Singh v Minister for Immigration
[2020] FCCA 3245
•30 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3245 |
| Catchwords: MIGRATION – Application for judicial review – temporary partner visa application – compelling reasons to waive criteria requirements in Migration Regulations 1994 (Cth) – application refused by Administrative Appeals Tribunal – unreasonableness – mental health – physical health – financial hardship – charity – totality – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations1994 (Cth), cl.820.211, cr.3001 |
| Cases cited: Tisdall v Webber [2011] FCAFC 76 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 ATT20 v Minister for Immigration and Border Protection [2020] FCCA 499 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Daneshpour v Minister for Immigration [2020] FCCA 879 |
| Applicant: | DINESH SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2815 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 28 August 2020 |
| Date of Last Submission: | 28 August 2020 |
| Delivered at: | Townsville |
| Delivered on: | 30 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Lena Hung & Associates |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2815 of 2018
| DINESH SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 August 2018, which affirmed a decision of a delegate for the Minister to refuse to grant the applicant a Partner (Temporary Class UK) visa (‘partner visa’).
On 12 March 2016 the applicant applied for a partner visa on the basis of a relationship with his sponsor. A delegate for the Minister refused to grant the visa in a decision dated 15 June 2016.
The applicant sought review of the decision by the Tribunal and appeared before the Tribunal on 2 August 2018. The applicant gave evidence, with the assistance of a Punjabi interpreter, and was represented by a registered migration agent. The Tribunal also heard oral evidence from the sponsor and a witness. The Tribunal affirmed the delegate’s decision on 27 August 2018.
The applicant filed this application for judicial review of the Tribunal decision on 20 September 2018 and relies upon an Amended Application filed on 15 July 2020 setting out three grounds.
Background
The applicant’s visa history in Australia is summarised at paragraph [10] of the Tribunal decision, to the effect that:
a)The applicant entered Australia on 13 July 2006 on a subclass 573 Student visa which ceased on 18 August 2006.
b)The applicant was granted a further visa, which ceased on 12 January 2012.
c)The applicant applied for a subclass VB-885 visa as a dependant spouse on 3 January 2012, the application that was refused on 24 July 2013. Despite the applicant no longer being in a relationship with his spouse of 2012 (see T70), this decision was appealed by the applicant to the then Migration Review Tribunal, which affirmed the refusal on 21 May 2014. The applicant sought judicial review of the decision in this court on 16 May 2014, the decision was upheld on 15 October 2015. The applicant sought judicial review in the Federal Court of Australia on 15 October 2015 and the decision was upheld on 15 February 2016.
The applicant applied for the visa that is the subject of these proceedings (a partner visa) on 12 February 2016, over four years after he last held a substantive visa. As a result the applicant did not meet the requirement set out in clause 820.211(d)(ii) of Schedule 2 of the Migration Regulations1994 (‘the Regulations’) (read with Criterion 3001 set out in Schedule 3 of the Regulations), and therefore had to show ‘compelling reasons’ for not applying the criteria to his application, or be required to leave Australia and apply from offshore.
Tribunal decision
The applicant had previously submitted a request that the delegate waive the criteria requirements that applied in his category of application. The delegate found the applicant did not provide compelling reasons and so did not waive the criteria requirements.
The Tribunal invited the applicant to present evidence and argument as to any compelling reasons that might be considered for waiving the Schedule 3 criteria. The applicant relied upon reasons related to the health of the sponsor’s family members (her sister and mother) as well as the sponsor’s mental health and the applicant’s physical health.
The Tribunal subsequently affirmed the delegate’s decision finding that there were not compelling reasons for not applying Schedule 3 criteria and that the applicant did not meet the requirements of cl. 820.211(2)(d) of Schedule 2 of the Regulations.
Injuries of Sponsor’s sister
The applicant submitted that his sponsor’s sister was involved in a serious motor vehicle accident in October 2014, which caused long term physical injuries. The applicant submitted that he and his partner, the sponsor, provide care and assistance, such as shopping, housework and taking her to appointments (at paragraph [20] of the decision). The applicant also submitted that the sponsor’s sister was trying for a child via In Vitro Fertilisation procedures at the time. The Tribunal accepted that the sponsor’s sister suffers some loss of function as a result of the accident: see paragraph [24] of the decision.
However, the Tribunal also noted that the sister’s motor vehicle accident occurred nearly four years ago (at paragraph [21] of the decision) and that:
a)the sponsor’s sister had since returned to her previous employment; and
b)the sponsor’s sister resides with her husband (and notes that although the sponsor’s sister’s husband has a shoulder injury, he would still be able to assist his wife): at paragraph [24] of the decision.
The Tribunal did not consider the care for the sponsor’s sister to be a compelling reason to waiver the Schedule 3 criteria, it also noted there is no reason why the sponsor could not continue to provide care and support to her sister: see paragraph [24] of the decision.
Needs of the Sponsor’s mother
The applicant submitted the sponsor’s mother is elderly and has experienced a range of health issues that give rise to a compelling reason to waiver Schedule 3 criteria for his application. The applicant set out that his mother-in-law suffers from osteoporosis, heart tissue damage, high blood pressure and psychological stress related to the sponsor’s sisters accident related injuries (as set out above): see paragraph [25] of the decision.
The applicant submitted that the deterioration of the sponsor’s mother’s condition required care and support from him and his sponsor. The applicant described the support as assistance with travel, taking the mother to medical appointments and assisting her with household chores.
The Tribunal accepted the applicant and sponsor provide assistance to the sponsor’s mother, but did not consider this to be a compelling reason to waive the Schedule 3 criteria: see paragraph [26] of the decision. Similar to the sponsor’s sister’s circumstances, the Tribunal found there was nothing to prevent the sponsor continuing to offer assistance even if the applicant is required to depart Australia to lodge a partner visa offshore. The Tribunal also considered that there are a range of resources available to the sponsor’s mother if necessary and noted in the oral evidence provided that the sponsor’s mother had not sought assistance of this kind or explored available options.
Sponsor’s mental health
The applicant submitted the death of the sponsor’s father in February 2016 had a ‘profound effect’ on the sponsor (causing her depression symptoms) and impact upon the family, which required an ‘immense degree’ of support: see paragraph [27] of the decision.
These circumstances, the applicant submitted, caused the sponsor significant mental health issues, which could be exacerbated should the applicant depart Australia. The applicant submits the sponsor has previously been diagnosed with depression and underwent two abortions which have weighed upon her emotional state and that she attended psychological sessions (in late 2016 or early 2017: see paragraph [34]) but ceased those sessions due to the associated costs: see paragraph [28] and [34] of the decision.
The applicant submitted a Mental Health Plan for the sponsor by her doctor (a General Practitioner) in March 2016. After the Tribunal hearing a new Mental Health Plan dated 6 August 2018 was provided to the Tribunal: see paragraph [29] of the decision.
The Tribunal accepted the death of the sponsor’s father had a significant impact on her and the family, causing the sponsor significant and genuine grief, but noted that the death occurred over two-and-a-half years prior and, whilst the Tribunal recognised long lasting grief after the loss of a parent is not unusual, it did not consider this a compelling reason to waive the Schedule 3 criteria: see paragraph [30] of the decision. The Tribunal was not convinced the applicant would be unable to provide support to the sponsor if he was compelled to depart Australia to lodge an offshore visa application.
In relation to the applicant’s submissions surrounding the sponsor’s mental health the Tribunal took into account the following (set out in paragraph [33] of the decision):
a)Correspondence received post hearing from the sponsor’s General Practitioner (‘GP’) Dr Z;
b)The GP’s referral to a specialist dated 1 August 2018 for ‘anxiety and depressive symptoms’;
c)The post hearing Mental Health Plan; and
d)Personal statements of the applicant and sponsor.
The applicant described the sponsor’s symptoms as including stress, overeating and putting on weight. The sponsor gave evidence that she visited her GP on 9 March 2016 and was referred to a psychologist whom she attended and indicated that her health was improving, but deteriorated again when the applicant’s visa was refused by the delegate in June 2016. The sponsor said the fear of losing the applicant has had an adverse impact: see paragraph [35] of the decision.
The Tribunal considered the sponsor’s Mental Health Plan in early 2016 and the plan made after the hearing in August 2018. It found the specific timing of the preparation of the more recent plan ‘curious’ and was of the opinion the documents were prepared for the purposes of the Tribunal review: see paragraph [37].
The Tribunal noted the applicant’s claim in relation to the sponsor’s condition of depression was based on a diagnosis by the local GP, Dr A. However, the Tribunal said that “in absence of any professional medical evidence from specialists confirming this diagnosis, the Tribunal is not prepared to accept on the evidence the sponsor’s claim of depression as a compelling reason”: see paragraph [38] of the decision. The Tribunal in effect found the GP diagnosis did not reflect specialist medical opinion in relation to the sponsor’s mental health, saying:
40. … The Tribunal considers the correspondence is likely reflective of the sponsor’s testimony to her GP rather than specialist, independent medical opinion.
The Tribunal found that the applicant could continue to support the sponsor remotely if she was to undertake the treatment plan recommended by the GP for cognitive behaviour therapy and psychotherapy treatment saying:
46. […] the applicant could continue to provide emotional support if the waiver was not applied. The applicant and sponsor have both attested to the strength of their relationship and their reliance upon each other. It is not unusual for couples to live separately for a period of time and that should not preclude the provision of emotional support, if this relationship was genuine.
In making a finding on the sponsor’s long term mental health problems the Tribunal said:
41. The Tribunal notes that despite the claims of long-term mental health problems, the sponsor did not consult a psychologist for a significant period of time. The applicant claims this was due to financial hardship. The Tribunal pointed out to the applicant that there are a range of programmes such as the Psychological Access+ service and were for individuals having difficulty accessing appropriate mental health (including psychology) support due to financial or other circumstances. The applicant claimed he was unaware of these services and had followed the advice of his GP to use Medicare services which eventually were exhausted. The applicant said that the sponsor did not seek any other Government assistance or charity. Given the applicant’s claim of the seriousness of the sponsor’s mental health as a compelling reason to waive the Schedule 3 criteria, the Tribunal finds it unusual that the sponsor has no specialist independent medical evidence diagnosing these issues. The Tribunal also finds it unusual that the sponsor did not make any visits to a psychologist for a significant period of time. The Tribunal accepts that the parties may have been financially stretched during this period. The Tribunal does not however consider that mental health services were unavailable to the sponsor for this reason. The Tribunal notes that the sponsor appears to have recommended mental health treatment in conjunction with the Tribunal’s hearing and consideration of evidence concerning the applicant’s review.
The Tribunal considered the sponsor’s claim that her depression leaves her exhausted and that ‘she will give in to self-harm easily’ concluding:
46. […] the sponsor’s recent Mental Health Plan stated that the applicant had twice in the last 2 months fleetingly thought of suicide but had no intent (T1, Folio.208). Her previous Mental Health Plan supplied by the applicant to the Department as part of his application assessed the sponsor had no suicidal ideation or intent. (D1, Folio.74). There is no history of previous self-harm before the Tribunal.
The Tribunal considered there was no evidence before it that the sponsor’s employment in her contract at the University of Melbourne had suffered due to her mental health: see paragraph [44] of the decision.
Ultimately on the issue of the sponsor’s mental health, the Tribunal concluded:
47. […] Given the paucity of independent, specialist professional medical opinion concerning the claimed mental state of the sponsor, the Tribunal is not compelled to waive the Schedule 3 requirements for a Partner visa for these reasons. The Tribunal furthermore notes there is little corroborative evidence beyond the correspondence from the sponsor’s GP that refers to the role of the applicant in assisting the sponsor address her claimed depression. The sponsor has established a new Mental Health Plan, but given it was prepared after the hearing and after the Tribunal raised the matter, the Tribunal gives the Plan little weight in its assessment of waiving Schedule 3. The Tribunal furthermore notes that there is a wide range of medical, government and community support is available to the sponsor to assist her psychologically and emotionally address any mental health issues she may have whilst the applicant is offshore if this is necessary. The Tribunal notes that she has the support of her own family whilst the applicant’s Partner visa is processed offshore. The sponsor furthermore can avail herself of a wide number of forms of communication to be in contact with the applicant at any time when she sees fit. Cumulatively, the Tribunal is not satisfied that the claims concerning the sponsor’s mental health and the support of the applicant represent a compelling reason to waive the Schedule3 criteria.
Applicant’s health and financial hardship
The Tribunal noted the applicant’s submissions in relation to his own health and physical injuries and considered how these would impact his ability to provide assistance.
The applicant submitted that he was involved in a serious motor vehicle accident on 20 April 2017 while working as an Uber driver, in which he sustained a concussion and a musculoskeletal injury, from which he is still rehabilitating: see paragraph [48].
The Tribunal made the following finding in relation to the applicant’s injuries and recovery:
58. The Tribunal does not however consider the applicant’s injuries constitute a compelling reason for it to waive the Schedule 3 criteria. The applicant in his statement claims it would be detrimental for him to depart Australia as his health is at a critical point in time. He states that he requires ongoing physiotherapy sessions and without those he may incur long-term injuries. He also states he needs to see his orthopaedic surgeon every six months. The Tribunal accepts the applicant desires to continue his rehabilitation. The Tribunal notes that the applicant’s health has been improving. The Tribunal notes that the physiotherapist’s report of 17 May 2018 (T1, Folio.193) states that the applicant ‘is gaining good recovery with physiotherapy treatment’. The physiotherapist at that time recommended the applicant undertake a further 3-month gym and swim program to achieve the goal of gaining strength in core muscles for normal everyday living; avoid any flair ups in the future and stand and sit for an hour with minimal difficulty. The Tribunal accepts that the applicant continues to encounter some pain and challenges from his injuries. The Tribunal notes that he has now returned to employment. The Tribunal is of the opinion that the applicant would be able to avail himself of physiotherapist appointments as appropriate in India whilst his Partner visa was being processed. The Tribunal is of the opinion he would be able to consult an orthopaedic surgeon whilst he was in India at this time. The applicant and sponsor have both claimed the applicant would be unable to obtain the same or similar level of treatment in India but the Tribunal considers this claim to be speculative. The Tribunal is not convinced that the applicant will be unable to obtain appropriate and ongoing medical and rehabilitation support whilst his Partner visa is processed.
The applicant also described financial hardship in oral evidence, summarised as follows:
48. […] The applicant has stated that he and the sponsor have a large outstanding debt on their utility bills due to the financial strain they have suffered. The applicant submits that to separate the applicant from the sponsor would cause substantially more issues for them due to the costs of supporting the applicant’s overseas living expenses on top of their already unstable financial position in Australia.
On the issue of financial hardship, the Tribunal made the following finding:
50. […] The Tribunal notes that the sponsor is currently earning about $2,000 a fortnight at the University of Melbourne. Whilst her current agreement is due to end in November, the sponsor stated that her position would be reviewed at that time. Even if the agreement is not renewed, the Tribunal notes that the sponsor has a good work history with solid experience in the university sector at both the University of Melbourne and Swinburne University. The Tribunal sees no reason why the sponsor would not be able to obtain gainful employment at the end of her existing agreement.
The Tribunal further considered the applicant’s claim in relation to travel:
62. The applicant has claimed that he is currently not fit to travel on any international flights on account of his injuries. The applicant however has presented no evidence to corroborate this claim.
Having considered all of the above circumstances the Tribunal affirmed the delegate’s decision to refuse the application on the ground no compelling reasons were provided to waiver the Schedule 3 requirements relevant to the application.
Grounds of Review
Ground One
The first ground, set out in the Amended Application filed on 15 July 2020 is as follows:
The Tribunal’s decision was legally unreasonable, or arrived at through a legally unreasonable process of reasoning.
Particulars
The aspects of the reasoning which were unreasonable were that:
a. the financial circumstances of Mr Singh and his wife were not compelling, because the couple could rely on 'charity ';
b. the written evidence that Mrs Singh was suffering from depression could not be accepted, because it appeared in a report from a general practitioner and was not corroborated by ‘any professional medical evidence from specialists confirming this diagnosis’;
c. ‘little weight’ should be given to an August 2018 mental health plan on the basis that it was ‘prepared after the hearing’;
d. there was ‘a range of programmes such as the Psvchological Access+ service’ under which the Tribunal said individuals could access free or subsidised mental health support due to financial circumstances.
I turn to consider these particulars according to the two sub topics.
‘Charity’ issue
The word ‘charity’ appears in two different paragraphs of the Tribunal’s reasons in the following contexts:
26. […] The Tribunal furthermore notes that there is a range of government, welfare and charity assistance available to the sponsor’s mother as necessary. The applicant said in oral evidence the sponsor’s mother has not sought any assistance of this kind. The Tribunal notes that the sponsor conceded in oral evidence that they had not explored what options in terms of government and charities might be available. The Tribunal accepts that the sponsor’s mother is elderly and has a range of health problems. The Tribunal does not however consider these matters, plus the assistance the applicant allegedly provides the sponsor’s mother, represents a compelling reason for it to waive the Schedule 3 criteria.
[…]
41. … The Tribunal notes that despite the claims of long-term mental health problems, the sponsor did not consult a psychologist for a significant period of time. The applicant claims this was due to financial hardship. The Tribunal pointed out to the applicant that there are a range of programmes such as the Psychological Access+ service and were for individuals having difficulty accessing appropriate mental health (including psychology) support due to financial or other circumstances. The applicant claimed he was unaware of these services and had followed the advice of his GP to use Medicare services which eventually were exhausted. The applicant said that the sponsor did not seek any other Government assistance or charity.
[…]
47. … there is a wide range of medical, government and community support is available to the sponsor to assist her psychologically and emotionally address any mental health issues she may have whilst the applicant is offshore if this is necessary
[…]
52. … The Tribunal also notes that there is a range of government and charitable assistance available to the parties should financial hardship be a significant burden to their everyday lives.
(emphasis added)
The applicant argues that it is legally unreasonable to conclude that special reasons were not established because a person could rely upon ‘charity’.
The word ‘charity’, when used in isolation, evokes many thoughts, ranging from beggars with tin cups on street corners through to tax legislation where exemptions from Fringe Benefits Taxation apply to modern day charities and their thousands of employees. Few employees of modern charities (such as hospitals and social services providers) would consider themselves dependent upon ‘charity’ for their employment, nor would they be considered volunteers donating their time to charity, rather than employees protected by employment laws like employees of profit making companies. Many ‘charities’ in Australia receive millions of dollars in government funding in order to more effectively provide a large range of services to the community. For this reason it is important to consider the use of the word in the context of the particular decision.
In this case I am persuaded that the use of the term ‘charity’ in the context of the Tribunal’s references to ‘government assistance’ is intended to mean community support provided by non-government agencies, that are commonly in receipt of substantial government grants tied to the provision of such supports. I am not persuaded that the Tribunal member contemplated anything demeaning or out of the ordinary for those seeking assistance from non-government agencies (for example Relationships Australia and CentreCare who provide services to hundreds of thousands of Australians every year). Taken in appropriate context the findings of the Tribunal member in this regard are not legally unreasonable.
Mental health claim
The applicant argues that the Tribunal member rejected the applicant’s claim that his sponsor suffers from depression and that this was based upon a lack of ‘corroboration’. Importantly, the finding was not so simplistic. The relevant passages of the Tribunal decision read as follows:
38. The Tribunal notes that the applicant’s claim in his statement that the sponsor is suffering from depression is based upon the diagnosis from the local GP Dr [M]. (T1, Folio. 197). The claim is reflected in the correspondence of her GP Dr [Z] (T1, Folio. 210). In the absence of any professional medical evidence from specialists confirming this diagnosis, the Tribunal is not prepared to accept on the evidence the sponsor’s claim of depression as a compelling reason for it to waive the Schedule 3 criteria.
[…]
47. On the evidence before it the Tribunal does not consider the mental health of the sponsor – and the support the applicant provides the sponsor – represents a compelling reason for it to waive the Schedule 3 criteria. Given the paucity of independent, specialist professional medical opinion concerning the claimed mental state of the sponsor, the Tribunal is not compelled to waive the Schedule 3 requirements for a Partner visa for these reasons. The Tribunal furthermore notes there is little corroborative evidence beyond the correspondence from the sponsor’s GP that refers to the role of the applicant in assisting the sponsor address her claimed depression.
In the first passage it appears that the Tribunal member is noting that there is no formal diagnosis from a psychiatrist. A formal diagnosis within the framework of DSM-IV (or now DSM-V) would be significant evidence of the level of impairment that was being suffered. Importantly, the Tribunal goes on to consider the impact of the depression upon the day to day function of the applicant’s sponsor in the following paragraph, noting, for example, that the sponsor was then working as a ‘Programme Coordinator’ with the University of Melbourne, before reaching a conclusion in paragraph [47] of the decision:
47. On the evidence before it the Tribunal does not consider the mental health of the sponsor – and the support the applicant provides the sponsor – represents a compelling reason for it to waive the Schedule 3 criteria. Given the paucity of independent, specialist professional medical opinion concerning the claimed mental state of the sponsor, the Tribunal is not compelled to waive the Schedule 3 requirements for a Partner visa for these reasons. The Tribunal furthermore notes there is little corroborative evidence beyond the correspondence from the sponsor’s GP that refers to the role of the applicant in assisting the sponsor address her claimed depression. The sponsor has established a new Mental Health Plan, but given it was prepared after the hearing and after the Tribunal raised the matter, the Tribunal gives the Plan little weight in its assessment of waiving Schedule 3. The Tribunal furthermore notes that there is a wide range of medical, government and community support is available to the sponsor to assist her psychologically and emotionally address any mental health issues she may have whilst the applicant is offshore if this is necessary. The Tribunal notes that she has the support of her own family whilst the applicant’s Partner visa is processed offshore. The sponsor furthermore can avail herself of a wide number of forms of communication to be in contact with the applicant at any time when she sees fit. Cumulatively, the Tribunal is not satisfied that the claims concerning the sponsor’s mental health and the support of the applicant represent a compelling reason to waive the Schedule3 criteria.
In the second passage, the Tribunal is noting the weakness in evidence from the GP, that in many ways it merely recounts what the GP had been told, rather than what the GP observed.
I am not persuaded that the Tribunal member approached the issue through the lens of requiring corroboration, nor that a report from medical specialist was a necessary pre-requisite. Rather, the member first considered whether there was evidence from a mental health specialist, and then went on to consider the level of functioning of the sponsor. I am not persuaded that this demonstrates error on the part of the Tribunal member.
The third particular refers to the Tribunal’s assessment of the weight to be given to a Mental Health plan provided by Dr Z for the sponsor. The Tribunal said in the decision:
47. … The sponsor has established a new Mental Health Plan, but given it was prepared after the hearing and after the Tribunal raised the matter, the Tribunal gives the Plan little weight in its assessment of waiving Schedule 3.
The applicant argues that it was irrational to ‘reject’ the evidence of the health care plan. The applicant points out that the Tribunal had been told at the hearing that there was an appointment with a GP in the week following the hearing for a reassessment: see T52.39-44 and T68.45-69.3. In the context of the case, and in particular, given that the previous Mental Health Plan was years (not months) before, I am not persuaded that it was legally unreasonable for the Tribunal member to form the views set out above.
The fourth particular is founded on the premise that reliance upon the availability of ‘Psychological Access+’ was legally unreasonable, as the “Psychological Access+ service' is a Sydney-based service, and there was no evidence before the Tribunal that Melbourne had any equivalent.” (paragraph [19] of the decision). As a result, the applicant argued that the Tribunal member had engaged in ‘speculation, guesswork or mere assumption’ (a phrase uplifted from the discussion in Tisdall v Webber [2011] FCAFC 76 at [128]).
The relevant passage in the decision (as set out above) states:
41. … The Tribunal pointed out to the applicant that there are a range of programmes such as the Psychological Access+ service and were for individuals having difficulty accessing appropriate mental health (including psychology) support due to financial or other circumstances. The applicant claimed he was unaware of these services and had followed the advice of his GP to use Medicare services which eventually were exhausted.
The reference to the services of Psychological Access+ was clearly a reference to the type of service available in the region to which the member was familiar. It does not appear to be a finding that the particular service was available to the applicant in Melbourne. Rather, it was an example to demonstrate the Tribunal member’s understanding that services of that type were generally available in the community. It is open to a Tribunal member to rely upon their own background knowledge of such matters. Importantly, in this case, the Tribunal member put the proposition to the applicant at the hearing and the applicant said that he had not sought out such assistance. The Tribunal member also accepted post-hearing submissions about other matters. If the applicant sought to challenge the Tribunal member’s proposition he had an opportunity to do so in post hearing submissions.
I am not persuaded that this particular shows a judicially reviewable error in the context of this case and the reference that was used as an example.
When stepping back and considering the decision as a whole, having regard to the various matters particularised, I am not persuaded that the reasons of the Tribunal member are legally unreasonable. The decision is a lengthy analysis of a wide variety of factors bearing upon a number of reasons raised by the applicant. I therefore find that this ground is not made out.
Ground Two
Ground two is set out as follows:
The Tribunal’s finding that it did not ‘consider that mental health services were unavailable’ to the Applicant’s sponsor for financial reasons was irrational or illogical in that it lacked any probative basis.
This ground was argued on the same basis as the fourth particular to Ground 1: in this respect it must fail for the same reasons.
In any event, there was evidence before the Tribunal that the applicant’s sponsor had full-time employment at a university, indicating not only a capacity to work but also an income from which to purchase services.
I therefore find that this ground has not been made out.
Ground Three
Ground three is framed as follows:
The Tribunal failed to give active intellectual consideration to the cumulative circumstances of the Applicant.
It is clear, as was set out in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 that:
12. In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
In this case the Tribunal considered each of the reasons raised by the applicant individually, finding that no individual reason was sufficient to satisfy the relevant test. The Tribunal member then said:
64. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
65. The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
The applicant argues that the Tribunal did not give cumulative consideration to the question of whether there were compelling reasons for not applying the criteria.
The applicant pointed to the apparently conclusory finding in paragraph [64] of the decision, set out prior to the consideration of the circumstances in ‘totality’ in paragraph [65] of the Tribunal decision. It is certainly infelicitous to have paragraphs [64] and [65] in reverse order to logic, however, I am not persuaded that this shows an error of the nature of the one alleged in the context of a busy Tribunal.
The substantive argument relates to the brevity of the reasons with respect to the totality of the reasons. In this respect the applicant relied upon two decision where the court found that such brief conclusions indicated a lack of active intellectual engagement with the issues:
a)In ATT20 v Minister for Immigration and Border Protection [2020] FCCA 499 (‘ATT20’) at paragraphs [75] to [79], Judge Barnes found that where a Tribunal member had only considered the various reasons individually and not cumulatively, that the decision maker had fallen into error. Although, as the Minister pointed out in submissions, in AAT20 the decision maker had assumed that the applicant would only have to return for so long as it took to process his visa application. This finding overlooked the fact that it would take 3 years for the applicant to complete his military service if he returned to his country of citizenship (see paragraph [70] of that decision). The Tribunal member also overlooked circumstances of the sponsor’s employment (see paragraph [72]). It appears that the failure to have regard to all of the circumstances pointed to the failure to have regard to the impact of military service; a point that may also have been expressed as a failure to have regard to significant evidence in the sense discussed in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317. It is therefore clear that there were a number of circumstances not properly considered by the decision maker in ATT20 when addressing each of the ‘reasons’ individually, which would have borne upon a cumulative consideration. These factors weighed against accepting the general statement of the decision maker that they had considered the matters separately and cumulatively: at paragraph [38].
b)In Daneshpour v Minister for Immigration [2020] FCCA 879 (‘Daneshpour’), there were many indications that the decision maker had considered each matter separately, as were enumerated in the judgment:
48. … I am not satisfied that the Tribunal undertook a cumulative assessment of the matters which were put forward to support a conclusion that compelling reasons were made out to waive the criteria otherwise to be applied. I accept the applicant’s submission that the Tribunal’s treatment of the reasons as separable is plain from its Reasons:
a) the Tribunal found that “a genuine relationship is not, necessarily in itself, a compelling reason” (emphasis added) [29];
b) the Tribunal found that the long-standing relationship was not alone a compelling reason not to apply the Sch 3 criteria: [32];
c) the Tribunal concluded that the sponsor’s health was not a compelling reason: [38];
d) the Tribunal found that the emotional hardship to the applicant did not amount to a compelling reason: [42];
e) in respect of the difficulties of the sponsor travelling to Iran the Tribunal stated “The Tribunal does not waive Sch 3 criteria on this basis”: [44];
f) the Tribunal was not satisfied the applicant’s military service obligations were “a sufficient reason to compel” the waiver of the criteria: [45].
Significantly, the decision maker had not expressly stated that they had considered the reasons argued by the applicant ‘as a whole’ (see paragraph [49]), nor had they considered all of the matters relied upon: see paragraph [55].
In the present case the Tribunal member did make findings with respect to each of the matters relied upon by the applicant as a compelling reason at the conclusion of the analysis with respect to each matter, and even parts of each matter raised, leading to 20 separate occasions where the member found that a factor was not a ‘compelling reason’: see paragraphs [26], [30], [31], [32], [36], [38], [39], [41], [42], [43], [45], [46], [47], [53], [54], [55], [60], [61], [62], and [63] of the decision. A number of the 20 findings were with respect to parts of more general reasons, thus, for example, the Tribunal member expressly stated that:
47. […]Cumulatively, the Tribunal is not satisfied that the claims concerning the sponsor’s mental health and the support of the applicant represent a compelling reason to waive the Schedule 3 criteria.
Unlike the circumstances in both ATT20 and Daneshpour, it is not put in this case that there were facts or circumstances overlooked by the Tribunal member. Nor was it specifically put to the Tribunal member that the various factors combined or compounded in a specific way that would require further reasons beyond that set out in paragraph [64], as quoted above.
Ultimately the question is whether, on viewing the decision as a whole, there is a basis for drawing the inference that the decision maker did not consider the reasons given by the applicant ‘as a whole’ (sometimes expressed as being in ‘totality’ or ‘cumulatively’). The statement of the decision maker in paragraph [64] of the decision tells strongly against the argument of the applicant. Whilst the large number of findings as to specific matters indicate a focus upon the minutia of the various incidents of the applicant and his sponsor’s circumstances, the statement at paragraph [47] of the decision also shows an awareness and consideration of the need to consider not simply individual parts of the claim, but those parts cumulatively. It is not put that there was an interaction between the various matters that would call for specific comments in the reasons (nor were submissions made in this regard to the member). Ultimately I am not persuaded that the applicant has established that the member failed to carry out the task in the way that the member set out in paragraph [64] of the decision.
Conclusion
As the applicant has not established a ground for judicial review I must dismiss the application.
Costs should follow the event at the scale fee of $7,467.00.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 November 2020
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