Singh v Minister for Home Affairs
[2020] FCCA 608
•18 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 608 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary)(Class UK) visa – whether the Tribunal’s assessment and reasoning process was erroneous – whether the Tribunal acted unreasonably in not giving adequate weight to the health condition of the sponsor – whether the Tribunal failed to take a relevant consideration into account when determining the existence of a compelling reason – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.820.211 of Schedule 2, 3001 of Schedule 3 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 18 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Canberra |
| Delivered on: | 18 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Abbas, R & J Lawyers |
| Solicitors for the Respondents: | Ms Crawford, Clayton Utz |
ORDERS
The Applicant’s Application filed on 12 April 2019 be dismissed.
The Applicant pay the First Respondent’s costs in the sum of $7,467.00 as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 18 of 2019
| GURPREET SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
This is judgement in the matter of Singh v Minister for Home Affairs & Another. The applicant is an Indian national. The applicant first arrived in Australia on 21 June 2009 on a subclass TU-571 student visa. This visa was later cancelled on 12 March 2011. A decision to cancel the student visa was confirmed by the Administrative Appeals Tribunal on 20 December 2011.
The applicant remained in Australia unlawfully without any visa until 2 November 2015 when he was granted a bridging visa in relation to a subclass UB 602 Medical Treatment visa application. This application was later refused by a delegate of the Minister on 2 November 2015. The decision was subsequently affirmed by the Administrative Appeals Tribunal (the “Tribunal”) on 29 January 2016.
On 23 February 2016, the applicant made an application for the grant of a Protection (Subclass 866) visa, but later withdrew this application on 3 January 2017.
On 30 January 2017, the applicant lodged an onshore partner visa application which was deemed invalid on 9 February 2017.
On 20 February 2017, the applicant made another onshore visa application for a Partner (Temporary)(Class UK) visa, sponsored by his spouse, Ms Sharma, who is an Australian citizen. The application was refused by a delegate of the Minister for Immigration and Border Protection on 25 May 2017.
The applicant sought merits review with the Tribunal. Following a hearing on 22 January 2019, the Tribunal, in a decision dated 18 March 2019, affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant now seeks judicial review of the Tribunal’s decision.
The Tribunal Decision
At paragraph 2 of its decision, the Tribunal notes that the delegate refused the application based on the applicant not satisfying the Schedule 3 criteria. As a result, he did not meet clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
At paragraphs 10 and 11, the Tribunal noted the visa application for a Partner (Temporary) (Class UK) visa had not been made less than 28 days since the applicant held a substantive visa. The last time the applicant held a substantive visa was on 12 March 2011. As a result, the applicant did not satisfy criterion 3001.
As the Tribunal found that the applicant did not meet the relevant Schedule 3 criteria, it then proceeded to consider whether there were compelling reasons for not applying that criteria. The Tribunal notes that the expression “compelling reasons” is not defined for these purposes.
However, the reasons must be “sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding of waiving the required criteria” (see MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at paragraph [10]).
At paragraph 15, the Tribunal considers the information provided by the parties as to the genuine nature of their relationship and the claim that they had been in a de facto relationship since 2011. The Tribunal notes there was little evidence before it about the different aspects of the parties’ relationship such as to substantiate the claim. The Tribunal was not satisfied that the longevity of the relationship was by itself a compelling reason not to apply the Schedule 3 criteria.
At paragraphs 16 and 17, the Tribunal considered various aspects of the sponsor’s health. This included that she has been diagnosed as having mixed anxiety and depression and an adjustment disorder. The Tribunal notes the claim that the impact of separating the sponsor from the applicant would be profound. The Tribunal also notes that it accepted that the sponsor and the applicant had been unsuccessful in conceiving a child that they were hoping to have. The Tribunal concluded that the sponsor’s health conditions were not compelling reasons in terms of the Schedule 3 criteria. While sympathetic to the parties’ difficulties in conceiving, the Tribunal again, did not see this as being a compelling circumstance.
At paragraph 19, the Tribunal considers claims of particular hardship were the parties required to separate. The Tribunal notes that although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, even after considering that the parties claimed interdependency, the parties did not satisfy the Tribunal that separation for some time was a compelling reason not to apply the Schedule 3 criteria.
At paragraphs 20 onwards, the Tribunal considers various claims put forward by the applicant including that he would be vulnerable returning to India.
At paragraph 23, the Tribunal notes the sponsor’s claims that if the applicant were to depart Australia he could be absent for a period of two to three years. The Tribunal notes that whilst understanding the parties’ actions may well have made them fearful, they were made in full knowledge of the applicant’s immigration status in Australia. The Tribunal did not consider that these were compelling circumstances.
At paragraphs 24 and 25, the Tribunal notes additional material which was provided following the hearing. This related to an attempted suicide by the applicant. The Tribunal encouraged the applicant to seek assistance from health professionals during any time of stress but was not satisfied that the incident described was a compelling reason not to apply the Schedule 3 criteria.
At paragraph 30, the Tribunal considers the parties’ circumstances individually and as a whole with the broadest regard given to every aspect of their lives as presented in the evidence, but was not satisfied that this was sufficient to allow compelling reasons to cause the Tribunal not to apply the Schedule 3 criteria. Accordingly, the Tribunal affirmed the delegate’s decision.
Grounds of Application
There were four grounds relied upon in the application before the Court. They are as follows, verbatim, without particulars:
(1)The Tribunal’s assessment and reasoning process of the compelling reasons was erroneous.
(2)The Tribunal acted unreasonably in not giving adequate weight to the health condition of the sponsor.
(3)The Tribunal gave undue weight to the applicant becoming an unlawful non-citizen before applying for the partner visa application.
I note here that ground 3 was not pressed before the Court.
(4)The Tribunal failed to take relevant consideration into account while determining the existence of the compelling reasons.
The Applicant’s submissions
In relation to Ground 1, it was submitted on behalf of the applicant that the Tribunal, in making an assessment of the compelling reasons in the applicant’s matter, drew a generalised parallel with applicants who apply from offshore for a partner visa. In the case of onshore visa applications, the applicant has the expectation that they had needed help and support and the physical presence of their partner during the time of the application process. It was submitted that any subsequent physical separation can have a serious emotional and financial consequence which can result in considerable hardship for both partners. And that was pressed in this case.
It was submitted that the applicant and his spouse both gave evidence and provided medical certificates and a psychologist’s report that the sponsor was suffering from physical and mental health issues and was dependent and reliant upon the applicant.
It was submitted that the Tribunal failed to accord any weight to the medical certificate and psychologist’s report. It was submitted that while the Tribunal acknowledges that if the applicant departs Australia, this may provide the parties with challenges and hardships, it is not open to the Tribunal to conclude this was not a “compelling” factor. It was submitted that any interpretation of a “compelling” reason does not have to be “exceptional or unusual”. It was submitted that any such interpretation of a “compelling” reason may raise the threshold so high that no additional circumstance could qualify as a compelling reason and this is not only unreasonable, but a failure to exercise the jurisdiction in an appropriate manner.
In relation to Ground 2, it was submitted that the Tribunal failed to give adequate weight to the fact that the sponsor suffered from stress, was placed on a mental health treatment program and diagnosed with mixed anxiety and depression and an adjustment disorder. It was submitted that there was evidence that should the parties separate, the sponsor’s mental health condition could worsen. Whilst these were relevant factors, it was submitted that the Tribunal failed to give adequate weight to these factors.
Ground 3 was not pressed.
In relation to Ground 4, it was submitted that the applicant and the sponsor are entitled to have the right to have a child. The Tribunal failed to take this fact into consideration whilst determining the existence of a compelling reason. It was further submitted that the length of the relationship between the parties was a compelling reason to waive the Schedule 3 criteria and the Tribunal fell into jurisdictional error by not giving any weight to this aspect of the matter.
It was submitted that the Tribunal failed to consider that the separation in this case may extend to an uncertain period of time and that the spousal relationship could breakdown or become considerably unstable as a result.
The First Respondent’s Submissions
The first respondent referred to the applicant’s submissions which notes the Tribunal’s acceptance of some of the applicant’s claims of hardship and the submission that “it was not open to the Tribunal to not find the challenges and hardships of the applicant and his spouse are a compelling factor” (paragraph [10] of applicant’s submissions). The first respondent submits that this “appears to be an assertion that the Tribunal should have accepted more of the applicant’s claims and that because it did not, the decision was unjust”.
The first respondent submits that this Court is not concerned whether or not a decision is unjust, it is only concerned as to whether a decision has been lawfully made (see Attorney-General v Quinn (1990) 170 CLR 1 at paragraph [39].
In relation to what might be a compelling reason, in Choi v Minister for Immigration and Border Protection [2018] FCA 291 per Allsop J at paragraph [7], it was said:
These “compelling reasons” must be sufficiently powerful to lead the relevant decision-maker to make a positive finding in favour of waiving the required criteria:
Allsop J goes on to say:
The decision-maker must engage in an active, genuine and intellectual process to satisfy the mandatory consideration of whether such compelling reasons exist.
In submissions, the first respondent set out the Department’s policy at 8.7:
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.
As to Ground 2, it was submitted that this application merely invites the Court to undertake merits review and substitute its own finding for that of the Tribunal. Insofar as the ground alleges that the Tribunal engaged in an illogical or irrational reasoning or that the decision was unreasonable, the fact that the applicant disagrees with the Tribunal’s findings does not give rise to jurisdictional error. It was submitted that the Tribunal’s findings were open to it for the reasons it gave.
In relation to Ground 4, the particulars appear to assert that the Tribunal failed to consider the likelihood that the sponsor’s medical and mental condition could worsen, that separation would considerably hinder and diminish the sponsor’s chances of conceiving and starting a family. Also, it failed to consider the right of the sponsor and the applicant to have a child. The first respondent submits that each of these decisions fail on a factual level.
Consideration
It is common ground between the legal representatives that because the applicant did not make an application within 28 days of the date of the substantive visa, he did not satisfy criterion 3001. It then fell to the Tribunal to determine whether or not there were “compelling reasons” not to apply the criteria in Schedule 3.
I am satisfied that at paragraph 13, the Tribunal correctly instructed itself as to the law and to what constitutes a compelling reason. The mere fact that an applicant disagrees with the findings of the Tribunal, even if it amounts to an emphatic disagreement, is not sufficient for a Court to find jurisdictional error. The Court cannot undertake merits review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at paragraphs [53] and [54]).
In relation to Ground 1, I am satisfied that the Tribunal carefully considered all of the applicant’s claims and while it was satisfied that the applicant and the sponsor may suffer some level of hardship, it correctly concluded that this hardship did not constitute a compelling reason.
I am satisfied that the findings of the Tribunal were open to it in the circumstances. Particularly, in view of the Department’s policy guideline set out above which indicates that it is common for partners to be separated for extended periods of time during visa processing offshore and this did not constitute a compelling reason.
In relation to Ground 2, I am satisfied there was nothing in the Tribunal’s reasoning which would indicate that the Tribunal’s findings were illogical or irrational or the decision is unreasonable. The test for unreasonableness is stringent and will only arise in rare cases.
Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of the matters or the evaluative judgements made by the decision-maker, (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at paragraphs [30] and [113]. I agree with the first respondent’s contention that the assessment of the cogency and weight of the evidence was a matter for the Tribunal (see SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at paragraph [15]). Accordingly, Ground 2 does not raise any jurisdictional error.
In relation to Ground 4, I am satisfied that each of the particulars set out in the application were considered by the Tribunal and found not to be a compelling reason. This ground fails at a factual level. The matters were considered and rejected.
Conclusion
Accordingly, I am satisfied that the application before the Court, as a whole, does not identify any jurisdictional error on behalf of the Tribunal. The application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 18 March 2020
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