Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 766
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 766
File number: MLG 3430 of 2018 Judgment of: JUDGE FORBES Date of judgment: 23 August 2024 Catchwords: MIGRATION – partner visa – judicial review of decision of Administrative Appeal Tribunal not to grant visa – where visa application made more than 28 days after cessation of previous substantive visa – where applicant had been unlawful non-citizen for four years – whether compelling circumstances warrant waiver of visa criteria – whether Tribunal failed to consider relevant matters – whether applicant denied procedural fairness – whether Tribunal affected by apprehended bias – no error found Legislation: Migration Act 1958 (Cth) s 360, 422B
Migration Regulations 1994 (Cth) cl 820.211, condition 3001
Cases cited: Abebe v Commonwealth [1999] HCA 14 at [187]
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Isbester v Knox City Council (2015) 255 CLR 135
Kioa v West (1985) 159 CLR 550
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
NADH of 2001 v Minister of Immigration (2004) 214 ALR 264
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2921 v Minister for Home Affairs [2022] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SCAA v Minister for Immigration [2002] FCA 668
SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration [2002] FCAFC 286
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Webb v R (1994) 181 CLR 41
Division: Division 2 General Federal Law Number of paragraphs: 143 Date of hearing: 6 December 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: Ms Richardson; Sparke Helmore Lawyers ORDERS
MLG 3430 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Applicant’s application for judicial review filed on 14 November 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed 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 FORBES
INTRODUCTION
In this proceeding the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (AAT) on 11 October 2018 to refuse the grant of a Partner (Temporary) (Class UK) (subclass 820) visa (the partner visa).
The applicant applied for a partner visa on the basis of his relationship with an Australian citizen (the sponsor).
A criteria for the grant of the partner visa is that the applicant hold a substantive visa or that the application be made within 28 days of the cessation of a substantive visa. The applicant was not the holder of a substantive visa at the time he applied for the partner visa and he had not held a substantive visa for four years prior to the application.
Where an applicant cannot meet the necessary criteria, a partner visa may only be granted if the Minister is satisfied that there are compelling reasons for not applying the criteria.
The Tribunal did not find compelling reasons to waive the criteria in condition 3001 of the Migration Regulations 1994 (Cth) (the Regulations).
For the reasons given below, I have concluded that the Tribunal properly discharged its statutory task. The applicant has not established jurisdictional error and the application will be dismissed.
BACKGROUND
The applicant is a citizen of India. He arrived in Australia on a student visa on 25 March 2009. The student visa was cancelled on 15 July 2010 and the applicant remained in Australia as an unlawful non-citizen.
The applicant met his sponsor at a party in Melbourne in March 2014 and they married about 4 months later in early July 2014[1]. He lodged a partner visa application on 20 August 2014 and was granted a Bridging Visa C the following day.
[1] Court Book (CB) 8, Item 55
In order to apply for a permanent partner visa, an applicant must lodge a combined application for a Partner (Temporary) (class UK) (subclass 820) visa and a Partner (Residence) (class BS) (subclass 801) visa. The temporary (subclass 820) visa is typically granted while the permanent (subclass 801) visa is being processed. The applicant in this matter lodged such a combined application based on his de facto relationship with an Australian citizen, the sponsor. The applicant was assisted by a migration agent in his application.
The criteria for the visa included the criteria set out in cl 820.211 in Schedule 2 of the Regulations which states:
820.21 Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i)if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii)if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant 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 (2A); 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.
Schedule 3 criteria 3001 requires that the application for a visa be lodged within 28 days after the last day the applicant held a substantive visa. Satisfaction of condition 3001 is a mandatory requirement, unless the Minister is satisfied that there are compelling reasons for not applying that requirement.
The Explanatory Statement accompanying the amendments that introduced the relevant waiver power provide an explanation as to the purpose of this provision[2]:
“Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
•where there are Australian-citizen children from the relationship; or
•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.”
[2] Cl 10 of Sch 2, Pt 820 (Spouse) of the Migration Regulations (Amendment) 1996 No 75 (Cth)
The partner visa application was not lodged until four years after the applicant’s last substantive visa Ta student visa) was cancelled. The applicant did not comply with condition 3001 and he could not be considered for the partner visa unless the condition was waived.
On 6 October 2014 a delegate of the Minister for Immigration and Border Protection (the delegate) invited the applicant to put forward claims and relevant documents to support any compelling reasons to not apply condition 3001 of the Regulations to his case. The Department also invited the applicant to provide further evidence of his relationship with the sponsor within 28 days[3].
[3] Court Book (CB) 58-62
On 13 January 2015 the applicant provided documentation through a migration agent. The documentation included submissions on compelling reasons and other evidence including a report from the applicant’s psychologist Edwin Kleynhans dated 11 December 2014[4].
[4] CB 63
On 30 April 2015 the applicant’s visa was refused. In its reasons, the delegate found that compelling reasons did not exist to justify waiving the requirement in condition 3001, and therefore the applicant did not meet cl 820.211(2)(d) in Schedule 2 of the Regulations. As the applicant did not meet the requirements of a Subclass 820 visa, the delegate also refused to grant a Subclass 801 visa.
Administrative Appeals Tribunal (AAT)
The applicant applied to the AAT for review of the delegate’s decision. On 22 October 2015 the Tribunal affirmed the delegate’s decision to refuse the visa[5].
[5] CB 109-116
The application then followed a rather tortuous procedural path.
On 8 April 2016, the Federal Circuit Court quashed the Tribunal’s decision and ordered by consent that the matter be remitted to the Tribunal for reconsideration.
On 6 January 2017, the Tribunal again affirmed the decision to refuse the visa, however, on 10 October 2017, the Federal Circuit Court again quashed the Tribunal’s decision and ordered by consent that the matter be remitted to the Tribunal for reconsideration. On that occasion the Minister conceded that the Tribunal fell into jurisdictional error when it refused to consider whether the applicant’s claim to be in a genuine relationship, of itself, constituted a “compelling reason” to waive the requirement to satisfy criteria 3001, 3003 and 3004. Thus, the Tribunal misunderstood the operation of clause 820.211(2)(d)(ii) of the Regulations.
On 14 May 2018, the Tribunal invited the applicant to attend a hearing scheduled for 27 June 2018. The invitation noted the applicant’s request for a Punjabi interpreter.
On 26 June 2018, the day before the scheduled hearing and just after 11.00am, the Tribunal sent an SMS text message to the applicant reminding him of the hearing the following day. The Tribunal then received a phone call from the applicant seeking postponement of the hearing. A case note entry made by an administrator at the Tribunal at 11.24am that day recorded[6]:
“Applicant called a moment ago saying that he was ill and unable to attend tomorrows [sic] scheduled meeting. He said that he had sent his medical certificate by express post yesterday and was assured it would be received at the tribunal today.
I said that all requests for hearing postponement must be made in writing. I stated that only a presiding member could grant the postponement and until applicants received advice that a postponement has been granted they must assume the scheduled hearing will take place. I said that I could not grant the postponement and until the Member received a written request for postponement it would not be considered.
I said that given the timeframe prior to the hearing electronic correspondence may be more suitable for a hearing postponement request. RA asked for our email address which I gave to him. He said he would email a request for postponement as soon as possible. I said that evidence to support the request is required.
I said I would make a note of our conversation for the member.”
[6] CB 170
At 1.22pm the applicant sent an email to the Tribunal registry. In the email he referred to a medical certificate which he had left at reception and which he had been informed would be forwarded to the Tribunal member that day.
Shortly thereafter, at 2.16pm on 26 June 2018, the Tribunal’s case notes record that an attempt was made to contact the applicant to inform him that the hearing had been cancelled due to the unavailability of an interpreter. The case note records that no answer was received from the applicant and that it was followed up with an email.
That same day, the Tribunal wrote to the applicant advising that “due to circumstances beyond our control the Member is unable to conduct the hearing on the day”. The applicant was informed that the Tribunal would write to him to advise of a new hearing date.
On 28 June 2018, the Tribunal wrote to the applicant advising that the matter would be re-listed for hearing again shortly. The text of the letter illuminates some of the confusion which had occurred in the previous days. The Tribunal stated[7], inter alia:
[7] CB 131-132
“On 26 June the Tribunal received an email seeking a postponement of a review hearing set down for 27 June 2018.
On 27 June the Tribunal received a report from Clinical Psychologist Mr Edwin Kleynhans dated 22 June 2018. In the letter he states an opinion that you would “currently have challenges in giving evidence at a Tribunal such as the AAT”.
However, on 26 June 2018 the hearing set down for 27 June 2018 was adjourned on the basis that an interpreter in your language was unavailable at the last minute.
The matter will shortly be listed again for hearing.
The Tribunal has however considered your correspondence of 27 June 2018.
Please note carefully the following. If you make any further postponement request that request must be supported by satisfactory medical evidence that addresses the following matters:
-It should indicate precisely what diagnosis has been made of your condition and you should include an opinion as to whether, and how soon, you would be able to participate in a hearing of a likely duration of less than 3 hours (whether by attending the Tribunal in person, or by telephone).
-The medical evidence should also address the question as to whether appropriate medication or other measures (such as adequate breaks) would enable you to attend the Tribunal in person.
You may find it helpful to show this letter to the doctor so that you can be sure to provide what the Tribunal requires.
If you make a further request for a postponement the Tribunal may refuse the request if the grounds for the request or the evidence in support are considered insufficient […]”
The Tribunal case notes record that the Tribunal called the applicant on 29 June 2018 to follow-up its correspondence of the previous day. The Tribunal registry explained that the member had requested a more detailed medical if the applicant was unable to attend any upcoming hearings. The applicant informed the registry that he understood and would take the Tribunal’s email to the doctor.
On 6 July 2018, the Tribunal invited the applicant to attend a hearing scheduled for 29 August 2018. The letter explained that the applicant could give evidence and present arguments relating to the issues arising in his case. The letter noted that he had requested the assistance of a Punjabi interpreter.
On 22 August 2018 the Tribunal sent an SMS text to the applicant reminding him of the hearing which had been listed on 29 August 2018.
On 25 August 2018, the applicant provided a report from Mr Kleynhans dated 22 August 2018[8].
[8] In the Minister’s written outline of submissions, the date of the report from Mr Kleynhans was recorded as 22 June 2018. However, this is plainly incorrect as the document included in the Court Book was not the attachment to the applicant’s email dated 27 August 2018. The correct attachment, being a medical report dated 22 August 2018, was handed up to the Court on the morning of the judicial review hearing and a copy provided that day to the applicant
Relevantly, the report prepared by Mr Kleynhans addressed the current mental health status for each of the applicant and the sponsor. Among other things, the report noted that the couple first consulted Mr Kleynhans on 18 November 2014 and that the sponsor was diagnosed with “adjustment disorder with mixed anxiety and depressed mood”. He noted that at the time of the initial consultation the sponsor was receiving treatment from a psychologist. The doctor notes that the couple consulted with him again on 2 April 2016 at which time he diagnosed the sponsor with “major depressive disorder with melancholic features and anxious distress” together with “generalised personality disorder”.
Mr Kleynhans notes he conducted a further review of the couple on 7 June 2018. At that time he records that Mr Singh had become stressed because of his wife’s mental health condition and that he wanted to postpone an AAT hearing. On this occasion the doctor diagnosed the applicant with “adjustment disorder with mixed anxiety and depressed mood” and found him not to be in the right state of mind to attend a hearing.
The report of 22 August 2018 also addresses a consultation with the applicant on 22 June 2018 and a further session with the couple on 17 August 2018.
In relation to the sponsor, the doctor notes she has serious ongoing clinical symptoms and noted that “[…] she is still consulting her psychologist. The family doctor prescribed an antidepressant, Cipramil for her”. Noting the ongoing diagnosis of major depressive disorder with anxious distress and generalised personality disorder, the doctor recorded her depressed mood as severe, and recommended that the sponsor talk to her family doctor about reviewing her antidepressant medication.
As for Mr Singh, the doctor again diagnosed him with “adjustment disorder with mixed anxiety and depressed mood”. He observed that the applicant had problems with memory, attention span and concentration problems when anxious.
In terms of the couple’s ability to participate in a hearing at the AAT, Mr Kleynhans opined as follows:
“In terms of for how long they won’t be able to attend in person at a Tribunal, I am anticipating that they would be ready to attend within 6 months as of now, but subject to the ongoing problems she is having in getting her daughter to rejoin them in their home. I’m also suggesting when attending in person, that the hearing should not go longer than 1.5 hours, and if it need be longer than 1.5 hours a hour-break. However, the hearing should not be longer than 3 hours.
Telephone interview. I am of the opinion that a lower level of stress is essential for the psychological and physical well-being of [the sponsor], which is the foundation for his compelling circumstances and why they need to be interviewed via videoconferencing or telephone link. In terms of telephone/video conferencing timelines, I am suggesting that they should be ready in 2 weeks and for the interview not to be longer than one hour. Or if need be a break of one hour in between. Given their compelling circumstances outlined in this and other reports, the best option would be a telephone conference call.”
On 27 August 2018, the applicant requested a further postponement of the hearing. On the same day, the Tribunal wrote to the applicant and advised that the member had agreed to a postponement. The applicant was informed that the hearing would be rescheduled as a telephone hearing and he would be advised of a new hearing date once available.
On 18 September 2018, the Tribunal invited the applicant to attend a hearing via telephone scheduled for 10 October 2018. In the hearing invitation the Tribunal stated that the Member wished to take evidence from the sponsor. The letter stated however that the sponsor was not required to give her evidence at the telephone hearing and that she may give her evidence in the form of a statutory declaration if she wished.
On 9 October 2018, the Tribunal received an email from the applicant which attached a short statutory declaration declared by the sponsor with a letter attached which explained the nature of the couple’s relationship. The statutory declaration had been witnessed by Mr Kleynhans that day. The covering email also stated that it attached “my medicine which I am taking for stress”. The attachment was a prescription for the medications Doxycycline and Lexapro dated 28 August 2018 written for the applicant by a general practitioner.
The Tribunal’s case notes also record that the applicant telephoned the registry around midday on 9 October 2018 to confirm that he had just sent emails and that he wanted the information treated as urgent correspondence.
On 10 October 2018, the applicant attended the hearing by telephone assisted by an interpreter in the Punjabi and English languages. Notes of the hearing record that it commenced at 11.29am and was completed at 1.31pm. The Tribunal member also contacted the applicant’s treating psychologist, Mr Kleynhans, by telephone during the course of the hearing.
On 11 October 2018, the Tribunal affirmed the delegate’s decision. The decision record was certified by the Tribunal member at 4.53pm that day[9], although it appears that the applicant was not notified of the decision until 16 October 2018[10].
[9] CB193
[10] CB192
On 12 October 2018, the day after the decision, Mr Kleynhans sent a report to the Tribunal under the subject heading “addendum to hearing at AAT on 10/10/2018; Case No. 1724826”. To that email Mr Kleynhans attached the following documents:
·a report dated 11 December 2014. This report was before the delegate (and the Tribunal) and was provided in response to the Department’s invitation dated 6 October 2014.
·a report addressed to the Tribunal member, dated 12 October 2018, in which Mr Kleynhans sought to explain some of the time constraints and difficulties he encountered in giving evidence during the telephone hearing the previous day and which sought to clarify his answers to questions asked by the Tribunal. The doctor explained that due to time constraints on 10 October 2018 he had not been able to give an accurate account of events but he wanted to clarify the following matters after reviewing previous documentation:
·he confirmed that he was aware that the applicant had been illegal in Australia for a number of years;
·that the sponsor was getting treatment from her own psychologist and that she had arranged a mental health care plan with her family doctor;
·that from 22 June 2018 he had planned to see the applicant every 3 weeks; and
·that the applicant had attended his family doctor on 28 August 2018 and had been prescribed Lexapro for stress.
I note that Mr Kleynhans’ report dated 12 October 2018 was not before the Tribunal at the time it made its decision.
Tribunal decision
The Tribunal determined that the main issue before it was whether the applicant satisfied the criteria in Schedule 3 of the Regulations, and if not, whether there were any compelling reasons not to apply those criteria.
The Tribunal found that the applicant’s last substantive visa had ceased on 15 July 2010, and the partner visa application was lodged on 20 August 2014, four years outside the 28 day timeframe. Thus, criterion 3001 was not satisfied.
Turning its mind to whether any compelling reasons existed for not applying the Schedule 3 criteria, the Tribunal considered that:
·the applicant remained unlawful in Australia for a lengthy period and commenced his relationship with the sponsor during that time;
·the applicant and the sponsor had been in a relationship for four years at the time of the hearing, but that in itself did not amount to a compelling reason to waive the Schedule 3 criteria;
·the applicant and the sponsor are in a genuine relationship, and both emotionally and financially dependent on each other, but that in itself did not amount to a compelling reason to waive the Schedule 3 criteria;
·the Tribunal referred to documentary evidence provided by the applicant, including various psychological reports regarding his and the sponsor’s mental health, written by psychologist Mr Kleynhans. The Tribunal formed the view that “the format of Mr Kleynhans’ reports follows a pattern of recording a version of events told to him by the applicant and sponsor”[11] and does not “refer to any therapeutic treatment given by him to the sponsor or the applicant”[12];
·Mr Kleynhans referred to the applicant needing to stay in Australia for the sponsor’s daughter and to provide a stable home environment, but failed to mention that the sponsor’s daughter had been removed by the Department in 2016;
·Mr Kleynhans’ reports did not indicate what treatment the parties had been given, but the Tribunal accepted that the sponsor and applicant had experienced some stress, anxiety and depression;
·in oral evidence, Mr Kleynhans said he was not aware of the extensive period that the applicant remained unlawfully in Australia;
·the applicant gave conflicting evidence regarding the regularity of his appointments with Mr Kleynhans and other health matters; and
·the sponsor stated, and the Tribunal accepted, that she has in the past used drugs, that the removal of her daughter by the Department was stressful and that she is unemployed.
[11] Administrative Appeal Tribunal’s reasons (Tribunal’s reasons) at [51]
[12] Tribunal’s reasons at [52]
The Tribunal ultimately found, at [62] that:
“The Tribunal has major concerns with the medical evidence. The psychologist’s reports appear to be based on symptoms as described by the sponsor and the applicant. There is no evidence before the Tribunal to indicate the type of treatment if any, that the sponsor and or applicant are currently undertaking for their claimed mental health issues. There are no detailed suggestions by the psychologist of further treatment. The Tribunal considers the psychology reports have been obtained by the parties primarily to assist in a migration outcome.”
Ultimately, the Tribunal found no convincing explanation as to why the applicant remained unlawfully in Australia from the time his visa ceased in 2010 until he was granted a bridging visa in 2014.
The Tribunal did not find that there were compelling reasons for not applying the Schedule 3 criteria, and the applicant does not meet cl 820.211(2)(d)(ii). The Tribunal affirmed the delegate’s decision not to grant the partner visa.
Judicial review
On 14 November 2018 the applicant applied to this Court for judicial review of the Tribunal’s decision. The application raises 15 grounds of review in the form of a “letter to the court”. The grounds in full will not be repeated here, but the main contentions can be summarised as follows:
(1)The applicant was not mentally prepared for the hearing (before the Tribunal);
(2)The Tribunal “refused to see medical condition raised in the case”;
(3)The Tribunal failed to consider Mr Kleynhans’ evidence;
(4)The Tribunal made its decision on the basis of the applicant’s immigration history, and should have only considered his circumstances at the time of the application;
(5)The Tribunal had concerns with the evidence regarding the very short time period that the parties knew each other before they married;
(6)Mr Kleynhans was aware that the applicant was formerly an unlawful non-citizen and the Tribunal failed to read Mr Kleynhans’ first report carefully;
(7)The Tribunal failed to reference in its reasons the Lexapro tablets listed on the prescription that was supplied by the applicant to the Tribunal;
(8)Mr Kleynhans was not given any notice that the Tribunal would take evidence from him;
(9)The Tribunal had concerns about the evidence regarding mental health plans, but the Tribunal never requested this type of evidence from the applicant;
(10)The postponement of the hearing on 27 August 2018 was because the Tribunal did not have an interpreter available, not for medical reasons;
(11)The break given to the applicant during the hearing was too short;
(12)The Tribunal did not ask questions about the applicant and the sponsor’s relationship and the Tribunal was looking for reasons to refuse the visa;
(13)The Tribunal did not listen to the applicant’s evidence about how his “school” put him in a difficult situation;
(14)The applicant alleges that the Department did not update his visa status which meant he remained unlawfully in Australia from 2016 to 2017; and
(15)The applicant requests that the Court consider his case as a whole.
LEGAL FRAMEWORK
Insofar as the applicant’s grounds engage with species of jurisdictional error, they appear to be as follows:
(a)alleged breaches of natural justice, procedural fairness and the right to be heard;
(b)failure to consider relevant matters; and
(c)apprehended bias.
My consideration of the applicant’s “grounds” of review is framed by the following legal principles.
Natural justice, procedural fairness and the right to be heard
The Tribunal is required to adhere to the principles of natural justice. The exhaustive statement of the natural justice hearing rule as it applies to the Tribunal is set out in s 422B of the Act:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
As far as the applicant claims procedural unfairness regarding the manner in which the hearing before the Tribunal took place, the Tribunal’s obligations can be found in s 360 of the Act which states:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests[13]. In order to discharge this duty, a decision-maker needs to bring to an applicant’s attention the “substance” of adverse information which the decision-maker considers may bear on the decision to be made. It is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention”[14].
[13] Kioa v West (1985) 159 CLR 550 at 582
[14] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25]
A failure to accord natural justice to a party will only give rise to jurisdictional error where the failure is material. That is because a statute conferring decision-making authority is “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”[15].
[15] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134
As to materiality, in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 the majority explained that it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”[16].
[16] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [38]
The burden falls on the applicant to prove the realistic possibility that a different decision could have been made had there been compliance with the relevant condition. However, where a Tribunal errs by denying a party a reasonable opportunity to present their case, the standard of “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity - rather, it assumes that if the party had been given a fair opportunity to present their case, they would have taken advantage of it[17].
[17] Nathanson v Minister for Home Affairs [2022] HCA 26 at [33]
Failure to consider evidence or submissions
It is well accepted that a failure on the part of the Tribunal to consider certain representations may constitute jurisdictional error. In Plaintiff M1/2921 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [23]-[27]:
“[23] It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26] Labels like “active intellectual process” and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.”
The Tribunal is not required to refer to every piece of evidence[18]. In some instances, overlooking a particular piece of evidence may support a conclusion that the Tribunal constructively failed to exercise its jurisdiction, but only where the evidence not referred to is of such significance to warrant that inference being drawn[19].
[18] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at 59 [83]
[19] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Apprehended bias
Any claim of apprehended bias must be assessed in the context of the relevant legal, statutory and factual framework[20].
[20] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [22]; Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [65]; Isbester v Knox City Council (2015) 255 CLR 135 at [20] and [23]
If the applicant is asserting apprehended bias, the test is well known. He must demonstrate that there would be a reasonable apprehension on the part of a “hypothetical fair-minded layperson who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, that the Tribunal might not bring an impartial mind to the resolution of the question to be decided[21].
[21] Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235
Apprehended bias is a very serious claim which must be firmly and distinctly made and clearly proven[22]. The standard of proof is high. It is not enough that a reasonable bystander have “a vague sense of unease or disquiet”[23].
[22] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531
[23] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22]
HEARING
On 6 December 2023, the parties came before me in person for a final hearing. The applicant was self-represented and appeared with the assistance of a Punjabi interpreter. Mr Richardson, a solicitor, appeared for the Minister.
As is my usual practice where applicants appear without representation, I explained the course the hearing would follow, including the order of oral submissions and the first applicant’s right of reply. I confirmed that the first applicant and the Punjabi interpreter understood each other. I informed the first applicant that the Court could not review the merits of the Tribunal’s decision or grant the applicants the visa that they seek. I explained that the role of the Court was restricted to determining whether the Tribunal had made a legal error in arriving at its decision. I was satisfied that the first applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
Prior to the hearing, the Minister filed written submissions and a Court Book. The applicant did not file or serve any submissions.
At the beginning of the hearing, the Minister handed up a report by Mr Kleynhans regarding the applicant and the sponsor, dated 22 August 2018. The report was annexed to an affidavit of the Minister’s legal representative. The report was provided by the applicant to the Tribunal on 25 August 2018 and had been mistakenly excluded from the Court Book.
I confirmed with the applicant that he held a copy of the Court Book. Whilst he had brought a physical copy of the Court Book from 2017 with him, he confirmed that he had received an electronic copy of the most recent Court Book in 2020, which had been served on him.
Applicant’s submissions
The applicant’s oral submissions did not directly engage with the “grounds” set out in his application for review. When asked to explain what the Tribunal did wrong he made the following brief submissions.
The applicant submitted that he and his sponsor were informed by a migration agent to apply for the partner visa as soon as possible.
The applicant said that on the day of the hearing before the Tribunal, Mr Kleynhans was not ready for a call from the Tribunal member and that the call took him by surprise. However, the applicant also conceded that he had told Mr Kleynhans that the Tribunal might call him.
The applicant then referred to the Tribunal’s reasons where it had noted at [66] that the applicant “has a good relationship with his family in India and finds no reason why the applicant cannot return home to make his application offshore”. Responding to that finding, the applicant submitted that his father passed away in 2015, and his mother is being looked after by his brother. He said he has been in Australia for 14 years. He said that when he told the Tribunal that he had a good relationship with his family, he did not understand why that question was being asked.
The applicant then referred to [58] of the Tribunal’s reasons where it stated:
“At the hearing the applicant when asked what doctors he was consulting gave evidence that he sees Mr Kleynhan [sic]. He said he attends two classes a week with him. He gave evidence that he pays $100 per class. Asked about this claim Mr Kleynhan [sic] said he did not conduct classes and did not see the applicant twice a week.”
The applicant says that when he told the Tribunal member that he went to “classes” with Mr Kleynhans, he meant to say “consultations”. This, he submits, was an interpretation issue. The applicant also said there was a sense of confusion during the Tribunal hearing as it had been conducted via telephone.
Regarding his period as an unlawful non-citizen, the applicant submitted that he lost his passport in 2009, and then got confused after he was “kicked out of school”. He submitted that he lost everything in Caboolture, Queensland, and he was not able to get a loan from his father. He said the Tribunal should have taken into account the circumstances of why he was unlawful.
The applicant submitted that he mentioned to the Tribunal that his wife could not give evidence, and so she put it in a statutory declaration. Finally, the applicant expressed wanting a further chance to return to the Tribunal to give his wife a better chance to explain their situation. He said that she is different now and “better” and they are both happy.
Minister’s submissions and consideration
Ground one
By the first “ground” in his application, the applicant asserts that he was not mentally prepared for the hearing before the Tribunal.
The Minister submitted that while the Tribunal did accept that the applicant had some stress, anxiety and depression, on the day of the hearing the applicant was fit to proceed. There is no evidence that the applicant had any sort of medical condition which would have rendered him “entirely unfit” to attend a Tribunal hearing and answer questions[24]. The hearing proceeded via telephone, which was recommended by Mr Kleynhans in the 22 August 2018 report which was before the Tribunal. To the extent that the ground asserts a lack of procedural fairness on the part of the Tribunal, the Minister says that it fulfilled its obligations under s 360 of the Act.
[24] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34] per Tracey J; SZOVP v Minister for Immigration and Citizenship (No 2)[2011] FMCA 442 at [48] per Driver FM
As described above, the rules of natural justice require that the applicant be given notice of the hearing before the Tribunal and the opportunity to be heard. On a fair reading of the correspondence in the court book and the Tribunal’s reasons I am satisfied that occurred. The right to natural justice does not mean that the applicant has a right to peak mental preparedness. It is inevitable that even a procedurally fair hearing process will be unfamiliar and stressful.
It is ultimately up to the Tribunal to conduct the hearing in a way which meets the objective of procedural fairness. It is clear that the Tribunal took into account previous requests for postponements and conducted the hearing in a way which sought to accommodate the applicant’s vulnerabilities as conveyed by Mr Kleynhans.
Ground one is not made out.
Ground two
By his second ground, the applicant asserts that the Tribunal “refused to see medical condition raised in the case”. This is a vague assertion but I take it to be an allegation that the Tribunal did not properly consider his or his wife’s mental health.
In its reasons, the Tribunal notes the various items of documentary evidence provided regarding the applicant and sponsor’s mental health. It certainly did not reject the applicant and sponsor’s claims regarding their mental health in their entirety. The Minister submits that the Tribunal extensively considered this evidence, and gave some weight to it, but it was open for it to conclude at [64] that the evidence was not sufficiently convincing as to persuade the Tribunal to waive the schedule 3 criteria based on health circumstances.
In my view the applicant seeks impermissible merits review. I agree with the Minister that the Tribunal extensively considered the medical information and reports submitted by the applicant. The weight to be accorded to that evidence is a matter for the Tribunal. Save for one possible exception (discussed below at ground 7) there is no evidence that any medical information was overlooked. Ground two is not made out.
Ground three
By his third ground, the applicant asserts that the Tribunal failed to consider Mr Kleynhans’ evidence.
The Minister submits that the Tribunal considered Mr Kleynhans' evidence at [47] and [55] of its reasons, and expressed its concerns with that evidence at [56]. It was open for the Tribunal to give such material the appropriate weight[25] and to conclude at [62] that the reports had been obtained primarily to assist in a migration outcome. In the circumstances of the case, that conclusion was rational even if another Tribunal might have concluded differently.
[25] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]
If it is alleged that the Tribunal failed to consider Mr Kleynhans’ report dated 12 October 2018, it is to be noted that report was received by the Tribunal after it had made its decision on 11 October 2018. When Mr Kleynhans sent his additional report, the Tribunal was functus and therefore it was not possible for the Tribunal to consider this piece of evidence.
Ground three is not made out.
Ground four
By his fourth ground, the applicant asserts that the Tribunal made its decision on the basis of the applicant’s entire immigration history, and should have only considered his circumstances at the time of the application.
The Minister submits that the Tribunal was entitled to take all the circumstances into account, including events after the visa application was made. The discretion to find or not find compelling circumstances for the waiver of visa criteria is a wide one. The correct approach as laid out in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 is as follows:
“[…] cl 820.211 of the Migration Regulations 1994 (Cth), read with the heading, requires that, where applicable, criteria 3001, 3002 and 3003 must be satisfied as at the time of application. However, that proposition says nothing about the Minister’s power to dispense with the application of those criteria or the time at which that power may be exercised. As demonstrated by Robertson and Griffiths JJ, the power is designed to provide flexibility in the operation of the legislative and regulatory scheme. That flexibility ought not be limited by limiting the circumstances which may be relevant to the exercise of the power, at least in the absence of any statutory or regulatory requirement.”
The applicant’s immigration history was clearly a relevant consideration in the exercise of ministerial discretion. The Tribunal gave the applicant an opportunity to explain his immigration history and at [65] performed the task required of it when it did not find any suitable explanation for the applicant’s long period of unlawfulness. The Tribunal described the applicant’s immigration history as “appalling”[26], a strong finding but one that was rationally open to it in the absence of any satisfactory explanation.
[26] CB 201
The Tribunal gave the applicant’s evidence weight as it saw fit, and in any event did not make its decision to refuse the visa based solely on the applicant’s immigration history. I agree with the Minister that ground four is not made out.
Ground five
By his fifth ground, the applicant asserts that the Tribunal had concerns with the evidence regarding the very short time that the parties knew each other before they married.
At [38] of its reasons, the Tribunal noted that it invited the applicant to raise any matters he considered compelling reasons for the waiver of Schedule 3 criteria. In response to that invitation the applicant gave evidence that his relationship with the sponsor was of some four years’ duration.
At [40] the Tribunal acknowledged that a long-standing relationship may be a reason to waive the legislative requirements, although cohabitation or living together is but one factor for consideration in that regard. Continuing on at [41], the Tribunal stated that it had “concerns with the evidence of the very short period of time the parties knew each other before committing to a lifetime together, particularly given the sponsor’s claimed difficulties”. Further, while accepting that four years have passed since the parties met, moved in together and married, the Tribunal was not satisfied that this long-standing period in itself amounted to a compelling reason sufficient to waive the Schedule 3 criteria.
From paragraphs [42]-[44] the Tribunal provides further rationale for its decision-making. The Tribunal did not dismiss the applicant’s claims that he was in a genuine spousal relationship or evidence that the applicant and sponsor had been married for four years. Rather, the Tribunal went on to explain, citing relevant authority, that the notion of “compelling reasons” must involve something in addition to the basic prerequisite criteria for the grant of the visa. In other words, the compelling reasons not to apply the criteria must go beyond whether or not the applicant and the sponsor are in a genuine spousal relationship - a criteria which applies to any partner visa application.
The applicant contends that the sponsor’s evidence pertaining to the short period the parties knew each other is contained in her statutory declaration. The applicant implies this evidence was not properly considered.
The Minister submits that the Tribunal’s reasons transparently reveal that the sponsor’s evidence was considered.
At [60] of its reasons, the Tribunal notes that the sponsor has provided a statement of her health and concerns regarding separation from the applicant should he be required to return home. The Tribunal goes on to refer to a “letter of the sponsor” in the context of the sponsor’s mental health, quoting her statement that the Tribunal proceedings cause her “more mental issue which can lead me to do stupid things (likes drugs and taking the suicidal thoughts in my mind)”. It does not directly reference the part of letter from the sponsor that details the context in which the parties met and were shortly married.
On a fair reading of the Tribunal’s reasons, it is clear that the sponsor’s evidence was before the Tribunal and considered. In discharging its obligation to consider the evidence, it is not necessary for the Tribunal to refer to every individual item or argument. Further, the Tribunal “is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”[27].
[27] Plaintiff M1/2921 v Minister for Home Affairs [2022] HCA 17 at [25]
I am satisfied that it was open for the Tribunal to conclude that the parties’ relationship history in itself was not enough to waive the schedule 3 criteria. I agree with the Minister that ground five constitutes impermissible merits review and cannot be made out.
Ground six
By his sixth ground, the applicant seeks to impugn the Tribunal’s expression of concern, at [59] of the reasons, about Mr Kleynhans’ oral evidence where he said that he was not aware of the extensive period the applicant had remained unlawfully in Australia. The applicant submits that Mr Kleynhans was aware that the applicant was an unlawful non-citizen and that this would have been apparent to the Tribunal if it had read Mr Kleynhans’ first report carefully.
The Minister conceded that the first report from Mr Kleynhans dated 11 December 2014 did note that the applicant had been an unlawful non-citizen. However, in his oral evidence Mr Kleynhans revealed that he was not aware of the “extensive” period of the applicant’s unlawful stay in Australia. The Minister submits that it was open to the Tribunal to express concerns about this more comprehensive evidence.
In my view, this ground does not reveal any jurisdictional error. Mr Kleynhans’ state of knowledge does not change the incontestable fact that the applicant was unlawful for four years prior to the commencement of his relationship with the sponsor – a finding which the Tribunal was entitled to give great weight.
Ground seven
At [59] of its reasons, the Tribunal found that the applicant’s evidence in relation to health matters was “not always reliable”. A foundation for that finding was the applicant’s evidence that he had been prescribed medication for stress and his reliance upon a prescription for Doxycycline, an antibiotic, as evidence that he was being treated for that mental health condition.
By his seventh ground, the applicant contends that the Tribunal fell into error by failing to make any reference in its reasons to the Lexapro tablets which were also listed on the prescription that he supplied to the Tribunal. Lexapro is an anti-depressant medication and the applicant contends that the prescription corroborates his evidence that he had seen a GP for both a urinary infection and stress. The applicant submits that if the whole of the prescription was read properly and taken into account the adverse finding about his reliability would not have been open.
The applicant further alleges that the Tribunal’s failure to reference the Lexapro prescription is evidence that the Tribunal had already made up its mind on the visa application. This is tantamount to a claim of actual or apprehended bias, or a failure to consider evidence which was critical to the decision-making process.
The Minister submits that the Tribunal’s failure to notice the Lexapro prescription should be seen as an oversight, rather than purposefully selective[28]. In any event, the Tribunal did accept that the applicant may have been prescribed medicine for stress and suffered some stress. The unreliability of the applicant’s evidence arose from the fact that he cited an antibiotic when asked to explain the treatment he was receiving for stress.[29]
[28] NADH of 2001 v Minister of Immigration (2004) 214 ALR 264 at [115]
[29] CB 200; Tribunal’s reasons at [59]
The Minister concedes that a failure to demonstrate proper consideration of favourable evidence can be indicative of a mind not open to persuasion[30]. However, the Minister asserts that the “Tribunal member’s decision record alone cannot be relied on to support a finding of apprehension of bias[31], and nor can any inference of bias be drawn from the mere fact of adverse findings in its reasons[32]”.
[30] See, for example: SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125
[31] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67]
[32] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
In my view, the Tribunal did not fall into jurisdictional error by overlooking or failing to mention the prescription for Lexapro.
Even if the Tribunal made a mistake and did not read the prescription as carefully as it should have, the Tribunal nonetheless accepted that the applicant had some stress, anxiety and depression[33] and that he may have been prescribed medication for stress[34].
[33] Tribunal’s reasons at [56]
[34] Tribunal’s reasons at [59]
In my view, read as a whole, the Tribunal’s concerns with the medical evidence extended well beyond the prescription issue. So much is evident from a reading of paragraphs [56]-[62] of the reasons.
At [62] the Tribunal explained its real “major concerns” with the medical evidence. There, the Tribunal found that the psychologist’s reports appeared to have been based on symptoms as described by the sponsor and the applicant. The Tribunal found that there was no evidence in those reports to indicate the type of treatment, if any, that the sponsor and/or the applicant were currently undertaking for the claimed mental health issues. There were no detailed suggestions by the psychologist for further treatment. These findings lead to the Tribunal’s conclusion that the psychology reports had been obtained by the parties primarily to assist a migration outcome.
I refer also to the applicant’s evidence, cited at [58] of the Tribunal’s reasons, that the applicant attends classes twice a week with Mr Kleynhans and was paying $100 per class. That evidence cannot be reconciled with any evidence given by Mr Kleynhans to the Tribunal, and it was open for the Tribunal to express concern with that conflicting evidence.
The Tribunal’s finding that the health evidence as a whole was not sufficient to waive the schedule 3 criteria, was not based on the prescription alone but self evidently on a range of other factors discussed in the reasons. If there was an oversight in failing to notice the Lexapro prescription it was not a material error because it was not a fundamental error that affected the Tribunal’s decision[35].
[35] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Nor do I find that the Tribunal’s reasons were affected by actual or apprehended bias. As mentioned earlier, a claim of actual or apprehended bias must be firmly and distinctly made and proven[36]. Apprehended bias may be made out where a fair minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision[37]. In my view, any failure to mention the Lexapro prescription, which was one item of evidence among many others, does not give rise to any inference of bias.
[36] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J
[37] Webb v R (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]
Ground seven is not made out.
Ground eight
By his eighth ground, the applicant asserts that Mr Kleynhans was not given any notice that the Tribunal would take evidence from him. I take this to be procedural fairness ground.
In his response to a hearing invitation attached to an email dated 5 October 2018, the applicant himself requested that the Tribunal take evidence from Mr Kleynhans and the psychologists contact details were provided. In the circumstances the Minister submits that it was the applicant’s duty to inform his psychologist of the hearing and that he had been named as a witness. Further, the Minister also points out that the Tribunal has an obligation to provide procedural fairness to the applicant only, and not the witnesses.
Mr Kleynhans was contacted by the Tribunal and he provided answers to the questions asked of him. The Tribunal was entitled to take Mr Kleynhans’ oral evidence on its face. There is no suggestion from the applicant that the Tribunal’s reasons misrepresent the evidence the psychologist gave.
In his report dated 12 October 2018, which was provided to the Tribunal after it had made its decision, Mr Kleynhans attempted to clarify his evidence and explain to the Tribunal that he may have expressed himself inaccurately due to time constraints. However, the 12 October 2018 report was not before the Tribunal and did not form part of the evidence on which the decision was based.
I agree with the Minister that ground eight should be dismissed. The Tribunal afforded procedural fairness to the applicant by inviting him to a hearing and allowing him to identify his witnesses. The applicant named the psychologist as a witness and provided his phone number. The Tribunal contacted Mr Kleynhans and took evidence from him. There is no evidence that the psychologist said that his evidence was incomplete or that he or the applicant required additional time to clarify matters. The Tribunal acted within power by making its decision on the material before it.
Ground nine
By his ninth ground, the applicant asserts that the Tribunal had concerns about the evidence regarding mental health plans, but the Tribunal never requested this type of evidence from the applicant. This ground is difficult to understand without particulars.
The Minister points to [52] and [62] of the Tribunal’s reasons, where it expressed concerns as to Mr Kleynhans’ reports not being reflective of any therapeutic treatment provided by him to the applicant and the sponsor. This finding reflects the Tribunal’s view that the medical reports only go so far in establishing compelling circumstances, and the Tribunal’s concern that the reports largely relay a narrative given to the psychologist.
The Minister contends that this ground invites impermissible merits review. I agree.
Ground ten
By his tenth ground, the applicant asserts that the postponement of the hearing on 27 August 2018 was because the Tribunal did not have an interpreter available, not for medical reasons.
The Minister submits that this assertion is incorrect. The Tribunal outlines the background to the matter, including previous adjournments of Tribunal hearings, at [12] to [21] of its reasons. It appears to be the case that the hearing originally scheduled for 27 June 2018 was adjourned because an “interpreter in the applicant’s language was unavailable last minute”. But then:
“On 27 August 2018 the applicant requested a further postponement. He provided a report by Mr Edwin Kleynhans dated 22 August 2018. On the basis of Mr Kleynhans’ report the Tribunal postponed the hearing.”
On the evidence before the Court, the applicant’s assertion that the 27 August 2018 hearing was postponed due to interpreter unavailability is wrong. In any event, the reason for the adjournment does not matter. The hearing was postponed and there were no natural justice consequences. The adjournment for whatever reason did not give rise to jurisdictional error. Ground ten should be dismissed.
Ground eleven
By his eleventh ground, the applicant asserts that the break given to the applicant during the hearing was too short. This ground asserts a denial of natural justice and the right to be heard.
In the report of Mr Kleynhans handed up to the Court at the final hearing before me, Mr Kleynhans recommends that the interview not last longer than 1 hour, “or if need be a break of 1 hour in between”. The Tribunal hearing record at CB 172-174 shows that the hearing commenced at 11.29am and was completed at 1.31pm, being a total of about two hours.
There is no evidence of any adjournment. The Minister asserts that the applicant did not raise the issue of breaks and there was no evidence of any breaks being taken during the hearing. The Minister submits that it was up to the applicant to ask for a break.
It is not possible, on the evidence, to make a finding about whether a break was requested by the applicant and denied, or ever offered by the Member to the applicant.
Ultimately, it is up to the applicant to establish the assertion that he sought and was denied a break. He also needs to establish that this denial materially impinged on his ability to put his case. On the available evidence I am not satisfied that the applicant has discharged this onus. Therefore, ground eleven is not made out.
Ground twelve
By his twelfth ground, the applicant asserts that the Tribunal did not ask questions about the applicant and the sponsor’s relationship and that the Tribunal was looking for reasons to refuse the visa.
The Minister points to the Tribunal’s reasons at [38] where it noted that “[a]t the hearing the Tribunal invited the applicant to raise any matters he considered compelling reasons for the waiver of Schedule 3 criteria”. The Tribunal also noted some of the evidence provided by the applicant in relation to the application, for example that the relationship had been of four years’ duration, but ultimately found that this alone was not a compelling reason to waive the Schedule 3 criteria.
Further, it was for the applicant to advance the evidence and arguments he wished in support of the application[38] - it was not for the Tribunal to do it for him[39].
[38] Abebe v Commonwealth [1999] HCA 14 at [187]
[39] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [52]
Insofar as this ground alleges apprehended bias, the applicant must demonstrate that there would be a reasonable apprehension on the part of a “hypothetical fair-minded layperson” that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. Apprehended bias has been discussed in relation to the grounds above and I am not persuaded that it is made out here.
I agree with the Minister that this ground should be dismissed.
Grounds thirteen to fifteen
By grounds thirteen to fifteen, the applicant asserts that:
·the Tribunal did not listen to his evidence about how his “school” put him in a difficult situation;
·the Department did not update his visa status which meant he remained unlawfully in Australia from 2016 to 2017; and
·the Court should consider his case as a whole.
The Minister submits that these grounds are vague and do not allege error on the part of the Tribunal. In my view the applicant is seeking impermissible merits review[40].
[40] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
DISPOSITION
For the reasons set out in the foregoing discussion, the applicant has not established that the Tribunal decision is affected by jurisdictional error.
Accordingly, the application must be dismissed and I will hear the parties on costs.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 23 August 2024
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