Singh v Minister for Home Affairs
[2019] FCCA 510
•14 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 510 |
| Catchwords: MIGRATION – Application for partner visa – failure to satisfy criteria – no compelling reasons to waive criteria – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth) r.820.211, 820.221, 3001, 3003, 3004, 1.09A Migration Act 1958 (Cth) ss.5CB |
| Cases cited: CRK15 v Minister for Immigration & Border Protection [2018] FCCA 1475 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | GURDEEP SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 529 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 14 February 2019 |
| Date of Last Submission: | 14 February 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 14 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Julian-Armitage |
| Solicitors for the Applicant: | Porta Lawyers |
| Counsel for the First Respondent: | Mr Psaltis |
| Solicitors for the First Respondent: | Sparke Helmore |
IT IS ORDERED THAT:
The amended application for review filed on 22 August 2018 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 529 of 2018
| GURDEEP SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Indian citizen born in 1989. He arrived in Australia on 17 July 2008, holding a student (subclass 572) visa. His student visa was cancelled on 10 December 2009 due to non-attendance. The applicant, since the cancellation of his student visa, has continued to reside in Australia, lodging a number of visa applications and appeals. The applicant has not held a substantive visa since his student visa was cancelled on 10 December 2009. He remained unlawfully in the country between 10 December 2009 and 26 August 2015, when he was granted a bridging visa associated with a protection visa application.
On 8 November 2016, the applicant lodged an application for a partner visa the subject of these proceedings. The foundation for such application was the assertion that he was in a de facto relationship with a woman, who is an Australian citizen. He met the woman in or about October 2014. On 25 January 2017, a delegate of the Minister refused to grant the applicant a partner visa. It was found that the applicant did not satisfy clause 820.211 criteria of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate was not satisfied that the applicant was in a genuine de facto relationship with his sponsor, nor that there were compelling reasons to waive the schedule 3 criteria which applied because the applicant had remained in Australia unlawfully.
On 10 February 2017, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (‘the Tribunal’). On 28 February 2017, the Tribunal wrote to the applicant’s representative, inviting the applicant and his sponsor to attend a hearing and to provide any additional documents. On 3 and 4 April 2018, the applicant provided the Tribunal with substantial extra material in support of the application for review. Those documents included written submissions as well as statements in support of the proposition that he was in a de facto relationship as defined under the Act.
On 5 April 2018, the applicant and the sponsor attended before the Tribunal and gave evidence at a hearing. The applicant was represented at the hearing by a registered migration agent. On 12 April 2018, the applicant provided a further submission and material to the Tribunal. On 30 April 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa. The Tribunal was not satisfied that (a) the applicant and his sponsor were in a genuine de facto relationship, thereby not meeting the criteria as set out in clause 820.211(2)(a) or clause 820.221 of schedule 2 to the regulations, and (b) that compelling reasons existed to enable the Tribunal to waive the schedule 3 criteria.
The applicant filed an application for review of the decision of the Tribunal on 31 May 2018. The applicant filed an amended application on 22 August 2018. The grounds of the application for review are as follows:
1. In making the decision there was no evidence or other material to justify the AAT delegate’s findings that:
Particulars:
a) the applicant and the sponsor have no joint assets together;
b) the applicant and the sponsor signed up for utilities and car insurance in joint names for the purpose of the visa application;
c) the applicant has not represented himself to his family in India as being in a genuine relationship with the sponsor;
d) the applicant provided an inadequate explanation as to why the applicant had not introduced the sponsor to his family in India;
e) the easier markers of relationship, such as joint travel and superannuation and tax statements were organised for the purpose of the visa application; and
f) the applicant and the sponsor did not see the relationship as long term
2. A breach of the rules of natural justice happened in relation to the making of the AAT delegate’s decision in that:
Particulars:
The AAT delegate failed to give proper, genuine and realistic consideration to:
a) the applicant’s submission that:
1. at the time of the decision (of the Minister’s delegate), the parties were not sharing the house with another tenant;
2. That he did all of the cooking and cleaning in the house, because the sponsor suffers from back pain;
3. He had told a bother in India that he was in a relationship; and
b) the statutory declarations provided by the sponsor’s mother and sister and a former housemate
3. In making the decision, the AAT delegate took irrelevant considerations into account.
Particulars:
a) the fact that the applicant’s protection vis was refused;
b) the fact that the applicant filed an application to review the refusal in the AAT; and
c) the fact that the applicant withdrew his application to review the refusal
4. A breach of the rules of natural justice happened in relation to the making of the AAT delegate’s decision that there were not compelling reasons for not applying the Schedule 3 Criteria.
Particulars:
The AAT delegated failed to give proper, genuine and realistic consideration to the medical and other evidence provided by the sponsor about the effect of her illness and dependence on the support of the applicant.
5. The AAT’s decision was manifestly unreasonable as it is based on conclusions and determinations not based on any evidence before it.
Particulars:
The applicant repeats and relies upon the particulars for Ground 1 above.
By clauses 820.211 and 820.221 of the Regulations, the applicant was required, at both the time of the application and the time of the decision, to meet the relevant criteria set out therein. Clauses 820.211 and 820.221 are respectively 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)has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(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 satisfies 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 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.
(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 of 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.
Relevantly, the applicant had to establish: (a) that the applicant was the spouse or de facto partner of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen; and (b) if the applicant was not the holder of a substantive visa, that he relevantly satisfied the criteria in clauses 3001, 3003, and 3004 of schedule 3 to the Regulations, unless the Tribunal was satisfied that there were compelling reasons for not applying those criteria.
Under clause 820.211, the term “de facto partner” is to be considered in the light of the definition of such term in sections 5CB(1) and (2) of the Migration Act 1958 (‘the Act’), which sections are as follows:
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
Regulation 1.09A of the Regulations sets out the relevant matters to be taken into account for the purposes of this matter and are as follows:
De facto partner and de facto relationship
(1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
Note 1: See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2: The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
As to the assertion by the applicant in ground 1 of the application for review, the findings relied upon by the applicant, as asserted, do not go to any relevant jurisdictional fact - namely the Tribunal’s state of satisfaction as to the applicant’s compliance with the visa criteria - because the findings are not “so integral to the Tribunal’s finding of jurisdictional fact that, without those findings, the Tribunal would not have reached its state of satisfaction with respect to the applicant’s claims”. [1] That is so because the findings in question were findings made consequent upon a consideration of the whole of the evidence by the Tribunal and its consideration of the regulation 1.09A(3) criteria, as well as the Tribunal’s assessment of all of the circumstances of the relationship as required by regulation 1.09A(2). The Tribunal was entitled to look at all of the evidence when reaching its decision, including matters which went to its overall state of satisfaction as to the correctness of such a decision.
[1] CRK15 v Minister for Immigration & Border Protection [2018] FCCA 1475 at [44]
The Tribunal found that evidence relating to the sponsor and the applicant having joint responsibility for the payment of utilities and car insurance, as well as undertaking joint travel, together with the recording of the applicant and the sponsor as spouses for the purposes of superannuation and tax, were matters which were taken and actioned by the applicant and the sponsor for the purpose of the applicant achieving a visa outcome.
The Tribunal examined whether the parties were in a de facto relationship. It dealt with the question of joint liabilities of each of the applicant and the sponsor, and the circumstances in which those joint responsibilities occurred. It was entitled to find, as it did at [19] of its reasons, that shared household expenses occurred in a manner reflecting a house share arrangement rather than a de facto relationship. The Tribunal found that the applicant and the sponsor had no assets or liabilities in common, had not pooled their financial resources, and had no legal obligations owed to the other party. The Tribunal found that the financial aspects of the relationship were not indicative of a genuine de facto relationship.
The Tribunal considered the nature of the household asserted by the applicant and the sponsor to support the applicant’s claims. The facts referred to by the Tribunal in [20] – [24] inclusive of its reasons did not convince the Tribunal that the parties had established and managed a joint household as a genuine de facto couple. It properly dealt with the issues before it when considering that aspect of the applicant’s claims.
As to the social aspects of the relationship, the Tribunal noted that it gave little weight to declarations or submissions presented to it in respect of that aspect of the applicant’s claim. It found that such declarations and submissions were general in nature, and that the wording reflected an approach designed to result in a visa outcome for the applicant. It recorded at [27] of its reasons that the sponsor had not spoken to any member of the applicant’s family in India. It also recorded that the applicant had had no contact with his family since 2008.
It was recorded by the Tribunal at [28] of its reasons that the applicant was evasive and non-responsive when asked questions concerning his options after he had ceased his studies in 2008. The Tribunal was not satisfied with the explanations given to it by the applicant. There was no recognition of the applicant’s relationship with the sponsor by any member of the applicant’s family in India.
At [29] of its reasons, it was noted by the Tribunal that, though the applicant had lodged a protection visa application on the basis that he feared harm from his father if he was to be returned to India, the applicant acknowledged that, in fact, he had no fear that his father would harm him. When asked why he had lodged a claim for a protection visa that was without substance, the applicant stated that his options to stay in the country were limited and that his migration agent had told him to do so.
At [30] of the Tribunal reasons, it was recorded by the Tribunal that the applicant had shown himself prepared to flout Australia’s immigration laws by not meeting the requirements of his student visa, and by thereafter remaining in the country illegally for many years. It also noted that he was prepared to lodge an application for a protection visa without any foundation for doing so.
The Tribunal was not satisfied that the applicant had demonstrated that he was in a genuine relationship with the sponsor as opposed to one whereby the sponsor was, in effect, aiding him in his achieving a migration outcome. As to the nature of the commitment by the applicant and the sponsor to each other, the Tribunal accepted that, though the parties had shared a house for several years, and that, during that time, they had travelled together within Australia and provided each other with companionship and some emotional support, the Tribunal was not prepared to accept that that companionship and support had been in the context of a genuine relationship.
The Tribunal, based on all of the evidence, was not satisfied that the parties had a mutual commitment to a shared life together to the exclusion of others, or that they were in a genuine and continuing relationship. The Tribunal found that the requirements of section 5CB(2) of the Act and the criteria as set out in clause 820.211(2)(a) and clause 820.221 had not been met.
The Tribunal went on to consider whether, in the circumstances, the schedule 3 criteria ought to be waived. It was recorded at [41] of the reasons of the Tribunal that in order to satisfy criterion 3001 the application for the visa must have been lodged within twenty-eight (28) days of the relevant day, which was twenty-eight (28) days after the date of cancellation of his student visa on 10 December 2009. The Tribunal found, therefore, that the applicant had not satisfied criterion 3001. The Tribunal then went on to consider whether it ought to waive the requirements of criterion 3001 based upon any compelling reasons asserted by the applicant.
In that regard, it was asserted by the applicant that, if he was to be returned to India, then the sponsor would suffer physically and emotionally as a result. It was asserted by the applicant, in that regard, that the Tribunal made findings which were at odds with the evidence presented by the applicant to the Tribunal, and that, therefore, the Tribunal had failed to give proper, genuine and realistic consideration to the sponsor’s submissions. The applicant relied upon Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 in support of that proposition. The applicant also, in that regard, points to ground 4 of the application for review as a basis for the Tribunal having fallen into jurisdictional error.
At [48] – [54] of its reasons, the Tribunal did, in fact, examine matters relating to each of the claims made by the applicant concerning the impact upon the sponsor of his being removed to India. The Tribunal properly addressed issues surrounding the sponsor’s medical condition as well as the availability of family members to assist the sponsor in coping with her medical condition, much in the way that she had coped before she first met the applicant. It was noted that though the sponsor’s sister had moved out of the same home as that of the sponsor in July 2016, the sister, nevertheless, continued to live in Brisbane and was thereby able to have regular physical contact with the sponsor as well as contact per telephone.
The Tribunal dealt with the assertion that the sponsor had psychological problems, noting at [51] of its reasons that the sponsor acknowledged that it had not occurred to her to consult with a psychologist until she was encouraged to do so by the applicant. Her claims related to early childhood bullying.
At [54] of its reasons, the Tribunal recorded that it placed little weight on much of the material sent to it in support of the compelling reasons aspect of the applicant’s claims, because it was based upon self-reporting of the parties and, further, because the Tribunal was not satisfied that the sponsor suffered from a mental illness so as to render her incapable of living independently from the applicant, or returning to live with him in India.
The Tribunal also addressed other reasons advanced by the applicant as to why it might be considered a compelling reason for him to have the relevant schedule 3 criteria waived. For example, the Tribunal did not accept that the applicant faced any harm, or would otherwise be disadvantaged, if returned to India because of the relationship between himself and his father, or otherwise relating to the applicant’s statements that he could not re-integrate back into Indian society because he had no friends or family living anywhere in India apart from the town where his family lived. It did not find that there were compelling reasons to waive the criteria.
As to ground 3 of the application for review, the Tribunal took into account the applicant’s visa history, and his stated desire to obtain a migration outcome as being relevant to his motivation for entering into the relationship with the sponsor. The Tribunal appropriately dealt with issues relating to that migration history, and properly took matters into account when arriving at its overall decision.
It was otherwise asserted that the decision of the Tribunal was unreasonable. In circumstances where the Tribunal had closely examined all of the material before it, and has dealt with each of the assertions made on behalf of the applicant in his application for review, it cannot be said that the Tribunal did not properly address all of the issues before it.
It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. [2]
[2] See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR
611 at [130].
Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
[66]: This approach does not deny that there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76]: As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The application for review is without merit. No jurisdictional error has been established on the part of the Tribunal. The application for review is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 7 March 2019
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