Singh v Minister for Immigration
[2019] FCCA 2337
•27 August 2019 ((by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2337 |
| Catchwords: PRACTICE AND PROCEDURE – Application to amend grounds of review – consideration of factors in relation to proposed amendments – length of and explanation for delay and reason for amendments – nature and merit of the proposed amendments. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03 Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), ss.48, 65, 476 Migration Regulations (Amendment) 1996 (Cth) |
| Cases cited: ABX15 v Minister for Immigration & Anor [2015] FCCA 3003 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 BYM16 v Minister for Immigration & Border Protection [2018] FCA 326 Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479 Krajniw v Hunt [2017] FCA 483 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 Pietrobon v BMD Constructions Pty Ltd & Ors [2017] FCCA 1730 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 Tinkler v Elliott [2012] EWCA Civ 1289; [2012] NLJR 1323; [2012] All ER (D) 94; [2013] CP Rep 4 Tran v Minister for Immigration & Border Protection [2014] FCA 533 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 |
| Applicant: | KARAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 592 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 ((by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Ms E Anang |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Ms SJ Oliver |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The application for leave to amend the originating application filed 5 December 2016 be dismissed.
The originating application be adjourned to a directions hearing on a date to be fixed before a Judge of the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 592 of 2016
| KARAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Karaj Singh (“Mr Singh”), seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 14 November 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the [then] Minister for Immigration & Border Protection, [now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs] (“Minister”) to not grant the applicant a Partner (Temporary)(Class UK)(Subclass 820) and Partner (Residence)(Class BS)(Subclass 801) visa (“Partner Visa”).
Before the Court is an application for leave to amend the grounds of review in the Judicial Review Application. The Minister opposes the application to amend.
Background
By way of short factual background:
a)Mr Singh, a citizen of India, arrived in Australia on 25 November 2008 on a valid student visa that ceased on 30 September 2012: Court Book (“CB”) 2 and 131;
b)on 10 December 2014 Mr Singh lodged the Partner Visa application naming his wife, Ms Bernessa Montgomery (“Ms Montgomery”) as his sponsor: CB 131;
c)on 6 February 2015 the Delegate refused to grant the Partner Visa on the basis that, first, Mr Singh did not satisfy cl.820.211(2)(d)(ii) of schedule 2 of the Migration Regulations 1994 (Cth) (“sch.2 of the Migration Regulations”) as he did not meet criterion 3001 of sch.3 of the Migration Regulations (and therefore did not assess criteria 3003 or 3004 of sch.3 of the Migration Regulations), and that, second, there was no compelling reason to grant the Partner Visa: CB 131-135;
d)on 10 March 2016 Mr Singh attended a hearing at the Tribunal, and on 11 March 2016 the Tribunal made a decision affirming the Delegate’s Decision not to grant Mr Singh a Partner Visa (“Earlier Tribunal Decision”): CB 239-251;
e)on 11 May 2016, consent orders were issued from this Court remitting the matter for reconsideration by the Tribunal following the judgment of the Full Court of the Federal Court in Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (“Waensila”): CB 252; and
f)Mr Singh attended a further Tribunal hearing on 18 October 2016, and on 14 November 2016 the Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Singh a Partner Visa: CB 290-305.
Before the Court
The procedural background before this Court is as follows:
a)Mr Singh, then unrepresented, filed the Judicial Review Application on 5 December 2016 stating one ground of review as follows:
The AAT did not assess my relationship with Bernessa when making its decision about compelling reasons. This is a jurisdictional error;
b)on 18 January 2017 a Registrar of this Court made orders (“Registrar’s Orders”) allowing Mr Singh an opportunity to file an amended Judicial Review Application, further supporting affidavit and an outline of submissions by 9 March 2017, prior to the matter being listed for hearing on 27 February 2019;
c)the hearing of the matter was relisted to 28 March 2018, however, the matter was then further relisted, for administrative reasons, to 14 May 2018;
d)on 30 April 2018, lawyers for Mr Singh came on the record for the first time;
e)the lawyers for Mr Singh proposed to file an amended judicial review application (“Proposed Amended Judicial Review Application”) and outline of submissions by 2 May 2018, and allow the Minister to file an outline of submissions by 9 May 2018, but the Minister did not consent to this course, as in compliance with the Registrar’s Orders the Minister had filed an outline of submissions in response to the Judicial Review Application on 23 April 2018;
f)in correspondence sent to Chambers and the Minister, Mr Singh’s legal representative provided an unfiled copy of the Proposed Amended Judicial Review Application, an affidavit of Mr Christopher Levingston sworn 2 May 2018 (“Levingston Affidavit”) annexing the Migration Amendment Regulations 2009 (No. 10), the Explanatory Statement to the Migration Amendment Regulations 2009 (No. 10) (“Explanatory Statement”) and an outline of submissions, and advised it would be seeking leave to rely on the documents when the matter came on for hearing; and
g)as the Minister opposed the Court granting leave to rely on the Proposed Amended Judicial Review Application, the hearing on 14 May 2018 was limited to determining whether leave to amend the Judicial Review Application in the terms of the Proposed Amended Judicial Review Application should be granted.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out the procedural history of Mr Singh’s application for a Partner Visa: CB 297 at [1]-[5];
b)stated the issue was whether there are compelling reasons not to apply the sch.3 criteria in the Migration Regulations: CB 297 at [9];
c)noted it was not in dispute that Mr Singh did not have a substantive visa at the time of the Partner Visa application, nor did he enter Australia as the holder of a Subclass 995 visa or special purpose visa: CB 297 at [11];
d)set out criterion 3001 of sch.3 of the Migration Regulations, that in order for it to be satisfied the application for the Partner Visa must have been lodged within 28 days of the relevant day: CB 298 at [12];
e)referred to Mr Singh’s migration history revealing that he arrived in Australia on a student visa which ceased on 30 September 2012, applied for a further student visa and subsequently withdrew the application, applied for a skilled visa which was refused, sought review of that decision from the Migration Review Tribunal which affirmed the decision to refuse Mr Singh a skilled visa, and found that for the purposes of this review the relevant day was 30 September 2012, and as the application was lodged on 19 December 2014 the Partner Visa application was not lodged within 28 days of the relevant day, and therefore Mr Singh did not satisfy criterion 3001 of sch.3 to the Migration Regulations: CB 298 at [13]-[14];
f)outlined the legal principles applicable to the term “compelling reasons”, and made particular note of what was said in Waensila, that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant's circumstances as a whole are to be taken into account: CB 298 at [16]-[19];
g)confirmed the materials it had before it to consider in determining the Partner Visa application, including claims and submissions from Mr Singh’s migration agent and the evidence given at the second hearing by Mr Singh and Ms Montgomery: see CB 298-299 at [21]-[33], and which was as follows:
i)Mr Singh was refused a skilled work visa for reasons outside of his control;
ii)Ms Montgomery depended on him for emotional support;
iii)Mr Singh was a fatherly figure to Ms Montgomery’s children and they love Mr Singh as he has a good stepfather-stepchild relationship with each of them;
iv)Mr Singh and Ms Montgomery are in a genuine relationship;
v)Ms Montgomery previously had depression, she would be heartbroken and would feel lost without her soul mate as they spend every day together and she would miss him if he had to return to India and apply for a Partner Visa offshore; and
vi)Mr Singh wanted to be able to visit his mother who was ill but he cannot because if he leaves Australia he will not be allowed to return to Ms Montgomery;
h)accepted that Mr Singh and Ms Montgomery were married in November 2014 and that they did not want to be separated, however, did not accept that any unhappiness resulting from separation, potentially for a limited period, was a compelling reason for not applying the sch.3 criteria under the Migration Regulations, given that this was a circumstance commonly experienced by other genuine couples awaiting the outcome of Partner Visa applications: CB 300 at [35] and [39];
i)was satisfied that Ms Montgomery’s children would miss Mr Singh if he were required to leave Australia, though noted that apart from photographs, there was no evidence provided to demonstrate that the children had formed strong relationships with Mr Singh during the two years he had been in a relationship with their mother sufficient to amount to a compelling reason: CB 301 at [43];
j)noted that no medical evidence had been provided in relation to Ms Montgomery’s previous depression, and found that although she may experience an increased sense of unhappiness more than another person might whilst separated from Mr Singh, this also did not amount to a compelling reason: CB 301 at [45]-[46];
k)found that Mr Singh had failed to provide any meaningful information as to why the refusal of his skilled work visa was a compelling reason, and accordingly did not accept that the refusal constituted a compelling reason: CB 302 at [48]-[49];
l)was not satisfied that Mr Singh had provided a satisfactory or meaningful explanation as to why his mother’s illness constituted a compelling reason: CB 302 at [51]-[52];
m)like the Delegate, refrained from undertaking a formal assessment of the relationship between Mr Singh and Ms Montgomery and made no findings as to whether they were in a genuine spousal relationship: CB 302 at [53];
n)considered the claims raised individually and cumulatively, and found that there were no compelling reasons for not applying the sch.3 criteria under the Migration Regulations, and therefore Mr Singh did not meet the requirements of cl.820.211(2)(d)(ii) of the Migration Regulations: CB 302 at [54]; and
o)affirmed the Delegate’s Decision not to grant Mr Singh a Partner Visa: CB 302 at [56].
Leave to amend
The Court has the power to allow amendments to applications pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Rule 7.01 of the FCC Rules provides as follows:
(1) At any stage in a proceeding, the Court … may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court … thinks fit.
(2) Subject to rule 7.03, the Court … may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
The Court notes:
a)in SZSRR v Minister for Immigration & Border Protection [2017] FCA 328 at [47]-[48] per Gleeson J the Federal Court observed as follows:
47. At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48. Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile: cf. Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66 (“Research in Motion”) at [21] to [22]; Wotton v State of Queensland [2015] FCA 910 at [59]. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding: cf. Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon”) at [98]; and
b)in ABX15 v Minister for Immigration & Anor [2015] FCCA 3003 (“ABX15”) at [20] per Judge Smith this Court held that:
…even if I accepted that the points sought to be raised by the amendment were either important or reasonably arguable (which I do not), I would refuse the application for leave to amend. I must use the power to allow an amendment in a way that enables the just, efficient and economical resolution of the proceedings and to avoid them being protracted. To exercise the power to allow an amendment in circumstances where there is no explanation given for a failure to comply with the Court’s directions and a very late application for amendment would, in my view, be an improper exercise of the power.
When determining whether the Court should exercise discretion pursuant to rr.7.01 and 7.03 of the FCC Rules to allow an amendment and leave to rely on the Proposed Amended Judicial Review Application, this Court should consider:
a)the nature and significance of the amendment to the applicant, and if it is in the interests of justice to grant leave to amend the application;
b)whether the party seeking the proposed amendment is not unnecessarily delaying proceedings, and whether an explanation has been given for any delay in making the amendment: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
c)whether the grounds for the proposed amendment would be “obviously futile”;
d)whether any injustice, with particular emphasis on the stage in which the proceedings are at, cannot be satisfactorily compensated for; and
e)the objectives of case management: Aon Risk at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
See: Pietrobon v BMD Constructions Pty Ltd & Ors [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] per Stone J; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 at [19] per Lucev FM.
This Court considered the issue of a late application to seek leave to rely on amendments in BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 (“BYM16”) at [6]-[9] per Judge Smith where the Court said as follows:
6. There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7. The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
8. There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
9. For those reasons, I refuse leave to amend the application. That said, I have also considered the merits of the proposed grounds and, although I would arrive at the same decision concerning leave if my view of the merits were different, the application to amend gains no strength from the proposed grounds.
An appeal from the refusal to give leave to amend in BYM16 was dismissed by the Federal Court: BYM16 v Minister for Immigration & Border Protection [2018] FCA 326.
Amendments
The Proposed Amended Judicial Review Application contains three grounds of review, however, Mr Singh abandoned the first of those grounds, and it is only grounds 2 and 3 that are pursued. Those grounds are set out at [34] and [44] below.
Consideration
Delay
At hearing Mr Singh’s lawyer tendered the Levingston Affidavit which, amongst other documents, contained the Proposed Amended Judicial Review Application at Annexure B. The Levingston Affidavit stated the date at which Mr Singh’s lawyers were formally engaged to act for Mr Singh was 27 April 2018, and that following a review of the matter Mr Singh’s lawyers determined that a Proposed Amended Judicial Review Application was necessary. Nowhere in the Levingston Affidavit are the the reasons for the delay in seeking the proposed amendment addressed or sought to be explained. No further affidavits were filed in relation to the reasons for Mr Singh’s delay in relation to the Proposed Amended Judicial Review Application.
At hearing Mr Singh (through his Counsel) submitted that:
a)his lawyers did not have any instructions as to the reasons for the delay or why Mr Singh did not file an amended Judicial Review Application within the time prescribed by the Registrar’s Orders;
b)as Mr Singh was self-represented at the time, he may not have been comfortable or confident in preparing or filing an amended Judicial Review Application;
c)there had been a significant amount of time that had lapsed since the amended Judicial Review Application was due to be filed in accordance with the Registrar’s Orders;
d)Mr Singh holds a bridging visa with no work rights and is unable to work, and that is the reason why he did not engage lawyers earlier to assist him to file an amended Judicial Review Application within the stipulated timeframe;
e)Mr Singh wishes to seek an extension of time to file an affidavit providing reasons for Mr Singh’s delay in filing the Proposed Amended Judicial Review Application; and
f)Mr Singh is suffering financial hardship.
At hearing the Minister submitted that Mr Singh was provided an opportunity to file and serve an amended Judicial Review Application and it is now almost 14 months past that date. The Levingston Affidavit states that the lawyers were engaged on the 27 April 2018, but there is no explanation given at all as to the reasons for the delay in their being engaged. At hearing it was said that it was due to financial hardship, but Mr Singh has had more than ample opportunity in which to file an amended Judicial Review Application and to obtain legal advice and did not do so until the eve of the hearing.
Relevant to these circumstances is the significant length of the delay in Mr Singh obtaining legal representation, namely that he filed the Judicial Review Application in December 2016, and although the initial hearing date was listed in 2019, this was then re-listed to March 2018. Mr Singh’s hearing was then moved to 14 May 2018, yet he did not obtain legal representation until 27 April 2018, just 17 days prior to the matter being heard. Mr Singh was notified by the Court in October 2017 of the matter being brought forward to a hearing on 28 March 2018, and was notified in January 2018 of the matter being moved to a hearing on 14 May 2018. The Judicial Review Application as it stood to be heard on 28 March 2018 would have proceeded on the single ground, and Mr Singh would not have been legally represented.
Mr Singh’s failure to seek to amend the Judicial Review Application is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, it proceeds on the false premise that legal advice and representation was necessary in order for Mr Singh to file an amended Judicial Review Application. Both this Court and the Federal Court have made it plain that there is no necessity or entitlement to legal advice or representation in migration judicial review proceedings in this Court.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 (“SZHTI”) the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 (“SZQRU”) at [24] per Katzmann J the Federal Court, citing relevant authority, observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court, citing SZHTI and SZQRU, observed that:
… there is no right to legal representation in migration proceedings in this Court …
and went on to observe that a lack of legal representation, including pro bono assistance, was not a basis for an adjournment of proceedings in this Court.
Although there is no right to legal representation in judicial review proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion such as the grant of leave to amend the Judicial Review Application: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J. It is noteworthy that in both MZZIV and ADN15 that the relevant delay (in those cases in the context of an extension of time application) was short, 11 days and considered by the Federal Court to be “not significant” in MZZIV at [1] and [5] per Mortimer J, and conceded to be “not substantial” and not prejudicial by the Minister in ADN15 at [30] per Chartlesworth J.
The Court has taken into account the fact that Mr Singh is self-represented, and has already noted the observations of the Federal Court in MZZIV at [5] per Mortimer J and ADN15 at [30] per Charlesworth J. In Tinkler v Elliott [2012] EWCA Civ 1289; [2012] NLJR 1323; [2012] All ER (D) 94; [2013] CP Rep 4 (“Tinkler”) at [32] per Kay LJ (Munby and Lewison LJJ agreeing) the Court of Appeal of England and Wales made the following comment (which has often been referred to with approval by the Federal Court) in respect of self-represented litigants seeking an extension of time:
I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person …
In Krajniw v Hunt [2017] FCA 483 (“Krajniw”) at [5] per Logan J the Federal Court observed as follows in relation to the application of the above passage in Tinkler:
5. A number of judges of this Court, including me, have regarded these sentiments as just as apt in relation to the practice of this Court: see Ejueyitsi v Bond University [2012] FCA 1514 at [16], a judgment of mine; Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at [26], McKerracher J; and Huang v University of New South Wales [2014] FCA 1337 at [26], Perry J.
In Krajniw at [8] per Logan J the Federal Court further observed that:
8. Mr Krajniw made reference to his lack of legal training. He is, I understand, an engineer by profession, although now retired. He also made reference to the demoralising effect upon him of the adverse judgment in respect of his application in the original jurisdiction. He further made reference to his impecuniosity. He is apparently reliant on a pension for his primary source of income. All of these are all too human considerations but they do not, in themselves, in my view, provide an adequate explanation for a delay which, even on a benign view, is of some 10 months duration. That said, if there were a compellingly arguable case for a grant of leave to appeal, that may well tell against an explanation for delay which was not terribly compelling.
In Tran v Minister for Immigration & Border Protection [2014] FCA 533 (where there was an 18 month delay) in finding the explanation for the delay to be neither adequate nor satisfactory the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:
33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].
38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
While it is unfortunate that Mr Singh could not obtain legal assistance, a lack of legal knowledge is a misfortune, not a privilege that one can use to seek indulgences or exceptions to what are otherwise the rules: Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479 at 481 per McHugh J.
Mr Singh also submitted that the delay was caused because he was suffering financial hardship. There is, however, no evidence of financial hardship before the Court, Mr Singh not having filed an affidavit, and the Levingston Affidavit not dealing with the issue of financial hardship.
Mr Singh’s assertion of financial hardship (without any evidence filed in support of that assertion) sits oddly with the engagement of lawyers on 27 April 2018. The lawyers’ disclosure and costs agreement is Annexure A to the Levingston Affidavit. It requires, for the commencement of work for Mr Singh that a sum of $8,300 be deposited in the lawyers’ trust account: Levingston Affidavit, Annexure A. There is simply no evidence as to how it is that Mr Singh came to be sufficiently in funds to pay the amount required to be paid into the lawyers’ trust account for the commencement of work on the judicial review proceedings in this matter. The Court further notes that the disclosure and costs agreement indicates that if the Proposed Amended Judicial Review Application were to be unsuccessful that Mr Singh would be required to pay the Minister’s costs, which are estimated in the disclosure and costs agreement to be between $5,000 and $8,000: Levingston Affidavit, Annexure A, Item 13. Again, there is no indication as to how it is that Mr Singh proposed to pay those costs if the Proposed Amended Judicial Review Application were to be unsuccessful.
It follows from the above, that the lack of legal advice or representation and the alleged financial position of Mr Singh do not provide a reason for the delay in bringing the application for leave to amend.
The Court must also be conscious of issues of case management, particularly in the Perth Registry of this Court where judicial resources are limited and the caseload is notoriously heavy: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 (“WZASX”) at [32] per McKerracher J. Thus, a delay of 14 months in the making of an application for leave to amend, which is excessive, is, in the Court’s view, sufficient of itself to warrant refusal of the application for leave to amend the Judicial Review Application.
The Court also observes that there is no evidence before it of any steps taken by Mr Singh, who was not working, during the period of 14 months, to ascertain whether or not any pro bono or community legal services or advice were available to him, and if he did, what steps were taken to approach such services in relation to his case. The Court is entitled to expect that an applicant who is serious about judicial review proceedings in this Court would take all available steps to obtain pro bono or community legal service advice, particularly where financial hardship is asserted, and to put evidence of the steps taken on affidavit before the Court.
This is, in all of the above circumstances, a case in which the delay, because of its length, and because of the lack of an adequate explanation for the delay, is such to warrant refusal of the application for leave to amend the Judicial Review Application: Tran at [38] per Wigney J.
Nature and merits of proposed amendments
In assessing the nature and merits of the Proposed Amended Judicial Review Application grounds the Court must bear in mind that these are judicial review proceedings and consequently:
a)the Tribunal Decision may be set aside upon judicial review if it involves jurisdictional error: Migration Act, ss.474, 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal Decision may be affected by jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300;
b)the Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
c)the applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Finding jurisdictional error is made difficult where the state of satisfaction, and the power to grant the Partner Visa, is conditioned upon the decision-maker reaching an opinion or state of satisfaction: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [8] per Gleeson CJ.
It is not for the Court, sitting to hear the Proposed Amended Judicial Review Application, to engage in merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the Court must be careful not to cross the line between judicial and merits review when determining if a jurisdictional error has occurred, and especially so where the Tribunal has made a subjective discretionary decision that “compelling reasons” do not exist.
Ground 2
Ground 2 is as follows:
2. The application is infected by jurisdictional error in that the second respondent misapplied the policy formulated by the First Respondent in determining what might properly constitute “compelling reasons” within the contemplation of criterion 820.21192)(d)(ii) of the Migration Regulations 1994 (‘the Regulations’).
Particulars
The policy formulated by the first Respondent is wholly ultra vires the Migration Act 1958 (‘the Act’) and the Regulations. The policy attempts to limit in an impermissible way, the facilitative nature of the amendments to section 48 which permitted the substantive application (820/801) in the statutory framework of the Migration regulations and in particular the facilitative nature of the “concession’ embodied in schedule 3 in accordance with criterion 820.211(2)(d)(ii).
The nature of the proposed new ground 2 asserts that the Tribunal misapplied the PAM3 Policy in determining what might properly constitute compelling reasons within the contemplation of cl.820.211(2)(d)(ii) of the Migration Regulations and suggests that the PAM3 Policy was “wholly ultra vires” to the Migration Act, and in particular s.48(1A) of the Migration Act which provides as follows:
48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1A) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen's behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
The PAM3 Policy is not a binding document, and is no more than a procedural and policy guideline to officers applying the Migration Act and the Migration Regulations. In El Ess & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J the Federal Court said that:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
In Drake v Minister for Immigration & Ethic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577; (1979) 2 ALD 60, ALR at 590 per Bowen CJ and Deane J it was said that:
…The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament…
…It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
Mr Singh conceded that he did not satisfy criterion 3001 of sch.3 of the Migration Regulations: Applicant’s Submissions at [29], and therefore he was required to satisfy the Tribunal there were compelling reasons for not applying the criterion, and if not so satisfied the decision must be one to refuse the Partner Visa: Migration Act, s.65(1)(b).
The Tribunal did not confine its consideration to the PAM3 Policy. It considered authorities of the Federal Court and the Full Court of the Federal Court, which were binding on it, as to what “compelling reasons” would mean, and properly instructed itself as to the test it had to apply.
In the Tribunal Decision under the heading “Compelling reasons” the Tribunal referred at CB 298 at [17]-[18] to:
The expression 'compelling reasons' is not defined for these purposes. However, the reasons should 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 in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24] and
The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant's circumstances as a whole are to be taken into account.
The only relevant reference made in the Tribunal Decision in relation to Departmental policy is at CB 300 at [38]:
The Tribunal is mindful that earlier Departmental policy identified the existence of a long standing relationship as a compelling reason. In the Tribunal's view, that policy is more restrictive than, and not consistent with, the legislation. In particular, the Tribunal does not accept that a long-standing relationship constitutes a compelling reason in itself for the waiver. A long-standing relationship is one factor to be taken into account by the Tribunal, but it does not inevitably result in waiver.
The Court is of the view that even if Mr Singh were successful in establishing that the Tribunal did in fact rely on the PAM 3 Policy, in particular with reference to the phraseology used at CB 300-301 at [39]-[40] and [46], the Court would not be satisfied that Mr Singh would have an arguable case because there has been no particularisation in the Proposed Amended Judicial Review Application as to how the PAM3 Policy is inconsistent or “ultra vires” with the Migration Act or Migration Regulations. Accordingly, the mere assertion that it is “ultra vires” is not arguable.
The Tribunal applied the statutory criteria and performed its statutory task and in these circumstances the proposed amendment to ground 2 is not arguable. There is no merit in proposed ground 2.
Ground 3
Ground 3 is as follows:
3. The second respondent misunderstood the operation of cl 820.211(2) (d) (ii) of Schedule 2 of the Regulations and committed jurisdictional error, by erroneously finding (at Paragraph 38 of its decision record) that the existence of a long standing relationship in itself did not constitute a “compelling reason” for waiver of the Schedule 3 criteria. There is no statutory basis for the Tribunal’s conclusion.
Particulars
The determination as to what facts and circumstances may properly constitute “compelling reasons” is not determined by reference to the decision in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs, [2005] FCAFC 77, 141 FCR 285 which deals with a statutory bar arising under regulation 1.20J of the Regulations but rather to the explanatory memorandum underpinning the incorporation of the schedule 3 “compelling reasons” provisions discussed in the decision of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 and in particular the observations made by Griffiths J.
The nature of the proposed ground 3 asserts that the Tribunal erred when it found that Mr Singh’s long term relationship with Ms Montgomery in itself did not constitute a compelling reason for waiver of the sch.3 criteria in the Migration Regulations.
Mr Singh argued that the observations in Waensila and the Explanatory Statement are relevant to matters involving the determination as to what facts and circumstances may properly constitute “compelling reasons” within the contemplation of cl.820.211(2)(d)(ii) of the Migration Regulations, and that that issue ought not be determined by reference to the Federal Court judgments in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 (“Babicci”) or MZYPZ.
The Migration Regulations (Amendment) 1996 (Cth) (No 75 of 1996) introduced the discretion not to apply the sch.3 criteria of the Migration Regulations where there are compelling reasons. The discretionary power is designed to create maximum flexibility. In Waensila at [56] per Griffiths J it was said that:
The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer.
The Court notes that the Federal Court has sought to provide clarification of the term “compelling” in the context of providing reasons or circumstances:
a)in MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510 (“MZYPZ”) at [9]-[13] per Bromberg J the Federal Court said:
9 Clause 820.211(2)(d)(ii) is in the following terms:
(d) in the case of an applicant who is not the holder of a substantive visa – either:
(i) …
(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.
10 That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).
11 As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.
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.
13 The decision-maker needs to be “satisfied” that compelling reasons exist.
b)in Babicci at [23]-[25] per Tamberlin, Conti and Jacobson JJ a Full Court of the Federal Court said:
23. In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
24. There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
25. We do not consider that the definition of “compelling circumstances” adopted by the MRT deflected it from deciding the question it had to decide. It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him. It considered whether each of the circumstances alone or together “compelled” the exercise of the discretion. We can see no error in this, let alone jurisdictional error.
The Court is of the view that the Full Court of the Federal Court in Waensila primarily dealt with the issue of whether the consideration of compelling reasons was confined to the time of the application. Waensila did not consider the definition of “compelling reasons” or make any reference to the earlier authorities that have discussed what constitutes a compelling reason. In Waensila at [19] and [25] per Griffiths J it was said that:
19. Implicit in what I have already said is the importance, to my mind, in the task of statutory construction of the nature and purpose of the power conferred by cl 820.211(2)(d)(ii) on the Minister. Conferred on the Minister is a discretionary power to be satisfied that the specified criteria, being Sch 3 criteria 3001, 3003 and 3004, do not apply. It is a power, where the Minister is satisfied that there are compelling reasons for doing so, to effect the result that the visa applicant is not required to meet those criteria which would otherwise be required to be satisfied at the time of application.
25. …the question is whether, in determining whether or not the Minister was satisfied that there were “compelling reasons” for not applying certain criteria for a partner visa which have to be satisfied at the time of application, the Minister was confined to considering only “compelling reasons” which existed at the time of the application.
In MZYPZ at [19] per Bromberg J it was said that:
…the process required by the clause entails a duty to consider whether compelling reasons exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the Tribunal was bound to take into account. To comply with the duty conferred, the Tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives [the Tribunal’s] genuine consideration”: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57] (Stone, Foster and Nicholas JJ), citing Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (Gleeson CJ and Gummow J).
In circumstances where Waensila does not deal with the issue of what constitutes “compelling reasons”, and where that issue is directly dealt with by judgments of the Full Court of the Federal Court in Babicci and the Federal Court in MZYPZ, this Court is bound to follow the judgments in Babicci and MZYPZ: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev.
Nothing in the Explanatory Statement referred to in Waensila requires this Court to depart from what was said in MZYPZ and Babicci. The fact that a longstanding relationship is a matter which is strongly compassionate in nature, does not inevitably make it a compelling reason, and whether it is a compelling reason or not is a matter for the Tribunal to determine as part of its fact-finding function.
In the Tribunal Decision under the heading “Compelling reasons” the Tribunal dealt with the issue of “compelling reasons” at CB 298 at [17] and [19], and said as follows:
17. The expression 'compelling reasons' is not defined for these purposes. However, the reasons should 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 in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24].
19. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant's circumstances as a whole are to be taken into account.
Consequently, it is clear that the Tribunal applied the correct test when considering whether there were compelling reasons justifying the waiving of the sch.3 criteria of the Migration Regulations.
The course of reasoning followed by the Tribunal was as follows:
a)it considered the evidence that Mr Singh and Ms Montgomery were living together and did not want to be separated: CB 299 at [27];
b)it accepted that Mr Singh and Ms Montgomery met on 20 September 2014, commenced a committed relationship on 14 October 2014, and married on 21 November 2014: CB 300 at [35];
c)it accepted that the length and nature of a relationship are factors that may be taken into account as part of the consideration whether compelling reasons exist to exercise the discretionary waiver: CB 300 at [36];
d)at the time of the application Mr Singh and Ms Montgomery had only been married for 29 days and at the date of the Tribunal Decision they had been married for nearly two years: CB 300 at [37];
e)it was mindful of earlier Departmental policy which identified the existence of a long-standing relationship as a compelling reason: CB 300 at [38], but did not accept that a long-standing relationship constitutes a compelling reason in itself for waiver, and that it is but one factor to be taken into account, and does not inevitably result in waiver: CB 300 at [38] and 301 at [40]. This is entirely consistent with the observations in Waensila at [2], [18] and [56] per Griffiths J, that the discretionary power is designed to create maximum flexibility; and
f)it accepted that genuine couples who are separated whilst awaiting the outcome of a Partner Visa application will generally be unhappy, but that this unhappiness, potentially for a limited period, is not a compelling reason: CB 300 at [39].
It is evident therefore that the Tribunal did consider the length of the relationship between Mr Singh and Ms Montgomery, however, it was not satisfied that the nature or length of Mr Singh’s and Ms Montgomery’s relationship was sufficient to constitute a compelling reason for waiver: CB 301 at [40] and 302 at [53]. As the Tribunal observed at CB 301 at [40]:
…In any event in the Tribunal's view the existence of a genuine or long relationship does not in itself constitute compelling circumstances for waiver of Schedule 3 criteria. This is because a genuine relationship forms the basis of all partner visa applications.
The Tribunal considered Mr Singh’s further evidence of compelling reasons to waive the criterion in sch.3 of the Migration Regulations, namely:
a)the assertion that Ms Montgomery had previously had depression: CB 300 at [33] and CB 301 at [45]-[46];
b)Ms Montgomery’s evidence that Mr Singh was her soul mate and that she would be heartbroken and lost without him: CB 300 at [31], and that her depression may return if Mr Singh had to leave Australia: CB 300 at [33]; and
c)the evidence as to the relationship that Mr Singh has with Ms Montgomery’s children: CB 300 at [30] and CB 301 at [41]-[43].
Ultimately, however, the Tribunal was not satisfied, after considering Mr Singh’s claims singularly and cumulatively, that there were compelling reasons for not applying the sch.3 criteria of the Migration Regulations in the circumstances of his case: CB 302 at [54].
For the reasons set out above it is evident that the Tribunal correctly identified the relevant issue and understood the test to be applied in determining whether or not there were compelling reasons.
The Court is of the view that it was open to the Tribunal to make the findings it did on the evidence before it. While reasonable minds might differ in the conclusions made (particularly given the subjective nature of the discretionary power being exercised by the Tribunal), the findings of the Tribunal were not ones which could be said to lack a logical connection between the evidence and the reasons of the Tribunal, nor are they ones to which no reasonable decision maker could have come: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248. In the circumstances, all that ground 3 seeks to do is to have the Court make alternative findings of fact in circumstances where the Tribunal has correctly applied the relevant test and made its own findings of fact, and, therefore, ground 3 seeks impermissible merits review contrary to longstanding principle: Wu Shan Liang, CLR at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ
In the above circumstances the proposed amendment to ground 3 is not arguable. There is no merit in proposed ground 3.
Prejudice
Mr Singh accepted that it is reasonable for the Minister to contend that he is prejudiced by the delay in the making of the Proposed Amended Judicial Review Application, albeit that his solicitors wrote to the Minister on 30 April 2018 (three days after they were instructed) and a copy of the Proposed Amended Judicial Review Application was then provided to the Minister, and the Minister therefore had 14 days before the hearing to consider the Proposed Amended Judicial Review Application: Transcript, p.7.
In the Court’s view the Minister will undoubtedly suffer some prejudice: this was conceded by Mr Singh’s Counsel at hearing: Transcript, p.7. To some extent that prejudice has already been suffered by reason of the Minister having to prepare to meet a case which was not then being run, and which was already listed for hearing, but did not proceed. There would of course be further prejudice if the Court were to grant leave to make the proposed amendments because the Minister would then have to prepare for a further case and incur the further expense of preparation and appearance at the further hearing. The prejudice suffered by the Minister is not, however, one which might be adequately compensated for by a costs order, as there is no evidence Mr Singh has the financial capacity to comply with any costs order (as was conceded at hearing by Mr Singh: Transcript, p.8). Any costs order might therefore be futile.
The fact that the Minister would be prejudiced by the Proposed Amended Judicial Review Application weighs against the exercising of the Court’s discretion to grant the proposed amendments.
Interests of justice
There is nothing in the facts of, or law applicable to, this matter which indicate that it would be in the interests of justice to grant leave to file the Proposed Amended Judicial Review Application. Further, case management considerations weigh against the grant of leave to make the proposed amendments: that is particularly so in circumstances where there has been a lengthy delay by the applicant which is unexplained in a Registry which is under significant pressure in terms of its case load, particular in migration judicial review matters: WZASX at [32] per McKerracher J.
Conclusion and orders
The Court has concluded that Mr Singh ought not to be granted leave to amend the Judicial Review Application. There will be an order accordingly.
The originating application will be adjourned to a directions hearing on a date to be fixed before a Judge of the Court. There will be an order accordingly.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 August 2019
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