said that on 27 November 2012 he received a letter dated 27 November 2012 from the Tribunal[3] which stated that in his application for a 485 visa the applicant declared he had applied to a relevant assessing authority for an assessment of his skills for his nominated occupation, namely, “cook”, and had provided a Trades Recognition Australia (TRA) reference. The letter further stated that the TRA advised the Department of Immigration and Citizenship (as the Department for Immigration and Border Protection was then known) (Department) that it did not provide the TRA reference provided by the applicant, and that it had never provided the applicant with a skills assessment. In his email to the delegate the applicant said the application for a 485 visa was made without the applicant’s knowledge or consent, and that he had been misled by the agent who had lodged the application for a 485 visa purportedly on behalf of the applicant. The applicant also said that, after he became aware of these matters, he withdrew his application for a 485 visa.
[2] CB75-76
[3] CB78-80. The letter appears to have been sent for the purposes of s.359A of the Migration Act 1958 (Cth).
On 30 May 2014 a delegate of the Minister refused to grant the applicant a Partner visa because the applicant did not satisfy PIC4020(2) or PIC4020(4) and, therefore, did not satisfy cl.820.226 of Schedule 2 to the Regulations. The delegate noted the applicant had withdrawn his application for review of the delegate’s decision not to grant the applicant a 485 visa, and that the applicant provided no evidence to corroborate his claims that he was the victim of fraud.[4]
[4] CB94-97
Before the Tribunal
The applicant provided to the Tribunal a detailed submission explaining the circumstances in which incorrect information had been presented by the applicant’s migration agent in connection with the applicant’s application for a 485 visa.[5] The applicant submitted that his 485 visa application was lodged by S & S Migration (SSM) “who have been found to lodge a number of fraudulent visa application”, and the applicant was “unaware of the visa subclass requirements at the time of my Temporary work (Subclass 485) visa application”.[6] The applicant said he consulted SSM to discuss his personal situation and find a possible visa solution, if eligible; and SSM advised the applicant he could get a work visa. The applicant said he assumed SSM’s advice was professional and honest.
[5] CB118-123
[6] CB119
The applicant’s submission also addressed the nature of the relationship between him and the Sponsor. The applicant said the Sponsor has drug and alcohol addiction problems, the thought of the applicant leaving the Sponsor increases the Sponsor’s levels of stress, the applicant takes the Sponsor for counselling, and the Sponsor is “completely financially dependent” on the applicant.[7] The applicant also described how the Sponsor and her mother supported the applicant. The applicant relied on these matters in support of his submissions that there existed compelling and compassionate circumstances in relation to the Sponsor that warranted the granting of a visa.[8]
[7] CB121
[8] CB122
The applicant, the Sponsor, and the Sponsor’s mother gave evidence before the Tribunal. The Sponsor’s mother said the applicant provided the Sponsor with emotional and financial support.[9]
[9] CB227, [33]
Tribunal’s reasons
The Tribunal found that PIC4020(2) was not met because, during the three year period before he applied for the Partner visa, the applicant had been refused a visa because he failed to satisfy PIC4020(1). The Tribunal then considered whether it should waive the requirement imposed by PIC4020(2).
The Tribunal began this part of its reasons by referring to the explanatory statement that accompanied the making of the regulations that introduced PIC4020.[10] The Tribunal said:[11]
The Explanatory Statement states that it is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia’s interests, or the compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, not the interests of the visa applicant. The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 include:
·family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
·that family members in Australia would be left without financial or emotional support; and
·a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).
[10] These are the Migration Amendment Regulations 2011 (No 1) (Cth)
[11] CB227, [30]
The Tribunal said that it was required to consider all the circumstances of the case, including evidence put forward by the applicant, and determine, on the evidence as a whole, whether there are compelling or compassionate circumstances that would justify the granting of the visa.[12]
[12] CB227, [31]
The Tribunal first referred to the applicant’s submission that he was an unwitting victim of fraud and that he himself had not given a bogus document or provided false information to the Department. The Tribunal noted, however, that these submissions:[13]
are not submissions on the circumstances affecting the interests of the sponsor. While they provide context for the application, they are not directly relevant to the interests of the sponsor. . . . Consequently, while the submissions regarding the conduct of the applicant’s former migration agent have been considered, they do not weigh in consideration of the discretion except to provide contextual background.
[13] CB228, [35]
The Tribunal then considered the evidence and submissions made in relation to the Sponsor’s drug addiction. The Tribunal accepted the Sponsor depends on methadone, and that the Sponsor is optimistic she will be drug-free in the near future once she and the applicant have saved sufficient money to enable the Sponsor to undergo Naltrexone implant surgery. The Tribunal noted the Sponsor said the applicant had brought stability to her life, and that she felt positive about the future.[14]
[14] CB228, [37]
Next, the Tribunal considered the applicant’s claim that the Sponsor was financially dependent on him. The Tribunal did not accept that claim, even though the Tribunal accepted the applicant paid the majority of the parties’ expenses, excluding rent, and that the applicant’s income from employment enabled the parties to enjoy a comfortable and more financially secure lifestyle. The Tribunal noted the Sponsor receives income support payments from Centrelink, a family tax benefit because she has shared care of her 16 year old daughter, and she lives in community housing, the rent for which is deducted from the Sponsor’s income support payments.[15]
[15] CB228-229, [38], [39]
The Tribunal acknowledged the Sponsor will suffer a degree of psychological and material hardship if the applicant were required to depart Australia. The Tribunal noted, however, that the Sponsor’s condition is being managed appropriately and she is cooperating with the treatment programme; the Sponsor has a close relationship with her mother who provides the Sponsor with some emotional support; and the Sponsor said she receives some psychological support from the private clinic she attends.[16]
[16] CB229, [40]
The Tribunal also acknowledged the applicant and the Sponsor have formed a close bond and that the applicant provides the Sponsor with a level of emotional support and companionship; and that the parties would find “any separation very distressing” if the applicant were to leave Australia. The Tribunal noted, however, that “these circumstances are the hallmarks of a genuine partner relationship which it appears that the parties enjoy”, and that “an application for a Partner visa is predicated on a close relationship between the parties”.[17]
[17] CB229, [41]
The Tribunal concluded, therefore, it was not satisfied there are any circumstances in the applicant’s case that affect an Australian citizen, Australian permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC4020 and the grant of a Partner visa to the applicant.[18]
[18] CB229, [43]
Ground 1
The further amended application contains two grounds. The first is as follows:
The Tribunal misconstrued and misapplied the words, “compelling or compassionate circumstances affecting the interests of an Australia citizen” in Schedule 4, Item 4020(4)(b) of the Migration Regulations 1994 (Condition 4020(4)(b)).
Particulars
(a)The Tribunal erroneously construed Condition 4020(4)(b) as applicable only to circumstances that directly affect an Australian citizen.
(b)The Tribunal should have construed Condition 4020(4)(b) as encompassing compassionate and compelling circumstances affecting the visa applicant which indirectly affects the interests of an Australian citizen.
(c)The Tribunal erroneously construed Condition 4020(4)(b) as excluding psychological and material hardship that would be suffered by an Australian citizen as a result of the applicant having to depart Australia, because the citizen had other sources of psychological and material support.
(d)The Tribunal in deciding whether to exercise its discretion pursuant to Condition 4020(4)(b), should have considered the degree of financial and material support provided by the applicant to the relevant Australian citizen.
(e)The Tribunal erroneously construed Condition 4020(4)(b) as excluding the emotional support and companionship provided to the relevant Australian citizen because emotional support and companionship are hallmarks of a genuine partner relationship.
(f)The Tribunal in deciding whether to exercise its discretion pursuant to Condition 4020(4)(b), should have considered the degree of emotional support and companionship provided by the applicant to the relevant Australian citizen.
There are two matters to note about this ground. First, although it is expressed as one ground, the particulars state distinct grounds on which the applicant relies for claiming the Tribunal incorrectly construed or applied the Words in Question. It will therefore be necessary to identify and consider each ground the particulars raise. Second, the applicant does not submit the Tribunal expressly misconstrued the Words in Question. The applicant instead relies on inferences based on the Tribunal’s reasoning.
The first step in considering ground 1 will be to construe the Words in Question. Before I do that, however, it would be useful to set out some principles of statutory construction.
Principles
Although the Words in Question appear in a schedule to regulations – in other words, in delegated legislation - the “general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation”.[19] To “use the words of Dixon J, “subordinate or delegated legislation … [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction””.[20]
[19] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ
[20] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. This quoted passage is taken from the judgment of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195
The basic rule of statutory construction was restated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[21]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[21] [2009] HCA 41; (2009) 239 CLR 27 at 46-47 ([47]) (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky v Australian Broadcasting Authority:[22]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[22] [1998] HCA 28; (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ).
One consequence of beginning the task of statutory construction by considering the text is that, if that consideration yields a meaning that is not doubtful, “there is no occasion to look to the extrinsic material”.[23] That means “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.[24]
[23] Catlow v Accident Compensation Commission [1989] HCA 43 at [6]; (1989) 167 CLR 543 at 550 per Brennan and Gaudron JJ
[24] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 265 ([33]) (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Heydon J noted (at 277 ([74]) that “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation itself.”
Construction of Words in Question
The Words in Question appear in PIC4020(4)(b). That paragraph compels the decision-maker to waive PIC4020(1) or (2) if the decision-maker is satisfied of the following:
a)there is an Australian citizen, an Australian permanent resident, or “an eligible New Zealand citizen” (relevant person);
b)the relevant person has “interests”;
c)there are “circumstances that affect” the “interests of” the relevant person;
d)the “circumstances that affect the interests” of the relevant person are “compassionate or compelling”; and
e)the compassionate or compelling circumstances that affect the interests of the relevant person are such as to “justify the granting of the visa”.
The word “interests” is not defined in the Act. The dictionary gives the word “interest” a variety of meanings. Some of the meanings given by the Oxford English Dictionary, for example, are the “relation of being objectively concerned in something, by having a right or title to, a claim upon, or a share in”; as the “relation of being concerned or affected in respect of advantage or detriment; esp. an advantageous relation of this kind”; and as a “thing in which one has an interest or concern”. Because of their generality, however, these definitions are of limited use. A surer guide to the meaning of “interests” is the extensive use of the word “interests”, usually in conjunction with the proposition “in”, in a number of areas of the law.
For example, “interests” is used to describe different types of relation between persons and tangible or intangible property.[25] “Interests” is also used to describe different types of relations between persons and states of affairs that it is the purpose of particular torts to protect for the benefit of persons. Thus, there is the interest a person has in the security of his or her person or of his or her property that is protected by the tort of trespass and the tort of negligently inflicted harm or damage; and there is the interest a person has in the security of possession of his or her land or goods that is protected by the tort of trespass and, in the case of goods, the tort of conversion.[26] Even broader is the use of the word “interest” to determine whether the exercise of public power is subject to a duty to accord a person procedural fairness. In broad terms a duty to accord procedural fairness to a person will attach to the decision to exercise public power if the decision is likely to affect the interests of that person.[27] “Interests”, in this context, is given a broad meaning, and extends beyond legal rights.[28]
[25] See, for example, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, Fifth Edition, 2015, Chapter 4
[26] See, for example, New South Wales v Ibbett [2006] HCA 57 at [29]
[27] See, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at page 619 where Brennan J said: “If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power.”
[28] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at page 616 where Brennan J said: “The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.”. This passage was quoted with approval by the plurality in Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at [66]
In my opinion, “interests”, as used in PIC4020(4)(b) in connection with a relevant person, is intended to have a broad meaning. It may be taken to refer to any present or future state of affairs that is or may be of benefit or to the advantage of the relevant person. This would include the right to or expectation of future economic support. It may also include current or future states of affairs that are or will be conducive to the relevant person’s psychological health or even experience of joy.
The next expression is “circumstances that affect” the interests of the relevant person. The word “affect” implies an alteration of the interests of the relevant person, and the existence of circumstances which will or may bring about that alteration. PIC4020(4)(b), however, does not expressly identify the nature of the alteration of the interests of the relevant person, or of the type of circumstances that are relevant to bringing about the alteration. That is to be inferred by considering PIC4020(4)(b) as a whole and, in particular, the expression “justify the granting of the visa”. That implies PIC4020(4)(b) requires the decision-maker to be satisfied of the following:
a)there will be an alteration of the interests of the relevant person; and
b)the alteration of the interests of the relevant person will be brought about by the visa applicant not being granted a visa and, hence, not remaining in Australia.
That, in turn, suggests that the requirement in PIC4020(4)(b) that there must be “circumstances that affect” the interests of the relevant person requires the decision-maker to compare the position the relevant person will be in if the visa applicant is granted a visa, with the position the relevant person will be in if the visa applicant is not granted a visa. The expression “circumstances that affect” the interests of the relevant person, therefore, denotes the alteration of the position of the relevant person that will be brought about by the visa applicant’s not being granted the visa.
The expression “circumstances that affect” the interests of the relevant person does not by itself specify the nature of the alteration to the relevant person’s interests that must be brought about by the visa applicant’s not being granted a visa. The required nature of the alteration is prescribed by the words “compassionate” and “compelling”. I first consider the meaning of “compassionate”.
The ordinary meanings of “compassionate”, when used as an adjective, include “affected with, characterised by, or expressing compassion; pitiful, sympathetic”; and “fitted to excite compassion; pitiable, piteous”. The ordinary meaning of the noun “compassion” is the “feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour”.[29] The word “compassionate”, therefore, implies the existence of a person or persons suffering or being distressed. For circumstances that affect the interests of the relevant person to be characterised as “compassionate” within the meaning of PIC4020(4)(b), therefore, the circumstances must be those that:
a)will be brought about by the visa applicant’s not being granted a visa;
b)will result in the relevant person suffering or being distressed; and
c)will induce a desire by the decision-maker to alleviate the suffering and distress that will be brought about by the visa applicant’s not being granted the visa by granting the visa in question.
[29] Oxford English Dictionary
The final word to consider is “compelling”. When used as an adjective it means “that compels”. The meanings of the verb “compel” include “to urge irresistibly, to constrain, oblige, force”.[30] Thus, “compelling” has meanings that include “that urges irresistibly”, or “that constrains, obliges, forces”. Unlike the word “compassionate”, which includes in its meaning not only the nature of the emotion, but the things that may cause that emotion – suffering or distress – the word “compelling” does not suggest in its meaning that which has the effect of urging irresistibly or which obliges or which forces. In the context of PIC4020(4)(b), that which must have this effect or these effects is the difference in the position the relevant person will find himself or herself if the visa applicant is not granted a visa compared to the position the relevant person will be in if the visa is granted.
[30] Oxford English Dictionary
From this discussion, it could be said that when determining whether PIC4020(4)(b) applies, the decision-maker should ordinarily consider the following matters:
a)what is the position the relevant person will be in if the visa is granted to the visa applicant?
b)what is the position the relevant person will be in if the visa is not granted to the visa applicant?
c)is the difference in the position in which the relevant person will find himself or herself if a visa is not granted to the visa applicant compared with the position the relevant person will be in if the visa is granted to the visa applicant, such as will lead to the relevant person suffering or being in distress?
d)if (c) is answered in the affirmative, is the relevant person’s suffering or distress of such a nature and degree that it induces a desire to relieve the suffering or distress by granting the visa?
e)alternatively to (c) and (d), is the nature and extent of the difference in the position the relevant person will be in if a visa is not granted to the visa applicant compared with the position the relevant person will be in if the visa is granted, such as to irresistibly urge, force, or oblige the decision-maker to grant the visa?
If (d) or (e) are answered in the affirmative, the decision-maker is required to waive compliance with PIC4020(1) or (2), as the case may be.
The parties have not referred me to any cases that have considered PIC4020(4). Although I have been unable to find any authorities that have examined in any comprehensive way PIC4020(4), there are cases that have considered the word “compelling circumstances” in provisions that are analogous to PIC4020(4). In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs,[31] the Full Federal Court considered the construction of “compelling circumstances” as that expression appeared in reg.1.20J(2) of the Regulations. That regulation provided that the Minister would grant a Partner (Provisional) (Class UF) visa if the Minister were satisfied “there are compelling circumstances affecting the sponsor or nominator”. The Migration Review Tribunal (MRT) adopted a dictionary definition of “compelling” as meaning “to force or drive, especially to a course of action” and applied that definition to conclude that the matters it accepted existed, and on which the applicant in that case submitted constituted compelling circumstances, did not “drive” it to the view that the discretion should be exercised. On an application for judicial review, the primary judge found the MRT adopted and applied the meaning that applied to “compelling” as a present participle when the meaning the Tribunal ought to have adopted was that which applied “compelling” as an adjective. The Full Federal Court disagreed with the primary judge:
[21] In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. . . .
[22] In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge’s view of this.
[23] In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.
[25] We do not consider that the definition of “compelling circumstances” adopted by the MRT deflected it from deciding the question it had to decide. It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him. It considered whether each of the circumstances alone or together “compelled” the exercise of the discretion. We can see no error in this, let alone jurisdictional error.
[31] [2005] FCAFC 77 (Tamberlin, Conti, and Jacobson JJ)
I will now address each of the distinct grounds that are made in the particulars to ground 1 of the further amended application.
Particulars (a) and (b)
The applicant claims the Tribunal construed PIC4020(4)(b) as applying only to circumstances that are directly relevant to the interests of an Australian citizen, but not to circumstances that are relevant, but only indirectly relevant, to the interests of an Australian citizen. The applicant relies on the passage from the Tribunal’s reasons that I have reproduced in paragraph 14 of these reasons. The applicant further submits the Tribunal ought to have held PIC4020(4)(b) applies to circumstances that indirectly affect an Australia citizen, and that the applicant’s having been a victim of fraud is a circumstance that indirectly affected the interests of the Sponsor.
The Minister, on the other hand, submits the Tribunal did not proceed on the view that PIC4020(4)(b) only applied to circumstances that directly affect the interests of an Australian citizen. The Minister points to the Tribunal referring to the Explanatory Statement and to its expressing the view that PIC4020(4)(b) applies only to the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, not to the interests of the visa applicant.
It is true the Tribunal said the applicant’s being the victim of fraud was not directly relevant to the interests of the Sponsor. The Tribunal’s statement, however, must be construed in context.
a)First, earlier in its reasons for decision, the Tribunal repeated the substance of the Explanatory Statement which stated that the waiver provided by PIC4020(4)(b) applied solely to the circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.[32]
b)Second, the Tribunal said that the “submissions regarding the circumstances surrounding the refusal of [the applicant’s] Subclass 485 visa are not submissions on the circumstances affecting the interests of the sponsor”.[33]
c)Third, the Tribunal referred to the submissions regarding the circumstances in which the applicant claimed he had been refused a 485 visa provided “context for the application”.[34]
d)Fourth, that which PIC4020(4)(b) required to give rise to compassionate or compelling circumstances was the applicant’s not being granted a Partner visa because he or she cannot satisfy PIC4020(1) or PIC4020(2). The reasons why the applicant was unable to satisfy those criteria, however, were irrelevant to that question.
[32] CB227, [30]
[33] CB228, [35]
[34] CB228, [35]
In these circumstances, I find that, by stating that the applicant’s submissions regarding the circumstances surrounding the refusal of the 485 visa were not directly relevant to the interests of the Sponsor, the Tribunal meant that those submissions were not relevant, directly or indirectly, to the interests of the Sponsor. That does not manifest any incorrect understanding of PIC4020(4)(b) by the Tribunal. The text of PIC4020(4)(b) refers, and only refers, to “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”. It does not refer to the interests of the visa applicant or the interests of any other class of persons.[35]
[35] See also Vyas & Anor v Minister for Immigration [2013] FCCA 1226 at [14]
Particulars (a) and (b), therefore, are not made out.
Particulars (c) and (d)
Particular (c) claims the Tribunal erroneously construed PIC4020(4)(b) as excluding psychological and material hardship that would be suffered by an Australia citizen as a result of the applicant having to depart Australia, because the citizen had other sources of psychological and material support. Particular (d) claims the Tribunal should have considered the degree of psychological and material support the applicant provided to the Sponsor, thus implying the Tribunal did not consider these matters. Counsel for the applicant further submitted the Tribunal had to weigh the support the Sponsor receives from the applicant with the support she receives from other sources.
I do not accept the Tribunal proceeded on the assumption that any psychological or material hardship the Sponsor might suffer because of the applicant’s departure from Australia would be excluded if the Sponsor had available to her other sources of psychological and material support. Although there was evidence, which the Tribunal accepted, that the applicant provided emotional support to the Sponsor, there was no evidence before the Tribunal that the applicant’s departure would result in any other psychological hardship to the Sponsor. The Tribunal noted the Sponsor has a long-standing drug dependency, that she has been receiving methadone from a private clinic over the past four years, and that the Sponsor receives some psychological support from the clinic but has not needed to attend regular counselling due to her drug dependence. The Tribunal further noted there was no evidence to show the Sponsor suffered from any other diagnosed physical or mental health conditions.[36]
[36] CB229, [40]
As for material hardship the Tribunal accepted the applicant’s income enabled the parties to enjoy a comfortable and more financially secure lifestyle, but it did not accept the Sponsor was financially dependent on the applicant. That is so because the Tribunal found the Sponsor has an independent source of income and is living in community housing.[37] The Tribunal also accepted that if the applicant were to leave Australia it may take the Sponsor longer to obtain sufficient funds for surgery she hoped to undertake to free her from her drug dependency without the applicant’s income from employment.[38] These matters indicate the Tribunal did consider the material support the applicant provided to the Sponsor, and I am not satisfied the Tribunal did not weigh the support the Sponsor receives from the applicant with the support the Sponsor receives from other sources.
[37] CB229, [39]
[38] CB229, [40]
Particulars (c) and (d), therefore, fail.
Particulars (e) and (f)
Counsel for the applicant made one set of submissions addressed to these paragraphs and to ground 2 of the further amended application. I propose to consider paragraphs (e) and (f) together, but separately from ground 2.
In particular (e) the applicant claims the Tribunal erroneously construed PIC4020(4)(b) as excluding the emotional support to the relevant Australian citizen because emotional support and companionship are hallmarks of a genuine partner relationship. Particular (f) claims the Tribunal should have considered that emotional response. These particulars relate to the Tribunal’s reasoning in paragraph 41 of its reasons. In that paragraph the Tribunal acknowledged the applicant and the Sponsor “formed a close bond”, that the applicant provides the Sponsor “with a level of emotional support and companionship”, and that “the parties would find any separation very distressing, were [the applicant] to leave Australia”. The Tribunal further said:[39]
However these circumstances are the hallmarks of a genuine partner relationship which it appears that the parties enjoy, and which form the basis of all partner visa applications. In the Tribunal’s view an application for a Partner visa is predicated on a close relationship between the parties.
[39] CB229, [41]
Counsel for the applicant submits the Tribunal excluded emotional support from the circumstances that could come within PIC4020(4)(b) because a close relationship between parties is a precondition to the granting of a Partner visa.[40] Counsel for the Minister, on the other hand, submits that the fact the Tribunal found the applicant and Sponsor had formed a close bond, and that their relationship had all the hallmarks of a genuine partner relationship, did not oblige the Tribunal to exercise the discretion under PIC4020(4)(b).[41]
[40] Applicant’s Outline Submissions, [29]
[41] First Respondent’s Submissions, [40]
The Minister’s counsel’s submission mischaracterises the applicant’s submission. Counsel for the applicant does not submit the Tribunal was bound to conclude there were compelling or compassionate circumstances because it found the applicant and the Sponsor had formed an emotional bond; counsel’s submission is that the Tribunal considered such fact to be irrelevant to whether there are compelling or compassionate circumstances. Three questions, therefore, arise: did the Tribunal proceed on the view that the emotional attachment that may have formed between parties to a spousal relationship is not relevant to assessing whether circumstances are compassionate or compelling? If so, did the Tribunal misconstrue PIC4020(4)(b)? If so, did the Tribunal make a jurisdictional error?
In my opinion, the Tribunal did proceed on the basis that the emotional attachment that exists between parties to a genuine spousal relationship is not relevant to assessing whether there are compelling or compassionate circumstances. That is apparent from the manner in which the Tribunal dealt with its finding that “the parties would find any separation very distressing, were [the applicant] to leave Australia” (emphasis added). That is a finding that the Sponsor (and the applicant) will suffer distress of a high degree if the applicant were to leave Australia. That finding ought to have led the Tribunal to consider whether the distress the Sponsor will suffer because of her separation from the applicant was such as to lead the Tribunal to conclude the distress would justify the granting of the Partner visa. That, however, is not what the Tribunal did. It instead said that the circumstances that would give rise to the Sponsor’s (and the applicant’s) distress on their separation, namely, the close bond the Sponsor had with the applicant, and the Sponsor and applicant providing to each other emotional support and companionship, were the hallmarks of a genuine partner relationship. That indicates the Tribunal was of the view that the circumstances that would give rise to the Sponsor being very distressed by her being separated from the applicant were circumstances that existed in all partner visa applications that were predicated on a genuine partner relationships; and that the circumstances that were capable of constituting compassionate or compelling circumstances in the case of partner visa applications, therefore, had to exist outside the circumstances the Tribunal considered were the hallmarks or the usual incidents of a genuine partner relationship.
The next question is whether the Tribunal misconstrued PIC4020(4)(b). In my opinion it did.
a)First, PIC4020(4)(b) is a condition that is capable of applying to different classes of visa applications. There is nothing in the text of PIC4020(4)(b) that can be taken to exclude from a particular class or particular classes of visas – in this case Partner visas – what would otherwise be compelling or compassionate circumstances because such circumstances may be thought to be the hallmark or usual incidents of the factual premises on which such visas may be granted.
b)Second, there is no reason why the hallmarks or usual incidents of a particular genuine partner relationship could never give rise to compelling or compassionate circumstances. The nature and the extent of the bonds that may exist between partners to a genuine relationship, and the consequences of partners separating, even if only for the time it would take for an applicant to apply offshore for a Partner visa, are likely to differ from one relationship to another. That means that, whether or not the separation can give rise to compassionate or compelling circumstances must be considered having regard to the particular circumstances of the case. There is nothing in PIC4020(4)(b) that could suggest that the decision-maker is to ignore the nature and extent of the bond between particular parties to a particular genuine partner relationship only because it is to be expected that emotional bonds are present in all genuine partner relationships.
c)Third, the Tribunal’s construction would give rise to anomalous results. If correct, it would mean compassionate or compelling circumstances that may arise out of the emotional bonds that are present in a genuine partner relationship may not be taken into account where the class of visa in question is a Partner visa, yet it may be taken into account in other classes of visa.
The final question is whether, by misconstruing PIC4020(4)(b), the Tribunal made a jurisdictional error. In my opinion it did; it made a jurisdictional error of the sort Jordan CJ identified in Ex parte Hebburn Ltd; Re Kearsley Shire Council: [42]
I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction . . . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test” . . . or to “misconceive its duty” or “not to apply itself to the question which the law prescribes” . . . or “to misunderstand the nature of the opinion which it is to form” . . . in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law . . . .
[42] (1947) 47 SR (NSW) 416 at page 420
The Tribunal incorrectly construed PIC4020(4)(b) as excluding from the notion of compassionate or compelling circumstances the emotional bonds and emotional support each party to such relationship provided each other because the Tribunal regarded these matters to be the hallmarks or usual incidents of a genuine partner relationship. By so misconstruing PIC4020(4)(b), the Tribunal did not do that which it was required to do, namely, consider whether the distress it found the Sponsor (and applicant) would suffer by the applicant’s having to leave Australia constituted compassionate or compelling circumstances that would justify the granting to the applicant of a Partner visa.
This part of the applicant’s claim, therefore, succeeds.
Ground 2
Ground 2 is as follows:
The Tribunal erred in disregarding emotional support and companionship as a factor relevant to PIC 4020(4)(b) on the basis that an application for a Partner Visa is predicated on a close relationship between the parties.
Particulars
(a)An application for a Partner Visa is not predicated on a close relationship between the parties
In his written submissions, counsel for the applicant refers to the decision of the Full Federal Court in Minister for Immigration and Border Protection v Angkawijaya where it was said that the existence or absence of love and affection is not determinative of whether a Partner visa should be granted.[43] Kenny and Griffiths JJ (with whose reasons Allsop CJ agreed) said:[44]
Likewise, because the existence of love and affection is not determinative of the question whether there exists a de facto relationship at the relevant time, its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.
[43] [2016] FCAFC 5 at [53]
[44] [2016] FCAFC 5 at [53]
Counsel for the applicant submits the Tribunal proceeded on the basis that a strong emotional bond was the hallmark of a genuine partner relationship, and this was incorrect given the Full Federal Court’s conclusion in Angkawijaya that the existence or absence of love and affection is not determinative of whether a Partner visa should be granted.
In my opinion, the Tribunal did not make a jurisdictional error only because it may have mistakenly assumed that an emotional bond between parties to a genuine partner relationship is the hallmark of such relationships. The jurisdictional error I have found the Tribunal made was in its construing PIC4020(4)(b) as excluding the nature and extent of the emotional bond that may exist between parties to a genuine partner relationship as a matter that could or should be taken into account when determining whether there are any compassionate or compelling circumstances.
Ground 2, therefore, offers no independent ground for concluding the Tribunal made a jurisdictional error and, therefore, does not succeed.
Disposition
Given the applicant has succeeded on particulars (e) and (f) of ground 1, I propose to order that the Tribunal’s decision be quashed. I also propose to order that the applicant’s application for review be considered by the Tribunal according to law.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 12 October 2017
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