Singh v Minister for Immigration
[2018] FCCA 3180
•7 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3180 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal - where the Tribunal found no compelling reasons justifying the waiver of the Schedule 3 criteria – Article 3(1) of the United Nations Convention on The Rights of the Child - where Tribunal was found to have considered the best interests of the child – no jurisdictional error demonstrated – application for review dismissed. |
| Legislation: Migration Regulations 1994 (Cth), sch.3, cl 820.21. |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 |
| Applicant: | GURVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1166 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 29 October 2018 |
| Date of Last Submission: | 29 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 7 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
THE COURTS ORDERS ON A FINAL BASIS THAT:
The Application for review is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review as assessed on the Federal Circuit Court Scale of Costs unless otherwise agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG1166 of 2017
| GURVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Indian citizen. He first arrived in Australia on a student (subclass 572) visa on 8 May 2009. That visa expired on 1 September 2011. The applicant’s relevant appeal and visa application history is as set out in [14] of the reasons of the Tribunal as follows: [1]
He applied for a Skilled (Provisional) (Subclass 485) (Temporary Graduate) visa on 22 July 2011, and this application was refused. He appealed the decision to the Tribunal on 19 February 2015 and it was affirmed on 12 January 2016.
He applied for a Protection visa on 12 April 2013, and this application was refused. He appealed the decision to the then Refugee Review Tribunal on 10 March 2014 and it was affirmed on 22 September 2014.
He applied for Ministerial Intervention on 28 October 2014 and this request received an outcome of 'inappropriate to consider' on 9 March 2015. He applied for Ministerial Intervention again on 4 February 2016 and this request was also found to be 'inappropriate to consider' on 11 April 2016.
He applied for the Partner visa on 23 June 2016, and it was refused on 20 October 2016. He appealed this decision to the Tribunal on 4 November 2016.
[1] See Court Book (CB p.11)
Because the applicant’s last substantive visa expired on 1 September 2011, and because the applicant applied for a partner visa on 23 June 2016 – well after the 28 day limit for the making of such application – the applicant did not satisfy criterion 3001. Hence, because the applicant did not meet such relevant Schedule 3 criteria, the Tribunal noted that it was required to consider whether there were compelling reasons for not applying the criteria. [2]
[2] The Tribunal did so at [16] – [46] inclusive of the reasons (CB p.11 – 17 inclusive)
Clause 820.211 of Schedule 3 to the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provides as follows:
820.211 – Criteria to be satisfied at time of application
…
An applicant meets the requirements of this subclause if:
…
(d) in the case of an application who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (24); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
At [36] of the reasons, the Tribunal acknowledged that at the time of the making of its decision on 3 November 2017, a child born of the relationship between the applicant and his spouse was aged 3 ½ months.
The applicant asserts that the Tribunal fell into jurisdictional error by failing to consider the best interests of that child when it refused the application for waiver of the relevant Schedule 3 criteria. The effect of the waiver refusal was that the applicant was required to make his relevant application for the visa off shore.
In part, the applicant’s argument relied upon a consideration of Article 3(1) of the United Nations Convention on the Rights of the Child (“Convention”). That Article provides as follows:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The applicant relied upon the joint judgment of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at [25] – [27] inclusive, [34] and [39] where it was said:
25.It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way.
26. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party(6), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.
27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law(7). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.
34. Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason - legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (17), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (18) and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.
39…… A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. The decision necessarily reflected the difference between the principle and the instruction.The applicant further relied upon the decision in Wan v Minister for Immigration and Multicultural Affairs 2001 FCA 568 at [31] and [34] where it was said:
31 Even if we are wrong in concluding that the Tribunal did not identify what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa, the conclusion is, in our view, inescapable that the Tribunal did not treat the best interests of the children as "a primary consideration" in its determination. First, the Tribunal does not anywhere in its written reasons for decision describe the best interests of the children as "a primary consideration". The Tribunal's reference to the Ministerial Direction is not, in our view, sufficient to negate the significance of this omission as the Tribunal also refers to a Ministerial Direction and to a Migration Series Instruction which do not suggest that the best interests of affected children are a primary consideration. Secondly, the Tribunal in par 34 of its reasons for decision (see [17] above) appears to describe matters touching on the interests of the children as "subsidiary matters". Moreover, in the same paragraph the Tribunal finds that matters touching on the interests of the children do not "outweigh the strength of community expectations". That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless "outweighed" by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:
"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."
34 Nothing in the Tribunal's written reasons for decision, however, suggest that it undertook an exercise of the above kind. It did not act on the basis that the best interests of the children were a primary consideration in the exercise of the discretion to grant, or to refuse to grant, Mr Wan the visa for which he had applied. To the extent that it gave consideration to the interests of the children, it did not give proper, genuine and realistic consideration to their best interests. For these reasons, it not having placed Mr Wan on notice that it was considering proceeding on a basis other than that the best interests of his children were a primary consideration, the Tribunal denied Mr Wan procedural fairness.
The applicant relied upon the proposition that the function of the Tribunal in considering whether or not there were “compelling reasons” or not to waive the relevant criteria was discretionary, and that, therefore, cases like Teoh and Wan required the Tribunal to have the best interests of the relevant child in mind as a primary consideration when making a decision on point.
When considering what must be established for a finding of satisfaction that there were “compelling reasons”, Tamberlin, Conti and Jacobson JJ in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [21] – [25] inclusive said:
21 In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word "compelling".
22 In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb "to compel". We respectfully disagree with the learned primary judge’s view of this.
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 Regulation 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.
Babicci’s Case was cited with approval by Collier J in Le v Minister for Immigration and Border Protection[2018] FCA 1256 at [6] on the question of the proper construction of the term “compelling reasons” notwithstanding that such case concerned the interpretation of the term “compelling circumstances”.
The respondent relied upon the case of Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 for the proposition that in cases such as the present, the determination as to whether there were or were not compelling reasons to waive the Schedule 3 criteria was firstly a fact finding exercise which did not enliven the obligation on the part of the Tribunal to consider, as part of that exercise, what was in the best interests of the child as a primary consideration in doing so.
The legislative framework in issue in Kaur was less stringent than in the current case. In Kaur, the Minister at his discretion could waive the requirements of compliance with certain criteria if satisfied that there were “compelling circumstances that affected the interests of Australia” or “compassionate or compelling circumstances that affected the interests of an Australian citizen”. Here the Minister had to be satisfied that there were compelling reasons for not applying certain criteria.
At [5] of Kaur the grounds of appeal in that case were set out as follows:
The Tribunal misconceived the nature of the function it was required to perform under PIC4020(4) of the Migration Regulations 1994 (Cth). Expressed differently, the Tribunal took into account irrelevant considerations, illogical reasoning or disproportionate reasoning.
Particulars
(i)The Tribunal misconceived the nature and extent of the compassionate and/or compelling interests required to be considered in PIC4020(4)(a) and (b).
(ii)The Tribunal erroneously equated relevant considerations deriving from the Convention on the Rights of the Child to a test of whether the Third Appellant’s and/or Fourth Appellant would survive, or would be afforded a basic standard of living, should the Appellants’ visas not be granted.
(iii)The Tribunal, despite identifying Australia’s compliance with Article 3 of the Convention as being relevant to the exercise of discretion in PIC 4020(4), failed to have regard to a relevant consideration by failing to treat the best interests of the child and/or children as a primary consideration.
(iv)Further or alternatively, the Tribunal failed to treat the best interests of the child and/or children as a primary consideration, by failing to identify or make a finding as to what the best interests of the child or children were.
(v)Further or alternatively, if the Tribunal did attempt to identify the best interests of the child and/or children, the Tribunal failed to have a proper, genuine and realistic consideration of those interests, including by failing to have regard to the fact that, if deported, the younger child would have to leave the community in which he was born and raised, and the loss of educational, social, cultural and lifestyle opportunities available to both children in Australia.
(vi)Further or alternatively, if the Tribunal did identify the best interests of the child or the children, the Tribunal failed to treat those interests as a primary consideration by failing to consider whether those interests were outweighed by other relevant considerations.
(vii)Further or alternatively, if the Convention was not required to be applied, and for the above reasons was not applied, the Tribunal failed to afford procedural fairness to the Applicants in that it failed to give notice that it proposed to make a decision which did not accord with the principles that the best interests of the children would be a primary consideration in the process
When discussing the grounds of appeal, Dowsett, Pagone and Burley JJ at [20] – [28] inclusive said as follows:
[20] The appellants contend that the purpose of subparagraph (4) is to protect against the potentially capricious operation of (1) and that by the Executive ratifying the Convention, Australia has given a solemn undertaking to the world at large that it will “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”, citing Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 301 (Toohey J) and at 285, 287 (Mason CJ and Deane J). They further contend that the Tribunal correctly satisfied itself that compliance with the Convention constituted compelling circumstances that affect the interests of Australia within PIC4020(4)(a). As a consequence, the appellants contend that the Tribunal was obliged to take into account the best interests of Jazzveer in accordance with the Convention, and in particular by considering what is best for his health, social, linguistic and educational development, his identity, culture and citizenship prospects, and weigh these factors in the balance against other factors. In failing to take these steps, the appellants contend that the Tribunal fell into jurisdictional error.
[21] We reject these submissions for the following reasons.
[22] First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice ; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration & Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
[23] In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions — Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘ … established doctrine’ that obligations under international treaties ‘ … are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law — Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v Commonwealth (1945) 70 CLR 60 at 68–69, 77, and 80–81; Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs & Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.
[24] Secondly, the fact that the Tribunal chose to respond to the appellants’ submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning Jazzveer provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration; Snedden at [152].
[25] Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration & Citizenship at [27]:
Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government & Ethnic Affairs (1988) 20 FCR 65 at 77–78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
[26] Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]–[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
[27] Accordingly, in our view the Tribunal did not fall into error on the basis asserted in grounds 1(i) — (vi) of the Notice of Appeal, and the FCCA did not fall into error in concluding that the application should be dismissed.
[28] In ground 1(vii) the appellants contend that if the Convention was not required to be applied, then the Tribunal failed to afford procedural fairness to them by failing to give notice that it proposed to make a decision which did not accord with the principle that the best interests of the children would be a primary consideration. However, it is apparent that it was the appellants, by their legal representatives, who themselves prosecuted the applicability of the Convention, and the appellants who made submissions on the subject. There can hardly be an absence of procedural fairness in those circumstances. Furthermore, at [27] the Tribunal noted that it had indicated to the appellants that in its view their circumstances were excluded from consideration under PIC4020. In any event we have found that there was no obligation arising under the Convention. There is no lack of procedural fairness in these circumstances. Accordingly, this ground is not made out.
The unanimous judgment in Kaur is binding in the circumstances of this case. The Tribunal’s finding that there were no compelling reasons justifying the waiver of the Schedule 3 criteria was a finding of fact. It was not a discretionary finding, the nature of which gave rise to any obligation as identified in Teoh or Wan. The effect of the Tribunal’s decision is that the applicant was required to make application for the relevant subclass 820 (Partner (Temporary) off shore. The Tribunal did not err in failing to specifically refer to the Convention in its reasons. It was not obliged to do so.
The applicant further submits that the decision of the Tribunal was otherwise unreasonable, had been improperly conducted, had erred at law, and had failed to provide reasoning or reasons for concluding that there were no compelling reasons to waive the criteria. As to those submissions:
The Tribunal gave substantial consideration to the interests of the child and of the family when arriving at its decision. It found at [33] that the parties had lived together in a spousal relationship for about 16 months since their marriage on 26 June 2016, but did not find that the duration of such relationship was a compelling reason for waiver. At [36] it was noted that the applicant’s wife would have ongoing health support in the absence of the applicant for both herself and the child, and at [39] it was noted that the applicant’s wife had recourse to government benefits as an Australian citizen. The Tribunal found that the occurrence of some financial stress in the absence of the applicant, and any attendant disruption, were not compelling reasons for waiver of the criteria. At [40] the Tribunal confirmed that the sponsor conceded that she had not been diagnosed with any underlying depressive illness or anxiety disorder unrelated to uncertainty over the visa. The Tribunal noted that the applicant had suffered from depression and anxiety arising from the applicant’s visa uncertainty and that the applicant had attended counselling sessions which had focused on stress management and relaxation for treatment. At [41] the Tribunal noted observations from the applicant’s wife’s health professionals that the applicant was a supportive and caring father and husband. The Tribunal found that the fact that the sponsor knew when she entered into the relationship with the applicant, and chose to have a child by cessation of the taking of the contraceptive pill, that she accepted that she could fall pregnant and have a child in circumstances where the applicant’s visa status was unresolved, and that any anxiety arising from same was not a compelling reason to waive the criteria.
The Tribunal at [42] – [43] considered the practicalities of the applicant travelling with the whole family back to India for the purpose of the making of the offshore visa application, but did not accept that there were any compelling reasons for waiving the criteria based upon any of the grounds raised by the applicant or the sponsor in that regard.
The Tribunal noted that the applicant had remained in Australia for over 6 years since the expiration of his student visa in September 2011, his being on a succession of bridging visas whilst pursuing application for substantive visas, and appealing against relevant refusals of same.
The Tribunal was entitled to make the findings it did. The Tribunal had the advantage of seeing the applicant and his wife and assessing their creditworthiness. It relevantly set out the applicant’s past visa application history and was entitled to find that both the applicant and his wife were articulate and aware of visa condition requirements. It was entitled to find that the applicant’s past applications for visas were ill-founded because that was acknowledged by the applicant at the hearing as recorded in [37] of the reasons.
The Tribunal was entitled to find that the decision on the part of the applicant and his wife to have a child at the time they did was so as to provide a compelling reason to waive the Schedule 3 criteria. There was more than a skerrick of evidence justifying such finding. [3] The applicant seeks that this court overturn a finding of fact open on the evidence and information before the Tribunal. This court is unable to undertake such an impermissible merits review.
[3] See AUG17 v Minister for Immigration [2017] FCCA 1874 at [72] per Judge Driver
There was a clear rationale and pathway by which the Tribunal arrived at its decision to refuse the application. As was said by Gageler J in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [64]:
A statutory requirement that a decision-maker arrive at a state of satisfaction as a pre-condition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a pre-condition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” – “an inclination of the mind towards assenting to, rather than rejecting a proposition …”.
The Tribunal’s decision was one which was open to it. It was not illogical or without foundation. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Another fair-minded decision-maker could have arrived at the same decision. As was considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76]:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King157 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The Tribunal’s decision was not disproportionate, and was made having regard to the legal framework within which the decision was required to be made.
The application for review is dismissed.
The applicant has been unsuccessful in his claim for review. The First Respondent has been put to the cost of resisting the applicant’s claims. The applicant has been wholly unsuccessful in those claims. Costs should follow the event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 7 November 2018
CORRECTIONS
Paragraph 3 has been amended to correct a clause reference.
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