Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 178
•10 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 178
File number(s): SYG 310 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 10 March 2025 Catchwords: MIGRATION - judicial review – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) subclass 820 visa – meaning of phrase “has developed close business, cultural or personal ties in Australia” – Tribunal found that applicant’s ties with sponsor’s family did not constitute development of close personal ties – whether finding legally unreasonable – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth), cl 820.211(2)(d) of Schedule 2, cl 820.221(2)(c) of Schedule 2
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 11 February 2025 Place: Parramatta Solicitor for the Applicant: Mr N Dobbie (Dobbie & Devine Immigration Lawyers) Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 310 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
10 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 1 March 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 February 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 27 June 2017, the applicant applied for a Partner (Temporary) (Class UK) (subclass 820) visa. The application was sponsored by his wife, Navdeep Basra.
On 18 January 2018, the sponsor died.
On 22 June 2018, a delegate of the first respondent refused the applicant’s visa application. First, the delegate was not satisfied that, at the time of application for the visa, the applicant and sponsor had a mutual commitment to a shared life, and a genuine and continuing relationship, and therefore was not satisfied that the applicant satisfied cl 820.211(2)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2). Second, an applicant who is not the holder of a substantive visa at the time of application for a subclass 820 partner visa must meet certain criteria in Schedule 3 of the Migration Regulations unless the Minister is satisfied there are compelling reasons for not applying those criteria: see cl 820.211(2)(d). The applicant did not satisfy the specified Schedule 3 criteria and the delegate was not satisfied there were compelling reasons for not applying those criteria.
On 30 June 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 29 January 2021, the applicant, by his representative, emailed submissions to the Tribunal. The submissions addressed various matters, including cl 820.221(2)(c) which became the focus of the decision of the Tribunal.
On 29 January 2021, the applicant attended a hearing before the Tribunal by video link. The applicant’s representative also attended the hearing.
At the hearing on 29 January 2021, the Tribunal put to the applicant its concern relating to lack of evidence provided by the applicant concerning some matters, including the matter in cl 820.221(2)(c). On 4 February 2021, the applicant, by his representative, emailed to the Tribunal statements of witnesses and photographs in response to the concern expressed by the Tribunal on 29 January 2021 concerning lack of evidence.
On 8 February 2021, the Tribunal made a decision affirming the delegate’s decision to refuse to grant the applicant a partner visa.
TRIBUNAL DECISION
One issue before the Tribunal, as before the delegate, was whether the Tribunal was satisfied there were compelling reasons for not applying the specified Schedule 3 criteria. In light of the death of the sponsor in January 2018, the Tribunal was satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
Clause 820.221(2) provided as a time of decision criterion:
An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5), or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
A second issue before the Tribunal was whether the applicant satisfied cl 820.221(2)(c). The Tribunal at [23]-[24] considered the meaning of the phrase “has developed close business, cultural or personal ties in Australia”. The Tribunal then:
(a)reviewed the evidence before it concerning the applicant’s business ties and concluded that it was not satisfied the applicant had developed close business ties in Australia;
(b)reviewed the evidence before it concerning the applicant’s cultural ties and concluded that it was not satisfied the applicant had developed close cultural ties in Australia; and
(c)reviewed the evidence before it concerning the applicant’s personal ties and concluded that it was not satisfied the applicant had developed close personal ties in Australia.
The Tribunal then found at [47] that, “taking into account these findings individually and cumulatively … the Tribunal is not satisfied that the applicant has developed close business, cultural or personal ties in Australia at the time of this decision”. Therefore, the applicant did not satisfy cl 820.221(2)(c), which was a requirement for the grant of the visa.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 11 February 2025
On 1 March 2021, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. On 13 January 2025, the applicant filed an amended application (Amended Application). The Amended Application contains three grounds numbered 3, 4 and 5. At the hearing on 11 February 2025, the applicant abandoned ground 4. Grounds 3 and 5 are (as written):
3.The Tribunal’s finding that the Applicant did not satisfy subclause 820.221(2)(c) on the basis of ‘close personal ties’ is legally unreasonable.
Particulars
(i)Subclauses 820.221(1) and 820.221(2) of the Migration Regulations 1994 relevantly provided:
820.221
(1) In the case of an applicant referred to in subclause 820.221(2), (5), (6), (7), (8) or (9), the applicant either:
…
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5), or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(ii) The Applicant claimed that he satisfied subclause 820.221(2)(c) on the basis of his close personal ties in Australia; namely:
(a)The Applicant provided a Form 888 from Mr Robert Ani Malcolm, dated 28 June 2017, stating that he is the brother of the Applicant’s wife, Ms Navdeep Kour Basra, that he knew the Applicant from 2014, that he would see the Applicant and his wife every month, and he would speak to them regularly.
(b)In a submission to the Department notifying of the death of Ms Basra, the Applicant’s then representative stated that even after Ms Basra’s death on 18 January 2018, her family considers him as their family member, that her mother and siblings visit him, and that sometimes he stays with them.
(c)In his statement to the Tribunal, dated 28 January 2021, the Applicant stated that he became very close to his brother-in-law, Mr Malcolm, that he considered Australia his home, that he wanted to start a new life in Australia, given Ms Basra’s death, and he wanted to spend time as a member of Ms Basra’s family.
(d)In his post-hearing statement to the Tribunal, dated 3 February 2021, the Applicant states that he is still close to Ms Basra’s family, that he keeps in regular contact with them, that he considers Ms Basra’s family as his family, and that they regularly spend time together, and that being with them makes him feel close to her.
(e)Mr Malcolm, by way of a statement dated 3 February 2021, stated that the Applicant ‘continued his relationship with us as a family member’, that they have been meeting together as a friend even after Ms Basra’s death, and that the Applicant is in regular contact with him as a friend and a family member.
(f)Ms Ramila Ben Malcolm, the Applicant’s mother-in-law, by way of a statement dated 3 February 2021, states that the Applicant ‘is part of our family’ and that he ‘is in regular contact with us as a family member, even after the death of Navdeep’.
(g)Photographs, before and after the death of Ms Basra, and which include the Applicant with Mr Malcolm’s children, and with Ms Malcolm.
(iii) The Tribunal reasoned:
43.The Tribunal has read and accepts this evidence. It accepts that the applicant may be accepted by the sponsor’s family and may be considered a member of it. It accepts that the applicant is in contact with its members, including Mr Malcolm and Ms Malcolm, and accepts that this contact may be regular. However, the Tribunal considers that it does not have sufficient information to substantiate the extent of the claimed ties beyond what it considers are quite general statements in declarations and letters concerning the frequency of contact and the fact that the applicant and Mr Malcolm have met together as friends after the sponsor’s death. If we are to consider some of the apposite definitions of “close”, we see that it means “intimate; confidential: close friendship”.3 The Tribunal is not satisfied on the available evidence, including the claim that the applicant is regarded as a member of the sponsor’s family, that the ties the applicant enjoys with the sponsor’s family are of this or a similar quality.
(iv) Given the Tribunal’s findings that the Applicant is accepted and considered as a member of Ms Basra’s family, having regard to the friendship between the Applicant and his brother-in-law, Mr Malcolm, which at the time of the Tribunal’s decision, had been more than 6.5 years, and given the information before the Tribunal, such as the supporting letters from Mr Malcolm and Ms Malcolm, and the photographs of the Applicant with Ms Basra’s family before and after her death, it was legally unreasonable for the Tribunal to find that the Applicant did not satisfy subclause 820.221(2)(c) on the basis of close personal ties.
5.The Second Respondent misinterpreted subclause 820.221(2)(c) of the Migration Regulations 1994 and or misapplied the law to the facts.
Particulars
(i) In finding that the Applicant did not satisfy subclause 820.221(2)(c), the Tribunal relied on the policy of the First Respondent’s Department, in which it found that the close personal ties referred to in that subclause ‘must have formed or strengthened over time’.
(ii) However, there is nothing in the language of subclause 820.221(2)(c) that requires those ties must have formed or strengthened over time. It therefore misinterpreted the applicable law, and or relied on policy that was inconsistent with subclause 820.221(2)(c).
(iii) The Tribunal proceeded to determine the application before it, based on its misinterpretation of the law and or its application of policy that was inconsistent with that subclause.
(iv) The Tribunal also misapplied the law to the facts, and or its decision was affected by legal unreasonableness, by finding that the Applicant’s personal ties were not ‘close ties’, by finding that the ties were not intimate.
(v) The errors were material because the Tribunal’s decision could have been different, but for those errors.
On 11 December 2024, the parties were notified that the matter was listed for hearing on 11 February 2025.
On 13 January 2025, the applicant’s solicitor filed a written submission (AS). On 4 February 2025, the first respondent’s solicitor filed a written submission.
Hearing on 11 February 2025
At the hearing in this Court on 11 February 2025, Nigel Dobbie, solicitor, appeared for the applicant. Mr Dobbie was not the applicant’s agent or representative when the matter was before the Department or Tribunal. Mr Dobbie made oral submissions which supplemented the applicant’s written submission. The submissions are summarised and addressed below.
Katherine Hooper of counsel appeared for the first respondent. Ms Hooper tendered a court book (CB) which contained the Tribunal’s reasons for decision and documents before the Tribunal, as well as an affidavit annexing a copy of Department policy referred to in the Tribunal’s decision at [23]. The Department policy came from a document titled “Procedures Advice Manual”, commonly referred to as PAM3. Ms Hooper made oral submissions which supplemented the first respondent’s written submission.
CONSIDERATION
Ground 3
Ground 3, excluding particulars, states:
The Tribunal’s finding that the applicant did not satisfy subclause 820.221(2)(c) on the basis of ‘close personal ties’ is legally unreasonable.
It is relevant to consider the context in which the issue arose before the Tribunal. As stated above, in January 2018 the sponsor, who was the applicant’s spouse, died. Subject to two exceptions, an applicant for a subclass 820 partner visa cannot obtain the visa if the spouse relationship is not continuing at the time of the decision-maker’s decision. One exception is if the sponsoring partner has died, but the applicant “has developed close business, cultural or personal ties in Australia” at the time of decision: see cl 820.221(2).
Up to the date of hearing before the Tribunal, the applicant had provided limited evidence to the Department and Tribunal concerning the development of close business, cultural or personal ties in Australia. The evidence was as follows:
(a)The visa application lodged in June 2021 was accompanied by statutory declarations from two supporting witnesses. One witness named Robert Malcolm, who was the brother of the sponsor, wrote that he had known the applicant since 2014, he saw the applicant and sponsor every month and spoke to them regularly on the phone: CB 53. The other witness named Marco Pinto wrote that he spoke with the applicant and sponsor every day on the phone and saw them about twice a week: CB 56.
(b)On 26 March 2018, the applicant’s agent provided a submission to the Department. The agent wrote: (CB 167)
The applicant has developed strong cultural and personal ties in Australia (Please refer to our previous submissions). The applicant is employed by Mega Star Group since 2017 (See the Annexure E attachment) and thus he is not a burden to the public fund. The applicant is attending all cultural events conducted by the communities. The applicant regularly attends temples and aided the required people.
(c)On 28 January 2021, the applicant provided a submission to the Tribunal. The applicant wrote under the sub-heading “Personal ties in Australia”: (CB 242)
Over the years I have remained in Australia I formed a lot of close friendships. I became close to my brother-in-law. Since my wife had a difficult childhood, we remained very close with Malcolm and I formed a strong bond with him. I also have strong ties to my workplace where I have made many friends who supported me through my wife’s death. I am also part of community groups in Australia where I have made many close friends from my country. I consider Australia my home and have adapted to the lifestyle and culture here.
At the hearing before the Tribunal on 29 January 2021, “the Tribunal put to the applicant … its concerns relating to the lack of evidence to show that he had maintained a close relationship with members of the sponsor’s family in Australia other than what had been asserted by him”: see Tribunal decision at [40]. The Tribunal gave the applicant an opportunity to provide further evidence to the Tribunal. On 4 February 2021, the applicant’s agent provided to the Tribunal further evidence, some of which addressed the issue in cl 820.221(2)(c). Specifically:
(a)The applicant provided a statement in which he stated under the sub-heading “Personal ties to Australia”: (CB 251)
Australia has become my home. I have shared so many memories here with my wife and made so many friends. I am still in contact with my wife’s family, and I consider them my own family. We spend time together regularly and being with them makes me feel close to my wife. I cannot imagine being anywhere else but Australia, I have lived here continuously for so many years now, it is where I met the love of my life, and where she was laid to rest.
(b)The applicant provided a statement from Robert Malcolm dated 3 February 2021 in which Mr Malcolm wrote: (CB 253)
Hardeep is accepted by us as a member of our family and we still consider him as a member of our family … Since Navdeep passed away, Hardeep continued his relationship with us as a family member. We have been meeting together as a friend even after Navdeep’s pass away. Hardeep is in regular contain with me as a friend and a family member …
(c)The applicant provided a statement from the mother of the sponsor, Ramila Ben Malcolm, dated 3 February 2021 in which Ms Malcolm wrote: (CB 254)
Hardeep Singh is part of our family … Hardeep is in regular contact with us as a family member event after the death of Navdeep.
(d)The applicant provided a large bundle of photographs of the applicant, the sponsor and others.
The Tribunal, in considering whether it was satisfied that the applicant had developed close personal ties in Australia with members of the sponsor’s family, summarised at [40]-[42] the evidence referred to in paragraphs 22 and 23 above concerning ties with members of the sponsor’s family, and then continued at [43]:
The Tribunal has read and accepts this evidence. It accepts that the applicant may be accepted by the sponsor’s family and may be considered a member of it. It accepts that the applicant is in contact with its members, including Mr Malcolm and Ms Malcolm, and accepts that this contact may be regular. However, the Tribunal considers that it does not have sufficient information to substantiate the extent of the claimed ties beyond what it considers are quite general statements in declarations and letters concerning the frequency of contact and the fact that the applicant and Mr Malcolm have met together as friends after the sponsor’s death. If we are to consider some of the apposite definitions of “close”, we see that it means “intimate; confidential: close friendship”. The Tribunal is not satisfied on the available evidence including the claim that the applicant is regarded as a member of the sponsor’s family, that the ties the applicant enjoys with the sponsor’s family are of this or a similar quality.
The nub of the applicant’s complaint the subject of ground 3 is explained at AS [19] as follows:
Given the Tribunal’s findings that the Applicant is accepted as a member of Ms Basra’s family, that he is considered a member of it, and having regard to the longstanding friendship between the Applicant and his brother-in-law, Mr Malcolm, which at the time of the Tribunal’s decision, had been more than 6.5 years … it was legally unreasonable for the Tribunal to find that the Applicant did not satisfy subclause 820.221(2)(c) on the basis of his close personal ties … The decision is infected with jurisdictional error accordingly …
During the hearing on 11 February 2025, Mr Dobbie emphasised the evidence given by Ms Malcolm in her statement referred to in paragraph 23 above. Mr Dobbie noted that the Tribunal at [43] “accept[ed]” Ms Malcolm’s evidence. Mr Dobbie contended to the effect that Ms Malcolm’s evidence strongly supported a conclusion that the applicant had “developed close … personal ties in Australia” such that, once the Tribunal accepted the evidence, it was not open to the Tribunal to find that the applicant had not developed close personal ties in Australia. A variant of the contention was that a close family tie equated to a close personal tie with the effect that, since the Tribunal accepted that the applicant had developed close family ties with the sponsor’s family, it was legally unreasonable for the Tribunal to not find that the applicant had developed close personal ties in Australia.
The first respondent stated in its written submission that the issue before the Tribunal concerning whether the applicant satisfied cl 820.221(2)(c) involved a question of fact and its evaluation, whether ties of the kind required by the criterion exist is a factual question for the decision-maker, and it was open to the Tribunal to not be satisfied by the evidence provided by the applicant that the applicant had developed close personal ties in Australia. Ms Hooper added in oral submissions, in response to Mr Dobbie’s oral submissions, that a family tie does not equate to a personal tie, and so a person could have a familial or family tie to another person without having a close personal tie to that person.
I agree with the first respondent’s position on this issue. The evidence provided by the applicant to establish that he had developed close personal ties in Australia was not strong. For example, in relation to Ms Malcom’s statement dated 3 February 2021, that Mr Malcolm states that the applicant “is part of our family” and “is in regular contact with us as a family member” says nothing about the frequency, nature or content of the contact. Similarly, in relation to Mr Malcolm’s statement dated 3 February 2021, that Mr Malcolm states that:
(a)the applicant “is accepted by us as a member of our family”;
(b)“we consider him as a member of our family”; and
(c)the applicant “is in regular contact with me as a friend and a family member”,
again says nothing about the frequency, nature or content of the contact. I agree with the Tribunal’s observation at [43] to the effect that these statements do not contain “information to substantiate the extent of the claimed ties beyond… quite general statements”. I consider that it was open to the Tribunal to not be satisfied by the evidence before it that the applicant had developed close personal ties in Australia. I also agree that a family tie does not equate to a personal tie and, although the Tribunal appeared to accept that the applicant had developed ties with the sponsor’s family, it did not follow that these were close personal ties.
Further, the Tribunal at [43] provided reasons for not being satisfied by the evidence before it concerning the applicant’s ties to the sponsor’s family that the applicant had developed close personal ties in Australia. In the context of ground 3, Mr Dobbie did not challenge any part of the Tribunal’s reasoning process at [43].
As noted in paragraphs 22 and 23 above, the applicant relied not only on ties with the sponsor’s family, but also on ties with friends in Australia. The Tribunal at [44]-[46] considered the applicant’s evidence concerning ties with friends. The applicant, in this Court proceeding, has not challenged this part of the Tribunal’s reasoning process.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 5
Clause 820.221(2)(c) is set out in paragraph 12 above.
The applicant contends in ground 5 that the Tribunal misinterpreted cl 820.221(2)(c). It appears from the particulars to ground 5 and the applicant’s written submission that there are two complaints – one concerning the Tribunal’s discussion at [23] – [24] of the term “has developed”, and the other concerning the Tribunal’s consideration at [43] of the term “close”.
The applicant’s first complaint focuses on the Tribunal’s discussion of the term “has developed” at [23]-[24]. The Tribunal at [23]-[24], in considering the meaning of the phrase “has developed close business, cultural or personal ties in Australia” in cl 820.221(2)(c), stated:
[23] Clause 820.221(2)(c) requires that the applicant has developed close business, cultural or personal ties in Australia. The concept of “close ties” in this context (and in the context of the cognate requirements under 801) has not been specifically considered in case law. Furthermore, the Tribunal has not been able to locate any explanatory statement in respect of it so it remains purely a question of fact for it to determine. However, Department policy does suggest that, in assessing whether the necessary ties have developed, regard should be had to the extent to which the ties have formed and/or strengthened over time.
[24] The Tribunal accepts that there is necessarily a temporal aspect to the concept of “close ties” owing to the presence of the words “has developed”. What this means is that it agrees that the ties must have formed or strengthened over time. This reading sits favourably with some of the definitions of “develop” in its transitive form, which are “to bring out the capabilities or possibilities of; bring to a more advanced or effective state”; “to cause to grow or expand”; and “to bring into being or activity; generate; evolve”.
The nub of the complaint appears in particulars (i) and (ii) in ground 5 where it is stated:
(a)In finding that the applicant did not satisfy cl 820.221(2)(c), the Tribunal relied on the policy of the Department in that the close personal ties referred to in that subclause “must have formed or strengthened over time”.
(b)However, there is nothing in the language of cl 820.211(2)(c) that requires those ties must have formed or strengthened over time. It therefore misinterpreted the applicable law, and/or relied on policy that was inconsistent with cl 820.221(2)(c).
AS [29] adds that “ties merely need to be in existence” in order for an applicant to have developed a tie, and “the subclause merely requires that the close tie exists in the past and is continuing in the present”. Mr Dobbie’s contention appears to be that the Tribunal, by not defining the term “has developed” to include the meaning at AS [29], erred in interpreting the term.
In oral submissions, Mr Dobbie described the Department policy to which the Tribunal referred at [23] as an inappropriate fetter on the Tribunal.
The relevant paragraph in PAM3 states:
In assessing whether the applicant has developed close ties, officers should consider the extent to which ties have formed and/or strengthened over time … In assessing this criterion, officers should have regard to the following policy and procedure. However, they should not regard these as exhaustive and should assess claims on a case-by-case basis.
In relation to Mr Dobbie’s complaint that the Department policy referred to by the Tribunal at [23] was an inappropriate fetter on the Tribunal’s discretion, I do not agree. The paragraph in PAM3 about which Mr Dobbie complains is extracted in the above paragraph. As stated by Ms Hooper, first, the words “officers should consider” was not a mandatory or exclusive directive to officers which prevented them from considering other matters. Second, the statement that officers “should not regard these as exhaustive” indicates that officers were not fettered or bound by the policy.
In relation to Mr Dobbie’s contention that the Tribunal misinterpreted the term “has developed” by limiting the meaning to ties that “have formed or strengthened over time” and not including a tie that “exists in the past and is continuing in the present”, I have two difficulties with this contention. First, the Tribunal’s finding that the applicant had not developed close business, cultural or personal ties in Australia did not turn on the distinction between the definition discussed by the Tribunal at [23] – [24] and the definition proposed by Mr Dobbie at AS [29]. If the applicant relied on a “tie [which] exists in the past and is continuing in the present” which the Tribunal refused to take into account because it only considered “ties [that] have formed or strengthened over time”, there might be a connection between Mr Dobbie’s complaint and the reasoning process of the Tribunal. However, the applicant did not rely on any “tie [which] exists in the past and is continuing in the present” which the Tribunal refused to take into account. Second, in any event, the applicant appears to contend at AS [29] that the mere continuation of a tie, without any development in the tie, could involve a development of the tie within the meaning of cl 820.221(2)(c). I do not agree.
The applicant’s second complaint is that “the Tribunal misapplied the law when determining the applicant’s personal ties were not ‘close’”: AS [32] This assertion was not developed further in written or oral submissions. The Tribunal at [43] considered the definition of “close” from the Macquarie Dictionary. The applicant did not contend that it was not appropriate for the Tribunal to consider this dictionary definition. The Tribunal, in and after considering the dictionary definition, stated:
If we are to consider some of the apposite definitions of close, we see that it means “intimate; confidential: close friendship”. The Tribunal is not satisfied on the available evidence, including the claim that the applicant is regarded as a member of the sponsor’s family, that the ties the applicant enjoys with the sponsor’s family are of this or a similar quality.
The first respondent stated in its written submission that ‘close’ is an ordinary English word and there was no error in the Tribunal having regard to its ordinary meaning in informing its assessment of satisfaction of the criterion. Ms Hooper added in oral submissions that the Tribunal’s reference to “of this or a similar quality” indicates that the Tribunal did not bind itself to a dictionary definition.
I agree with the first respondent’s analysis. The Tribunal did not bind itself to a dictionary definition, but instead considered a dictionary definition in the course of considering whether or not it was satisfied that the applicant had developed close personal ties in Australia as a result of ties he had developed with members of the sponsor’s family. I consider that the Tribunal did not misapply the law when considering whether the applicant’s ties were “close”.
Ground 5 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties accepted that costs should follow the event and the losing party should be ordered to pay the winning party’s costs in the scale amount of $8,371.30. Since the application is to be dismissed, I will order that the applicant pay the first respondent’s costs in the sum of $8,371.30.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 10 March 2025
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