Singh v Minister for Home Affairs
[2019] FCCA 2484
•4 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2484 |
| Catchwords: MIGRATION – Application for spousal visa – failure to comply with Schedule 3 criteria – consequential requirement for visa application to be made offshore unless compelling reasons demonstrated for waiver of Schedule 3 criteria – no compelling reasons found – no obligation on the part of the Tribunal to have regard to UN Convention on the Rights of the Child when arriving at its decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5F |
| Cases cited: Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 |
| Applicant: | AMRINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 860 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 4 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Wickham Lawyers |
| Counsel for the First Respondent: | Mr P. Nolan |
| Solicitors for the First Respondent: | Sparke Helmore |
| Second Respondent: | Submitting Appearance |
ORDERS
The amended application for review filed on 21 December 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 860 of 2018
| AMRINDER SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia as a secondary applicant based upon his first wife then being the holder of a Student (Subclass 572) Visa.
On 16 June 2011, the applicant was included as a dependent on his wife’s application for a Skilled Graduate (Subclass 485) Visa. That application was refused on 10 April 2012, after which an appeal was filed by the applicant with the Migration Review Tribunal (MRT) on 2 May 2012. The MRT subsequently held that it had no jurisdiction to hear the appeal and the application was dismissed.
The applicant’s bridging visa expired on 12 December 2012. The applicant and his first wife divorced on 4 May 2013. The applicant continued to reside in Australia as an unlawful non-citizen from 13 December 2012 until 11 November 2016 – a period of almost 4 years.
The applicant’s second wife met the applicant on 5 July 2014 when she first arrived in Australia. At that time, she had moved into a share house occupied by the applicant. The applicant and his second wife claimed that they entered into a relationship in November 2014. They subsequently married in a Sikh ceremony in Brisbane on 8 May 2016.
The applicant applied for a Partner (Temporary) (Class UK) Visa on 10 November 2016, that application being based upon his marital relationship with his second wife, who was also the sponsor to the applicant in respect of such visa application.
On 14 February 2017, the delegate to the Minister refused to grant the visa on the basis that the applicant did not meet the relevant criteria in Clause 820.221 of the Migration Regulations 1994 (Cth) (the Regulations). The delegate was also not satisfied that there were compelling circumstances justifying a waiver of the relevant Schedule 3 criteria. Clauses 820.211 and 820.221 of the Regulations relevantly provide as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 – by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfied Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is:
(i) a SOFA member; or
(ii) a SOFA forces civilian component member; or
(b) the applicant:
(i) is a dependent child of a person referred to in paragraph (a); and
(ii) holds a valid national passport and certificate that he or she is a dependant of a SOFA forces member or a SOFA forces civilian component member, as the case requires.
(2B) The spouse or de facto partner of the applicant is prohibited from being a sponsoring partner if:
(a) the spouse or de facto partner is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and
(b) on the date of grant of that visa:
(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or
(ii) the applicant was the spouse or de facto partner of that woman, and that relationship had not been declared to Immigration.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the applicant last entered Australia as the holder of a Subclass 300 (Prospective Marriage) visa; and
(c) the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and
(d) the applicant ceased to hold a substantive visa after marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(e) the applicant is the spouse of the sponsoring partner; and
(f) the applicant is sponsored:
(i) if the applicant’s spouse has turned 18 – by the spouse; or
(ii) if the applicant’s spouse has not 18 – by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(6) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse has turned 18 – by the spouse; or
(ii) if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) continues to be the spouse of the sponsoring partner.
(7) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the sponsoring partner has died; and
(d) the applicant satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died; and
(e) the applicant has developed close business, cultural or personal ties in Australia.
(8) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c) the relationship between the applicant and the sponsoring partner has ceased; and
(d) any 1 or more of the following:
(i) the applicant;
(ii) a member of the family unit of the applicant who has made a combined application with the applicant;
(iii) a dependent child of the sponsoring partner or of the applicant or both of them;
has suffered family violence committed by the sponsoring partner.
(9) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the applicant has been the holder of a Subclass 300 (Prospective Marriage) visa; and
(c) while that visa was valid, the applicant married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(d) the relationship between the applicant and the sponsoring partner has ceased; and
(e) any 1 or more of the following:
(i) the applicant;
(ii) a member of the family unit of the applicant who has made a combined application with the applicant;
(iii) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner.
Note: For special provisions relating to family violence, see Division 1.5.
…
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
On 3 March 2017, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision.
A female child of the relationship between the applicant and his second wife was born on 10 March 2018. [1]
[1] Court book page 208.
On 25 June 2018, the Tribunal invited the applicant to attend an interview on 17 July 2018.
On 10 July 2018, the applicant provided a lengthy written submission prepared by a migration agent in support of his application. That submission conceded that at the time of the making of the application for the visa, the relevant Schedule 3 criteria 3001, 3003 and 3004 had not been met by the applicant. [2]
[2] Court book page 209.
The applicant appeared before the Tribunal and gave evidence on 17 July 2018. He was at the time assisted by a representative and an interpreter in the Punjabi and English languages.
On 27 July 2018, the Tribunal affirmed the decision of the delegate not to grant the visa.
On 21 August 2018, the applicant filed an application for review of the decision of the Tribunal.
On 21 December 2018, the applicant filed an amended application for review, the Grounds of which relied upon at the hearing (namely Grounds 1, 2 and 4) being as follows:
1. The Tribunal acted beyond its jurisdiction throughout the process of its determination that the Subclass 820/801 visa application did not satisfied cl. 820.211 (2)(d)(ii) of the Migration Regulations 1994. The Tribunal misguided itself by wrongly assessing how the compelling and compassionate circumstances for the purpose of Schedule 3 assessment arose as opposed to asking itself whether there is factual evidence of compelling and compassionate circumstances at the time of decision.
2. The Tribunal failed to consider relevant considerations in its decision when discussing the nature of the household as the Tribunal failed to consider the joint responsibility for care and support of children under r 1.15A(3)(b)(i) Migration Regulations 2011 (Cth) or Australia’s obligations under the Convention on the Rights of the Child. The Tribunal Member failed to take into account the best interest of an Australian citizen child as consistent with best practice.
4. The Tribunal failed to take into consideration all relevant and/or negative consequences that will impact on the Applicant and ultimately his Australian wife and new born daughter.
At [3] of its reasons, the Tribunal recorded that the applicant did not satisfy Clause 820.211(2)(a) or Clause 820.211(2)(d)(ii) of the Regulations. The applicant was found by the delegate not to meet Schedule 3 criterion 3001. The delegate also did not find that the parties were in a genuine relationship. The delegate did not find that the parties’ claim that they were then trying to conceive a child was a compelling reason to waive the Schedule 3 criteria.
At [11] of its reasons, the Tribunal noted that at the time of its decision, the parties had a baby daughter born on 10 March 2018.
At [14] of its reasons, the Tribunal confirmed that an applicant must satisfy the relevant Schedule 3 criteria in 3001, 3003 and 3004 unless the Minister is satisfied that there were compelling reasons for not applying such criteria.
At [19]-[21] inclusive of its reasons, the Tribunal set out the relevant matters which had to be taken into account for the purpose of its determining whether compelling reasons for the waiver of the relevant criteria existed or not. At the time of the hearing before the Tribunal, the applicant and the sponsor referred to the following as being compelling reasons to waive compliance with the relevant criteria:
a)That the parties were in a long term relationship.
b)That they had an Australian citizen child.
c)That they were used to living in Australia.
d)That the sponsor was financially and emotionally dependent on the applicant.
e)That the sponsor was not confident and capable of raising a child on her own.
f)That they would suffer financial stress if they had to leave the country for the purpose of a spousal visa application being made offshore.
As to d) above, it is of note that at [12] of its reasons, the Tribunal recorded that at the time of the decision, the sponsor had a master’s degree in International Business Administration conferred by a Queensland university, and that the sponsor was on maternity leave from employment as an office manager for a farm labour hire company in Gatton. It is to be inferred that after her period of maternity leave expired, the sponsor would have been entitled to return to her former paid employment.
At [22] of its reasons, the Tribunal recorded that it had considered the provisions of regulation 1.15A of the Regulations for the purposes of determining whether the parties met the definition of spouse in s. 5F of the Migration Act 1958 (Cth) (the Act).
At [23]-[34] inclusive of its reasons, the Tribunal closely considered matters relevant to the financial aspects of the relationship between the applicant and the sponsor, the nature of their household, the social aspects of the relationship and the nature of each of their commitment to each other. Having considered those matters, the Tribunal at [35] of its reasons accepted that the parties had provided each other with companionship and support and that they saw their relationship as long term.
At [36] of its reasons, the Tribunal found that the parties had been in a spousal relationship since March 2016. It found, however, that the existence of such relationship was not in itself a compelling reason to waive compliance with the relevant Schedule 3 criteria. It noted that the requirement to be in a genuine relationship was common to all partner visa applicants.
At [37]-[42] inclusive of its reasons, the Tribunal closely detailed and considered each of the claims made by the applicant and the sponsor in support of the proposition that there were compelling reasons why the relevant Schedule 3 criteria ought to be waived. The Tribunal was not satisfied that there were any compelling reasons demonstrated.
At [37] and [38] of its reasons, the Tribunal found that the parties chose to have a child in the full knowledge that the applicant could be required to lodge a partner visa application offshore. The Tribunal noted that the sponsor knew about the requirement for the applicant to make a partner visa application offshore, saying nevertheless that that “was not in her mind” when she sought medical assistance to conceive. The Tribunal also noted that the applicant stated that for him it was a cultural imperative to have a child after marriage, noting further however, that the applicant and his first wife had not so had a child as a cultural imperative after their marriage.
The Tribunal was entitled to consider the circumstances surrounding the sponsor’s pregnancy and its timing relative to the timing of the making of an application for a spousal visa. That was particularly so in circumstances where the parties knew that the applicant was required to make his visa application offshore because he did not satisfy the relevant Clause 820.211 criteria. That was a factor which the Tribunal was entitled to take into account when assessing the genuineness of the submission that compelling reasons existed to waive compliance with the Schedule 3 criteria. To the extent that Ground 1 of the amended application for review is directed to such finding of the Tribunal, such ground is without merit. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious enquiry about a critical fact. [3]
[3] Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25]-[27].
The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21]-[24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].
Ground 2 of the amended application for review is based firstly upon the proposition that the Tribunal failed to relevantly consider the provisions of regulation 1.15A(3)(b)(i) of the Regulations. There is no merit to such argument. The Tribunal found that the parties had provided each other with companionship and support, and that they saw their relationship as long term. The Tribunal was well aware of the existence of the child of the relationship at the time it made such finding. The child was an obvious and integral part of such relationship being found. There was no suggestion that either the applicant or the sponsor were other than loving and caring parents.
As to the second limb of Ground 2 of the amended application for review, the Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 rejected the proposition that a Tribunal, in circumstances such as the present, was under a mandatory obligation to apply the provisions of the United Nations Convention on the Rights of the Child (the Convention). At [5] of its reasons, the Full Court set out the grounds of appeal in that case as follows:
[5] The Court erred by failing to find that the Migration Review Tribunal’s (the Tribunal) decision was affected by jurisdictional errors, as follows:
1. The Tribunal misconceived the nature of the function it was required to perform under PIC4020(4) of the Migration Regulations 1994 (Cth). Expressed differently, the Tribunal took into account irrelevant considerations, illogical reasoning or disproportionate reasoning.
Particulars
(i) The Tribunal misconceived the nature and extent of the compassionate and/or compelling interests required to be considered in PIC4020(4)(a) and (b).
(ii) The Tribunal erroneously equated relevant considerations deriving from the Convention on the Rights of the Child to a test of whether the Third Appellant’s and/or Fourth Appellant would survive, or would be afforded a basic standard of living, should the Appellants’ visas not be granted.
(iii) The Tribunal, despite identifying Australia’s compliance with Article 3 of the Convention as being relevant to the exercise of discretion in PIC 4020(4), failed to have regard to a relevant consideration by failing to treat the best interests of the child and/or children as a primary consideration.
(iv) Further or alternatively, the Tribunal failed to treat the best interests of the child and/or children as a primary consideration, by failing to identify or make a finding as to what the best interests of the child or children were.
(v) Further or alternatively, if the Tribunal did attempt to identify the best interests of the child and/or children, the Tribunal failed to have a proper, genuine and realistic consideration of those interests, including by failing to have regard to the fact that, if deported, the younger child would have to leave the community in which he was born and raised, and the loss of educational, social, cultural and lifestyle opportunities available to both children in Australia.
(vi) Further or alternatively, if the Tribunal did identify the best interests of the child or the children, the Tribunal failed to treat those interests as a primary consideration by failing to consider whether those interests were outweighed by other relevant considerations.
(vii) Further or alternatively, if the Convention was not required to be applied, and for the above reasons was not applied, the Tribunal failed to afford procedural fairness to the Applicants in that it failed to give notice that it proposed to make a decision which did not accord with the principles that the best interests of the children would be a primary consideration in the process.
2. The Tribunal failed to discharge its review function in accordance with section 348 of the Migration Act 1958 (Cth).
Particulars
(i) In the face of all of the circumstances before it, the Tribunal could have and, should have, summonsed [Mr T], an alternative representative of [the salon] disclosed in the record, or [Mr O] to appear and give evidence pursuant to section 363(3)(a) of the Act.
At [20]-[28] inclusive of the reasons of Dowsett, Pagone and Burley JJ in Kaur, it was said as follows:
[20] The appellants contend that the purpose of sub-paragraph (4) is to protect against the potentially capricious operation of (1) and that by the Executive ratifying the Convention, Australia has given a solemn undertaking to the world at large that it will “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”, citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 301 (Toohey J) and at 285, 287 (Mason CJ and Deane J). They further contend that the Tribunal correctly satisfied itself that compliance with the Convention constituted compelling circumstances that affect the interests of Australia within PIC4020(4)(a). As a consequence, the appellants contend that the Tribunal was obliged to take into account the best interests of Jazzveer in accordance with the Convention, and in particular by considering what is best for his health, social, linguistic and educational development, his identity, culture and citizenship prospects, and weigh these factors in the balance against other factors. In failing to take these steps, the appellants contend that the Tribunal fell into jurisdictional error.
[21] We reject these submissions for the following reasons.
[22] First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
[23] In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
59. There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions – Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘... established doctrine’ that obligations under international treaties ‘... are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law – Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.
[24] Secondly, the fact that the Tribunal chose to respond to the appellants’ submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning Jazzveer provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration; Snedden at [152].
[25] Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration and Citizenship at [27]:
27. Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
[26] Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
[27] Accordingly, in our view the Tribunal did not fall into error on the basis asserted in grounds 1(i) – (vi) of the Notice of Appeal, and the FCCA did not fall into error in concluding that the application should be dismissed.
[28] In ground 1(vii) the appellants contend that if the Convention was not required to be applied, then the Tribunal failed to afford procedural fairness to them by failing to give notice that it proposed to make a decision which did not accord with the principle that the best interests of the children would be a primary consideration. However, it is apparent that it was the appellants, by their legal representatives, who themselves prosecuted the applicability of the Convention, and the appellants who made submissions on the subject. There can hardly be an absence of procedural fairness in those circumstances. Furthermore, at [27] the Tribunal noted that it had indicated to the appellants that in its view their circumstances were excluded from consideration under PIC4020. In any event we have found that there was no obligation arising under the Convention. There is no lack of procedural fairness in these circumstances. Accordingly, this ground is not made out.
The requirement for the Tribunal to consider the relevant provisions of the Convention in cases such as the present has not been mandated by legislative enactment. The unanimous decision of the Full Court in Kaur is binding in the circumstances of this case, and has been followed in this court. [4]
[4] Singh v Minister for Immigration and Border Protection [2018] FCCA 3180 at [16] per Judge
The Tribunal was not bound to make reference to the Convention, and no jurisdictional error has been demonstrated by its failure to do so. There is no merit to this ground.
As to Ground 4 of the amended application for review, this ground is without merit. The Tribunal closely considered all aspects of the claims made by and on behalf of the applicant. The Tribunal did not fail to address any matter of relevance concerning the proper consideration of what might constitute compelling reasons in the circumstances of this matter. [5] It was well aware of the evidence before it. It was not unreasonable or illogical for the Tribunal to have regard to the existence of supportive friends when considering the effect upon the sponsor and the child of the absence of the applicant due to the time that the applicant would be required to spend offshore for the purpose of the making of the visa application.
[5] Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27].
It was not unreasonable or illogical for the Tribunal to note the sponsor’s significant tertiary qualifications and her employment with a labour hire company when considering the financial consequences of the applicant not earning money whilst offshore making application for the visa.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were either irrational or illogical, Wigney J, at [55], said:
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25]-[27], where it was said:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.
The Tribunal acted reasonably. Its reasoning processes ought not to be scrutinised with an eye too keenly attuned to error.
The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.
The amended application for review is without merit and is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 4 September 2019
Egan.
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