Singh v Minister for Immigration
[2019] FCCA 335
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 335 |
| Catchwords: MIGRATION – Application seeking review of a decision of the Administrative Appeals Tribunal – whether there was jurisdictional error in applying the Schedule 3 criteria – whether there were compelling reasons to not apply the Schedule 3 criteria – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations1994 (Cth), Sch. 2 cl.820.211(2)(d)(ii), Sch. 3 item 3001 |
| Cases cited: An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 Gurung v Minister for Immigration & Anor [2018] FCCA 1649 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69; (2015) 231 FCR 1 |
| Applicant: | ARMARJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3384 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 December 2018 |
| Date of Last Submission: | 11 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva |
| Solicitors for the Applicant: | AI Strategic Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 1 December 2016 and as variously amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3384 of 2016
| ARMARJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 1 December 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 October 2016 which affirmed the decision of the Minister’s delegate to refuse a partner (temporary) (class UK) visa (“the partner visa”) to Mr Armarjit Singh (“the applicant”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”), and the applicant’s affidavit affirmed on 22 May 2017, annexing a copy of the transcript (“T”) of the hearing before the Tribunal.
Background
The applicant is a citizen of India. He arrived in Australia on 13 June 2007 as the holder of a student visa. He was granted further student visas, the last student visa (which for current purposes I note was a substantive visa) ceased to have effect on 12 January 2011.
The applicant applied for the partner visa on 4 September 2012 (CB 3 – CB 35). On 22 October 2013 the Minister’s delegate refused this application. The delegate found that the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”). This clause, amongst other things, required the applicant to satisfy criterion 3001 of Schedule 3 to the Regulations. That is, at the time of making his application, the applicant was required to be the holder of a substantive visa, or to make the application for the visa within 28 days of the cessation of the substantive visa. He was found not to hold such a visa at the relevant time. Nor was the application made within the 28 day period.
Further, the delegate was not satisfied that there existed compelling reasons for not applying the Schedule 3 criteria.
The applicant applied for review to the then Migration Review Tribunal on 8 November 2013 (CB 179). The Migration Review Tribunal affirmed the delegate’s decision. However, the applicant’s matter was remitted by this Court, by consent, to the Tribunal, because the Migration Review Tribunal’s decision was affected by legal error (CB 237 and [12] at CB 368).
The applicant appeared before the Tribunal at the hearing on 20 October 2016 ([16] at CB 369). The Tribunal also had before it a statement made by the applicant submitted to the delegate, a statement by the applicant to the Migration Review Tribunal, and two statements and additional documents submitted to the Tribunal. These for the most part addressed the issue of compelling reasons not to apply the Schedule 3 criteria.
The Tribunal found that the applicant did not make his application for the partner visa within 28 days from the last day he held a substantive visa. In that circumstance, the applicant did not satisfy criterion 3001 ([29] – [31] at CB 371).
The Minister’s written submissions provide a comprehensive and fair summary of the Tribunal’s consideration of whether there were compelling reasons for not applying the Schedule 3 criteria. These provide a useful background and context to understanding the applicant’s grounds, and the arguments in explanation and support of those grounds:
“9. The Tribunal correctly identified that it had to consider whether there were compelling reasons for not applying the Schedule 3 criteria, and noted that these could arise at any time, with reference to Waensila v Minister for Immigration [2016] FCAFC 32; (2016) 241 FCR 121 (CB 371 at [33]).
10. The Tribunal was not satisfied that the circumstances why the applicant did not hold a substantive visa, provided a compelling reason for not applying the Schedule 3 criteria (CB 371 at [34]-[36]).
11. The Tribunal found that the applicant’s claims that he could not return to India because his brother had threatened him for marrying a Christian, were inconsistent (CB 372 at [37]). The Tribunal did not accept that the applicant had been threatened by his brother or any other person in India or that he would have any difficulties returning to India (CB 372 at [40]). The Tribunal also noted that the applicant’s parents had provided statements in support of the application for a Partner visa and neither of them mentioned any objection by the applicant’s brother (CB 372 at [38]). Based on the applicant’s parents indicated support, the Tribunal found that if the applicant were required to return to India to lodge an application he would have the continuing support of his parents (CB 372 at [39]).
12. The Tribunal noted that it had not made any critical assessment as to whether the parties were in a genuine relationship (CB 372 at [41]). However, the Tribunal found it would need to be satisfied that particular aspects of the relationship provided a compelling reason for not applying the Schedule 3 criteria, and not simply the fact that the parties are in a genuine relationship (CB 372 at [42]).
13. The Tribunal considered the claim that as the parties were in a long-standing relationship this provided a compelling reason for not applying the Schedule 3 criteria (CB 373 at [44]). The Tribunal found that if the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered (CB 373 at [46]). The Tribunal considered all the circumstances of the parties’ relationship and whether it would provide a compelling reason for not applying the Schedule 3 criteria (CB 373 at [47]).
14. The applicant was unsure when the parties first started living together, but said it was after they married (CB 373 at [48]). The Tribunal also noted that applicant provided no explanation as to why the parties did not start living together prior to, or at least when they got married. The Tribunal found this called into question any claimed dependence on each other or commitment to the relationship (CB 373 at [49]).
15. The Tribunal found the fact that the sponsor was able to travel to be with her mother without the applicant for a period of time, also called into question any dependence that the parties have on each other (CB 373 at [50] and CB 375 at [62]). The Tribunal also indicated that the sponsor was capable of looking after her own affairs and taking her own medication (CB 373-374 at [51]).
16. The Tribunal noted that the applicant did not have work rights and as such the only income of the household had been that of the sponsor, or her Centrelink payments. The Tribunal found there was nothing to indicate that the sponsor was financially dependent on the applicant (CB 374 at [52]). The Tribunal also noted that although the parties claimed to have started a new lease, as the applicant had no income this would have been met by the sponsor, regardless of whether the applicant was in Australia (CB 374 at [58]).
17. The Tribunal was not satisfied that simply the fact that the parties want to start a new life together in Australia provides a compelling reason for not applying the Schedule 3 criteria (CB 374 at [53]).
18. When considering the length of the relationship, the Tribunal was not satisfied that anything in the length of the relationship or the nature of their relationship provided a compelling reason for not applying the Schedule 3 criteria (CB 374 at [54]).
19. The Tribunal found there was no information as to any dependence the sponsor or her mother would have on the applicant in light of the sponsor’s mother’s medical condition (CB 374 at [59]), noting that the applicant remained living on the Central Coast after the sponsor moved to be with her mother. The Tribunal found this indicated that the sponsor and her mother were able to make appropriate arrangements for her care and support without the need of the applicant (CB 375 at [60] and [62]). The Tribunal therefore found that the current condition of the sponsor’s mother was not a compelling reason for not applying the Schedule 3 criteria (CB 375 at [63]).
20. The Tribunal was not satisfied that the circumstances of the parties provided a compelling reason for not applying the Schedule 3 criteria, either individually or cumulatively, and therefore found that the applicant did not meet clause 820.211(2)(d)(ii) (CB 375 at [64] and [65]).”
[Error in the original.]
The Application to the Court
The applicant proceeded by way of a second amended application. The grounds are in the following terms:
“(1) The Tribunal made jurisdictional error in misunderstanding and misapplying the requirement to waive Schedule 3 criteria
Particulars
The Tribunal should have been satisfied based solely on the length of the relationship which is over two years (more than 5 years) that there was compelling circumstance based on the only two clear examples given in the Explanatory Memorandum. It made error not being not so satisfied. See CB 267, CB 101, [44]-[46] at CB 373 and [54] at CB374.
(2) The Tribunal made jurisdictional error in that it failed to carry out the statutory task it was required to carry out
Particulars
The Tribunal at [41] at CB 372 stated that it has not made any critical assessment whether, at that time of the application or at the time of the decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship.
Without making that assessment and the degree of the depth of that relationship the Tribunal simply could not have assessed the compelling circumstances properly because it is part of that assessment. See Transcript pg 2 In 35-36 & pg 5 In 33-34 for concerns and doubts.
(3) The Tribunal made jurisdictional error in that in applying Clause 820.211(2)(d)(ii) it failed to take into consideration the degree of genuine, continuing and exclusive relationship
Particulars
Although cl 820.211(2)(a) requires that the applicant and the sponsor to be in a genuine, continuing and exclusive relationship, this does not mean that the overall nature of that relationship is not to be considered in applying cl 820.211(2)(d)(ii).
The Tribunal erred by saying that only particular aspects of that relationship which must be considered. See [42] at CB372.
(4) The Tribunal erred by making the finding which was not open on the evidence provided by the applicant at the hearing
Particulars
At [49] at CB 373 the Tribunal stated that the applicant did not provide any explanation why he and the sponsor were living separately soon after the marriage.
The applicant did provide an explanation that is evident from the transcript provided with an affidavit. See CB 77, CB 91-92. See Transcript pg7 In 29-30, pg 7 In 48-49, pg12 In 22-23 and In 37-39 & pg 25 In 35-36 single room accommodation of mum.
Also the financial and work related problems trying to find an accommodation for both.
(5) The Tribunal made jurisdictional error in failing to take Aboriginality of the sponsor and her disadvantaged background and her special difficult circumstances in assessing compelling circumstances
Particulars
In considering compelling circumstances it was obvious to the Tribunal that the sponsor comes from a disadvantaged background being an aboriginal person and the Tribunal should have inquired into that and considered that as part of the compelling circumstances. See CB 106, 272, 273, 306, 308, 309 and 333.
(6) The Tribunal made jurisdictional error in failing to take the degree of support the applicant could provide to the sponsor and her mother who is suffering from cancer.
Particulars
The Tribunal failed to consider the support the applicant could provide while the sponsor is caring for her mother who is suffering from cancer. CB 333-334 and 361 & 362.
(7) The Tribunal denied procedural fairness to the applicant in that it conducted the hearing in English
Particulars
The Tribunal member preferred to speak in English and conducted the hearing in English and the applicant was not able to articulate his answers.
Transcript Pg 2 In 5-15.”
[Errors in the original.]
Before the Court
At the hearing before the Court, the applicant’s counsel advised that the applicant did not press grounds two, three and seven.
It is convenient to deal with the applicant’s grounds in the order in which they were addressed before the Court by the applicant’s counsel.
Consideration: Ground Four
Ground four asserts that the Tribunal made a finding which was not open to it on the evidence provided by the applicant at the Tribunal hearing.
The particulars directed attention to [49] of the Tribunal’s decision record (CB 373):
“49. There is no explanation as to why the parties did not start living together either when they decided to commit to a lifelong relationship with each other or immediately after they were married. The fact that they continued to live separately after they were married calls into question any claimed dependence upon each other or commitment to the relationship.”
The contention is that the Tribunal stated that the applicant did not provide any explanation as to why he, and the visa sponsor (his wife), were living separately so soon after the marriage.
The applicant’s submission was that contrary to this statement, the applicant did provide an explanation. This was said to be set out, variously, in a statement submitted by the applicant’s wife (see CB 77, the applicant’s statement reproduced at CB 90 – 92, and the transcript of the Tribunal hearing, in particular (according to the applicant’s submissions) T7, lines 29 – 30, T7, lines 48 – 49, T 12, lines 22 – 33, T12, lines 37 – 39 and T 25, lines 35 – 36).
In short, the explanation was said to be that after a week from the marriage, the applicant and the visa sponsor lived apart because the applicant did not have work, or a home, and was dependent on a cousin for financial support.
Before the Court, the applicant referred to the summary of his explanation in his written submissions:
“20. There were several things that can be noted from what the applicant and the sponsor stated in their statements about their circumstances at the time of the marriage:
(i)Sponsor did a casual job in Bathurst;
(ii)The applicant was in Sydney looking for a full-time job;
(iii)The sponsor was in shared accommodation;
(iv)The applicant was in shared accommodation; and
(v)Their financial circumstances did not permit them to lease a property to live together at the time of marriage;
(vi)They leased a property as soon as the applicant got a job with Erina Coles.”
I pause to note that in submissions before the Court, the applicant referred to [27] of the Minister’s written submissions and took issue with the submission that: “Never did the applicant clearly articulate that the reason…”.
It is trite to say that it is the Tribunal’s consideration as set out in its decision record that is the subject of these proceedings, not necessarily how the Minister chooses to express his submissions. In any event, as set out below, I agree with the Minister’s submission in this regard.
The Tribunal’s impugned paragraph does make reference to: “There is no explanation as to why the parties did not start living together…” ([49] at CB 373).
In context, this was a part of the Tribunal’s consideration as to whether there were compelling reasons not to apply the Schedule 3 criteria [46]-[47] (at CB 373). I note that [48] provides context in understanding the applicant’s argument (CB 373):
“48. The parties claimed that they first met each other in June 2010, committed to be in a relationship with each other in February 2011 and were married on 1 June 2011. Despite this, the parties continued to live in separate cities, the applicant living on the Central Coast and the sponsor living in Bathurst. The applicant was unsure when they first started living together, but believed it was about four or six months after they were married.”
The finding of “no explanation” as to the reasons for not living together on the one hand, and the applicant’s submissions now that there was an explanation on the other, requires careful attention to be given to those parts of the evidence relied on by the applicant now.
I pause again to note the following. One, the Tribunal’s statement was not that the applicant and his wife (the visa sponsor) gave no evidence as to the circumstances after they made their commitment to each other, and after their marriage. Rather, there was “no explanation” as to the reason “why” they did not live together for some period after the wedding.
Two, the actual relevant finding (at [49] of the Tribunal’s decision record) was that amongst other things, the absence of any such explanation: “…calls into question any claimed dependence upon each other or commitment to the relationship.”
In her written statement the visa sponsor stated (CB 76 – CB 77):
“he dont have full time job so he came next time by trian to bathurst … we got marry on first of june 2011 in sydeny at the time amar dont have full time job after sometime he got the full time job we got new house on lease and I moved to central coast in umina beach we went to different places to beach we living good life here umina beach we very happy.”
[Errors in the original.]
The Minister’s submission was that it was “…somewhat difficult to know what to make of that”. The submission was that even at its highest, this was not an explanation as to why the applicant and the visa sponsor lived in different places after the marriage. It was said to be simply a description of events, and given the “degree of vagueness” it could not be understood as an explanation as to why they did not live together.
The Minister submitted that the “degree of vagueness”, is compounded when regard is had to the applicant’s own written statement (CB 90 –CB 92):
“She asked that she is not living in her mom’s house, as living in Bathurst alone … That time I was in Melbourne and then after three months I moved to Sydney, because Tara was lived at Bathurst which is too far from Melbourne and one of my cousins advised to come Sydney for better work opportunities … We decided to get marry … We got married on 1st june 2011 in Sydney. At that time I was sharing home with my cousin because I did not get job and I was looking work and I was using my cousin’s credit card and my friends cards as well, so me and Tara lived together for a week in my house … Now after a week we decided to live as we were living before marriage till I did not get job and home.”
[Errors in the original.]
The Minister submitted that what the applicant said in his statement was that four months after the marriage, he obtained employment in Erina (on the New South Wales Central Coast), and then the applicant and the visa sponsor lived together.
The submission was that the statement did not assent that the reason they did not live together was because the applicant did not have employment, and that they could not afford to live together.
The applicant’s circumstances, and that of the visa sponsor, at the time of their marriage was the subject of questioning at the Tribunal hearing (T 17, line 38 – T 18, line 34):
“MEMBER SANDERSON: How long had she been living there?
MR SINGH: (indistinct) move there too many times. When I got married after that she's move in Yamuna.
MEMBER SANDERSON: . No. How long had she been living in Orange - sorry - in Bathurst?
MR SINGH: Bathurst. Yes.
MEMBER SANDERSON: How long had she been living there?
MR SINGH: Yes, she study there long time. Long time is there.
MEMBER SANDERSON: So all the time that you've known her.
MR SINGH: Yes (indistinct)
MEMBER SANDERSON: And when did she move?
MR SINGH: In - after marriage.
MEMBER SANDERSON: After marriage.
MR SINGH: Yes.
MEMBER SANDERSON: Well, we're after marriage now, so how soon after marriage did she move? Immediately?
MR SINGH: No.
MEMBER SANDERSON: Okay. So how long after you were married did she stay living in Bathurst?
MR SINGH: She - after nearly two - four to six months.
MEMBER SANDERSON: Six months.
MR SINGH: Yes. Because we - I stayed there. Tara is there. She move after because where she lives with my friends, so that's why when I got lease on both of name we move here.”
The Minister submitted that this could not be understood as an articulated explanation of what his counsel now says was given as the explanation as to why they did not live together after the marriage. That is, he did not have full-time employment, and they could not afford to live together.
The Minister also referred to (T 20 line 15 – T 21, line 42):
“MEMBER SANDERSON: So you were working in Yamuna and she was living in Bathurst and you'd sometimes go and visit her there.
MR SINGH: Yes.
MEMBER SANDERSON: And how long did that continue?
MR SINGH: Continue like four to six months.
MEMBER SANDERSON: So four to six months after you were married.
MR SINGH: Yes.
MEMBER SANDERSON: Why did she stay in Bathurst?
MR SINGH: Sorry?
MEMBER SANDERSON: Why was she staying in Bathurst?
MR SINGH: Because they have her already on house (indistinct) I stayed with my friend if I live here together so I pay for the rent, everything, yes. I went there, I stayed with her.
MEMBER SANDERSON: What was she doing in Bathurst?
MR SINGH: She has sometime a job in a café.
MEMBER SANDERSON: A job in a café.
MR SINGH: Yes.
MEMBER SANDERSON: Was she studying?
MR SINGH: She's - yes, she just in high school.
MEMBER SANDERSON: She was in high school.
MR SINGH: Yes.
MEMBER SANDERSON: Where was she studying high school?
MR SINGH: In Bathurst. Bathurst school.
MEMBER SANDERSON: She was in Bathurst High School?
MR SINGH: Yes.
MEMBER SANDERSON: What- doing Year 12?
MR SINGH: No, (indistinct)
MEMBER SANDERSON: Beg your pardon?
MR SINGH: (indistinct) Just normal study after she didn't go to her study.
MEMBER SANDERSON: So she wasn't attending any university or tech college or anything else?
MR SINGH: No. No.
MEMBER SANDERSON: So she was just working in a café?
MR SINGH: Yes, sometimes in the café. After that lost job just went on Centrelink.
MEMBER SANDERSON: So she was working in a job in a café, sometimes on Centrelink. She wasn't doing anything else?
MR SINGH: No.
MEMBER SANDERSON: And you were living in Yamuna Beach?
MR SINGH: Yes.”
The Minister emphasised that the Tribunal member squarely asked the applicant why the visa sponsor stayed in Bathurst after the marriage. There was nothing from the applicant to the effect that they could not live together because of a lack of funds, or a lack of employment, or accommodation.
While in her statement the visa sponsor (at CB 77) did make reference to the applicant ultimately obtaining fulltime work (in context presumably at Erina Coles), in his own evidence the applicant said that in the intervening period he had been working in a cleaning business at Umina (also on the Central Coast New South Wales), while the visa sponsor remained in Bathurst.
It is the case (and this is said with great respect to the visa sponsor and the applicant) that their written statements reveal some difficulty with literacy. But even taking into account their demonstrated low level of “sophistication”, what is left is that their statements, and the applicant’s oral evidence, do not articulate the “explanation” contended for now by the applicant’s counsel before the Court.
It may possibly be that some other Tribunal member may have sought to draw from their statements, and evidence, the constructed explanation now urged by the applicant’s counsel.
But that is not the relevant test for current purposes. The relevant question now is whether it was reasonably open for the Tribunal to state, or find, that no explanation existed as to why the applicant, and visa sponsor, did not live together after the wedding.
As set out above, this is not a “no evidence” situation. This is not a case where the Tribunal made a finding for which there was “no evidence” on which to reasonably base the finding.
Rather, the first sentence at [49] (CB 373) (extracted above at [14]) when read fairly, is an expression of the Tribunal’s evaluation of the evidence actually before it. The Tribunal did not make a finding that the applicant and visa sponsor did not provide any evidence. Its finding was that, based on the evidence before it, no explanation existed as to why they had not lived together after the wedding. On the evidence before the Tribunal, and now before the Court, that was reasonably open to the Tribunal, and for which it gave explanatory reasons, which actively engaged with the evidence before it, in particular at [50] and [52] of its decision record.
It was also reasonably open for the Tribunal to see this lack of explanation as raising questions as to the claimed mutual dependence and commitment, to the relationship. Both matters raised by the Regulations as relevant considerations. In all, ground four is not made out.
Consideration: Ground Five
Ground five asserts that the Tribunal made jurisdictional error by failing to take into account the “Aboriginality” of the visa sponsor.
Before the Court, the applicant’s counsel made submissions that the visa sponsor’s “Aboriginality” was in itself a compelling reason not to apply the Schedule 3 criteria, and that the Tribunal failed to consider this in the sense of the impact on her if the applicant were required to return to India, and apply for the spouse visa offshore.
The applicant’s counsel asked the Court to take judicial note that “Aboriginal” people have had children taken from their parents, suffered “massacres”, and suffer, currently, high rates of “alcoholism”, and “incarceration”, which “are very specific of Aboriginal people.”
However, the difficulty is that it is one thing to say that a particular individual (say, the visa sponsor) suffered some specific disadvantage (lack of education, medical difficulties, and the like). It is quite another matter to say that compelling reasons exist simply because she is of Indigenous heritage.
In essence, the applicant’s argument was that the visa sponsor’s “Aboriginality” was a mandatory relevant consideration that the Tribunal was obliged to take into account. That is, it was obliged to take into account the historical, social, and societal disadvantage, which it is said all persons of Indigenous background suffer. I do not agree with the applicant’s submission in this regard.
First, the applicant was unable, and it must be said made no attempt, to point to where in the relevant statutory and regulatory scheme this obligation arose on the Tribunal to consider the situation of a particular ethnic (or as the Minister submitted, racial) group.
Second, it is, as the Minister submitted, that the statutory and regulatory obligation is to consider the particular circumstances of the individual applicant, and the particular individual visa sponsor.
It is to be remembered that the relevant question under consideration by the Tribunal in the current case, was whether there were compelling reasons so as to not apply the relevant Schedule 3 criteria, such that the applicant may be granted the visa for which he applied, if he otherwise met the criteria for the grant of the visa.
In this, it is his, and the visa sponsor’s, individual circumstances that require consideration as against the relevant regulatory criteria for the grant of the visa. That is, such matters as their dependence, and claimed commitment to each other, and the like.
It is difficult to see how some generalised, claimed attributes, said to relate to all members of a particular ethnic or racial group, can be said to be relevant to this consideration. For example, the applicant’s counsel spoke of “alcoholism”, and that this was a problem for “Aboriginal” people. There was no evidence whatsoever before the Tribunal, or for that matter, before the Court, that the visa sponsor suffered from “alcoholism”.
In the current case, the visa sponsor made submissions that she is “…an aboriginal Australian Citizen by Birth” (CB 272.9), and she has “great ties” to Australia that make it unthinkable that she would leave Australia (CB 302 and CB 308).
The Tribunal specifically addressed this concern in its decision record ([55] – [56] at CB 374). The Tribunal also considered a claim that the sponsor had been diagnosed with diabetes ([51] at CB 373 – CB 374), and her claimed dependence on the applicant, including in caring for her mother ([61] – [63] at CB 375). In all, ground five is not made out.
Consideration: Ground Six
Ground six asserts jurisdictional error because the Tribunal failed to take into account the “degree of support” the applicant could provide to the visa sponsor, and her mother, who is suffering from cancer.
In submissions before the Court, I understood the complaint, more specifically, to be that the Tribunal failed to properly consider the support the applicant could give to the visa sponsor’s mother if he were to remain in Australia.
Before the Court, the applicant submitted that this matter was raised by the applicant in a letter which he gave to the Tribunal at the hearing (CB 361 – CB 362). The complaint was that the applicant had given “detailed evidence” about the “issues involved”, yet the Tribunal gave only superficial consideration to it (“…just looked at the surface and made finding.”).
The applicant’s written statement to the Tribunal essentially makes the following claim in relation to the visa sponsor’s mother. She resides in Goondiwindi, Queensland. There are no facilities for cancer treatment there. She is required to “frequently visit Toowoomba”, approximately 230 km away.
The visa sponsor moved to Goondiwindi in August 2016 to look after her mother. The applicant went to Toowoomba on 5 October 2016 to “support” his mother-in-law. In October 2016 the applicant, who was not working at the time, decided to move to Goondiwindi.
The Tribunal’s consideration of this matter is set out in its decision record at ([58] – [63] at CB 374 – 375). The Tribunal’s reasoning is as follows (CB 374 – CB 375):
“58. The sponsor’s mother has recently been diagnosed as suffering from lung cancer. She is currently living in Goondiwindi with her sister and is required to travel over 200 km for treatment in Toowoomba. The sponsor travelled to Goondiwindi to be with her mother and provide assistance to her in August 2016. The applicant remained living with his friends on the Central Coast doing “nothing”. The applicant and the sponsor have recently signed a lease to be able to live together in Goondiwindi. As the applicant has no income, the rental costs of the lease would have to be met by the sponsor alone, regardless of whether the applicant were in Australia or not.
59. Limited information has been provided as to any dependence the sponsor or her mother would have upon the applicant in light of the sponsor’s mother’s medical condition. The only claim made was that the applicant would be able to drive the sponsor’s mother to hospital in Toowoomba. It was claimed the sponsor had lost her driver’s licence, although no evidence of this was provided. Despite this, the sponsor has been driving her car since then. There is no information why the sponsor’s aunts who live in Goondiwindi would not be able to assist her mother to travel to Toowoomba if required. There is no information as to any dependence the sponsor or her mother have upon the applicant.
60. The applicant remained living on the Central Coast after the sponsor left to be with her mother in August 2016. The applicant said that he just stayed at home and did nothing over that period. This would indicate that the sponsor and her mother were able to make appropriate arrangements for her care and support without the need of the applicant.
61. The sponsor’s mother provided a statement in support of the application. This indicated that the only contact with the applicant has been by speaking to him on the phone “a number of times”. The applicant said that he first met the sponsor’s mother when he and the sponsor travelled to Walgett soon after they were married and he had not seen her again until he travelled to Toowoomba in October 2016. There is nothing which would indicate that the applicant has any close relationship with the sponsor’s mother or his presence provides any comfort or that she is dependent upon him for any reason.
62. The sponsor was willing to travel without the applicant to be with her mother in August 2016. As stated above, over this period the applicant remained living with friends on the Central Coast doing nothing. The fact that the sponsor was able to travel to be with her mother without the applicant indicates that she is sufficiently independent to be able to live separately from the applicant for a period of time and also provide care for her mother without the presence of the applicant.
63. The Tribunal is not satisfied that the current circumstances of the sponsor’s mother or any care which she requires or the situation of the sponsor in caring for her mother provide a compelling reason for not applying the Schedule 3 criteria.”
The Tribunal did consider the claim as made by the applicant. Its findings were all reasonably open to it on what was before it. In the circumstances, the complaint that the Tribunal did not “properly” consider the claim is an attempt to express grievance, and cavil, with the Tribunal’s conclusion and the findings that informed it.
Importantly, beyond assertion, there was no satisfactory explanation before the Court as to what detail the Tribunal did not “properly” consider. The essence of the claim was that the applicant was required to drive the visa sponsor’s mother from her home in Goondiwindi, to the medical facility in Toowoomba. The Tribunal considered this “detail”. Ground six is not made out.
Consideration: Ground One
Ground one asserts that the Tribunal committed “jurisdictional error in misunderstanding and misapplying the requirement to waive Schedule 3 criteria”. The particular to this ground is reproduced at [10] above.
Before the Court, the applicant submitted that ground one raised “two issues”, one of which was not articulated in the ground of the particular to it. The applicant sought leave to further amend the ground. The Minister did not object, and leave was granted.
The first issue raised by the ground was said to be that the Tribunal misunderstood and misapplied the requirements to waive the Schedule 3 criteria, because “the very fact” that there was a “longstanding relationship” between the visa sponsor and the applicant, “should have compelled” the Tribunal “to find there [were] compelling circumstances.”
The applicant sought to rely on a number of authorities. First, An v Minister for Immigration and Citizenship [2007] FCAFC 97 (“An”) at [3] – [7] (per Lindgren J) essentially for the proposition set out at [5]:
“…whether facts fully found answer a statutory description or statutory criteria, properly construed, may be exclusively a question of law…”.
Second, Gurung v Minister for Immigration & Anor [2018] FCCA 1649 (a matter in this Court):
“44. The Minister correctly submits that Monakova and Waensila provide a contrary position to that contended for by the applicant. The authorities support the proposition that the power to dispense with criterion 3001 of Schedule 3 to the Regulations is given by the Regulations to promote flexibility in the range of matters which can be considered by the Tribunal (Waensila at [2], [18] and [56]).”
[Emphasis added.]
Third, the applicant noted that the Tribunal at [45] of its decision record made reference to SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 (“SZOXP”) the Tribunal stated:
“45. The Tribunal is required to apply the legislation which states that it must be satisfied there are compelling reasons for not applying the Schedule 3 criteria. As stated in SZOXP v MIBP FCAFC 69 at paragraph 14;
Context, such as legislative history or extrinsic materials, is a guide to the meaning of the statute but it “cannot displace the meaning of the statutory text” and it is the meaning of the statutory text which is where the task of statutory construction begins and ends: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519.”
[The Tribunal’s reference in context should have been to [17] of SZOXP, not [14]].
In short, the applicant’s submission was that in the absence of any statutory definition, or explanation, of the term “compelling reasons”, regard should be had to the relevant Explanatory Memorandum.
This argument appears to have also been put to the Tribunal (see [44] at CB 373):
“44. It is claimed that the parties are in a long-standing relationship and this provides a compelling reason for not applying the Schedule 3 criteria. This submission is relied upon, in part, by referring to the Explanatory Statement. The explanatory statement in providing examples of compelling reasons states:
where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer … In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).”
The applicant’s argument before the Court was that the visa sponsor and the applicant were in a long-standing relationship of two years or longer. He argued that the relevant Explanatory Memorandum states that in such a circumstances the waiver “may” be justified.
The applicant argued that the word “may” provides flexibility to the Tribunal to decide what length of a relationship it will accept as providing compelling reasons to waive the Schedule 3 requirements, and does not provide a basis for the Tribunal to consider other circumstances. In short, the discretion given to the Tribunal is only in relation to the length of the relationship. I do not agree with the applicant’s argument.
First, the extract of the Explanatory Memorandum, as set out in the Tribunal’s decision record at [44], provides one of a number of examples of “compelling reasons”. It does not have the force of the statute, or the regulations. It is not a prescription that must be followed by the Tribunal.
Second, in any event, it recognises by the use of the word “may” that ultimately, this is a matter for the proper exercise of the Tribunal’s discretion. Ultimately what is set out in the extract from the Explanatory Memorandum is simply an illustrative example.
Third, as the Tribunal correctly recognised, it was bound to follow what was relevantly said in SZOXP (see the extract at [45] CB 373).
Fourth, in light of the Full Court’s decision, there is no legal error in the Tribunal focusing on the Act and Regulations ([46] at CB 373):
“46. The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered. As it is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.”
Simply because “compelling reasons” is not defined in the Act or the Regulations does not mean, automatically, that what is relevantly set out there as to the relevant task for the Tribunal requires the Explanatory Memorandum to give it meaning.
Fifth, as the Tribunal correctly stated, it is to the statutory and regulatory criteria that regard must be had for what may form the basis for a finding of compelling reasons, not “examples” in the Explanatory Memorandum.
Sixth, it is the circumstances of each particular case which may give rise to compelling reasons. As set out at cl.820.211(2)(d)(ii) (relevant to the visa class for which the applicant applied), to be granted the visa (in this case the spouse visa), the applicant must satisfy the Schedule 3 criteria. The applicant’s submissions before the Court did not engage with this important regulatory requirement.
The Regulation does provide discretion to the Tribunal to waive this requirement if compelling circumstances exist, such as to justify the waiver. I do not, respectfully, understand what was said by Lindgren, J in An to say that the exercise of such a discretion enables the Court to determine for itself whether compelling circumstances exist. That remains the task for the Tribunal.
Of course, as with the exercise of any statutory discretion, an administrative decision maker must exercise such discretion reasonably, and the consideration and conclusion must be probative of the material before the decision maker. Further, the analysis must exhibit some intelligible explanation as to why the discretion was exercised, or not exercised, as the case may be.
Seventh, in essence, the applicant’s argument before the Court was really an invitation to the Court to substitute its own finding for that of the Tribunal, and to find that a compelling reason did exist because the relationship was of two years duration or longer. That is, an invitation to impermissible merits review.
Eighth, as I sought to explore with the applicant’s counsel at the hearing, I cannot see that the relevant regulatory requirements provide that the waiver is justified simply because the relationship was of two years duration or longer.
As the Explanatory Memorandum, on which the applicant otherwise relied, makes clear, the regulatory emphasis is on the hardship that could result if the Schedule 3 criteria were not waived, not some formulaic application of the length of the relationship.
Ninth, as the Tribunal properly understood, the duration of the relationship was but one factor of the relationship to which regard must be had. The justification of any waiver focused on any hardship that may ensue required consideration of, as the Tribunal correctly said, “…all the factors of the relationship…” ([46] at CB 373).
The Tribunal’s analysis reveals that it considered all the factors raised by the circumstances presented. Its findings were reasonably open to it. It gave an explanation for its findings probative of the material before it.
The second matter raised by ground one takes issue with the Tribunal’s finding (at [54] CB 374) that there was nothing in the length of the relationship that provided a compelling reason to waive the Schedule 3 criteria.
The submission was that by making this finding, the Tribunal did not take into account, or had not “factored in” the length of the relationship in its consideration of the compelling reasons.
At [54] the Tribunal actually stated (CB 374):
“54. Although the parties have now been married for more than five years, as is stated above the parties did not commenced living together for about four or six months after they were married. When considering the length of the relationship, the Tribunal is not satisfied that anything in the length of the relationship or the nature of their relationship provides a compelling reason for not applying the Schedule 3 criteria.”
[Error in the original.]
The applicant’s focus on [54] is, in the circumstances, selective, and does not represent a holistic, or fair, reading of the Tribunal’s analysis.
What is set out at [54] is, when fairly read, a conclusion of what precedes it. The complaint that the Tribunal did not factor in the length or duration of the relationship is not made out.
At [46] (CB 373) the Tribunal specifically recognised that the duration of the relationship was one relevant element in the consideration of whether the Schedule 3 criteria should not be applied.
At best, it appeared the applicant’s argument here relied on the arguments set out above, in relation to the first matter in ground one. That is, as the applicant’s counsel expressed it, “the length of the relationship…is what matters.”
For all the reasons set out above, that proposition must be rejected. In that light, the Tribunal’s conclusion at [54] was reasonably open to it, and for the reasons it gave. Ground one is not made out.
Conclusion
None of the applicant’s grounds are made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 15 February 2019
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