Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 1126
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1126
File number(s): MLG 3206 of 2020 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 1 December 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – where the applicant remained in Australia unlawfully for four years following expiry of student visa before applying for partner visa – where partner visa refused on basis of failure to meet Schedule 3 criteria – consideration of whether Tribunal erred in its consideration of whether the applicant had ‘compelling reasons’ to waive the Schedule 3 criteria – claim that Tribunal considered length of marriage instead of length of relationship – claim that Tribunal applied government policy resulting in abdication of own function of independent review – further consideration of permissible use of transcript of Tribunal hearing to establish ground of review – no jurisdictional error established – application dismissed with costs. Legislation: Migration Regulations 1994 (Cth), cl 820.211 Cases cited: Choi v Minister for Immigration and Border Protection [2018] FCA 291
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143
Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of last submission/s: 23 August 2023 Date of hearing: 23 August 2023 Place: Melbourne Counsel for the Applicant: Mr S Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
MLG 3206 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARAMVIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 22 May 2023 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 28 July 2020. By its decision, the Tribunal affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa (‘partner visa’) under section 65 of the Migration Act 1958 (Cth).
BACKGROUND
The applicant is a citizen of India.[1]
[1] Court book at page 2.
Applicant’s immigration history
The applicant initially arrived in Australia on 31 December 2007 on a student (subclass 573) visa.[2] From 30 January 2008, the applicant was granted a series of further student visas, the last of which expired on 30 June 2013. The applicant then remained in Australia unlawfully for a period of almost four years, between 1 July 2013 and 15 June 2017.
[2] Court book at page 133.
Application for partner visa on 14 June 2017
On 14 June 2017, the applicant made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa (‘partner visa’) and Partner (Residence) (Class BS) (Subclass 801) visa.[3] On 15 June 2017, the applicant was granted a bridging visa in association with his combined partner visa applications, and on 21 June 2017, was granted a bridging visa with permission to work.[4]
[3] Court book at page 1 and following.
[4] Court book at page 133.
The applicant’s partner visa application was made on the basis of his marriage to Ms Manpreet Kaur, who is an Australian citizen (‘the sponsor’).[5]
[5] Court book at pages 5-6 and 8.
In his partner visa application, the applicant indicated that he married the sponsor on 3 May 2017 in Melbourne, but that they entered a committed relationship with each other in October 2015, having initially met in January 2015.[6]
[6] Court book at page 8.
On 14 August 2017, the Department of Immigration and Border Protection (‘the Department’) wrote to the applicant, inviting him to comment on the fact that he did not hold a substantive visa at the time that he lodged his partner visa application.[7] The correspondence confirmed that the applicant’s previously granted student visa (subclass 572) had ceased on 30 June 2013.
[7] Court book at page 92.
Relevantly, the letter advised the applicant as follows:
For Partner visa applications lodged within Australia, the Migration Regulations state that, if you are not the holder of a substantive visa at the time of lodging your Partner visa application, you must satisfy additional Schedule 3 criteria (emphasis in original) (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying the standard Partner visa criteria. Schedule 3 criteria does not apply to offshore Partner visas, and failure to satisfy Schedule 3 does not prevent you from lodging a Partner application outside Australia.
Criterion 3001 requires that an application was made within 28 days after your substantive visa ceased. You do not meet criterion 3001, however the Migration Regulations allows the Schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria.
The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria. Circumstances are considered on a case by case basis.
You (and your sponsor) are invited to put forward any claims you would like the Department to consider.
You should explain in detail the circumstances that led you to become a person who is not the holder of a substantive visa and provide information relating to any compelling reasons you may feel apply to your case.
You should also provide any relevant documents to support your claims.
In response to the Department’s invitation, the applicant provided a range of documents, including a certificate from Monash Women’s Health in relation to the sponsor’s attendance at the Women’s Health Service for pregnancy care and a divorce order confirming the divorce of the sponsor and her former husband dated 16 March 2017.[8]
[8] Court book at pages 98 to 117.
On 18 December 2017, the Department again wrote to the applicant requesting a certified copy of his child’s birth certificate, including the names of both parents.[9] On 27 December 2017, the applicant sent a copy of his child’s birth certificate to the Department, listing himself and the sponsor as the parents of their daughter.[10]
[9] Court book at page 118.
[10] Court book at pages 124 to 127.
Refusal of partner visa applications on 7 February 2018
On 7 February 2018, the Department wrote to the applicant advising that his applications for a partner visa had been refused.[11]
[11] Court book at pages 128 to 131.
A copy of the delegate’s decision record is at pages 133 to 137 of the court book.
In refusing the applicant’s applications for a partner visa, the delegate did not accept that the applicant satisfied subclause 820.211(2)(d) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
Application for review in Tribunal on 24 February 2018
On 24 February 2018, the applicant filed his application for review of the delegate’s decision at the Tribunal.[12]
[12] Court book at pages 161 and 162.
On 21 February 2019, the applicant sent documents to the Tribunal in support of his application for review.[13] This included a letter from Mr Bill Efremidis of Positive Solutions Psychological Services dated 15 February 2019 detailing the impact on the sponsor’s psychological health and well-being caused by ‘any ongoing uncertainty regarding her husband’s legal status in Australia, or by an involuntary separation on immigration grounds’.[14]
[13] Court book at page 167 and following.
[14] Court book at pages 168 to 170.
On 29 June 2020, the applicant was invited to attend a hearing before the Tribunal, scheduled for 20 July 2020.[15] The following day, the Tribunal wrote to the applicant inviting him to provide ‘details of any compelling reasons for not applying the Schedule 3 criteria in [his] case’.[16]
[15] Court book at pages 171 to 174.
[16] Court book at pages 175 to 177.
On 15 July 2020, the applicant sent various documents to the Tribunal in advance of his hearing, including a personal statement, a statement from the sponsor, a further letter from Mr Efremidis of Positive Solutions Psychological Services dated 7 July 2020 and a letter from Dr Thomas Verghese of Union Medical Centre dated 9 July 2020.[17]
[17] Court book at pages 189 to 200.
In his personal statement submitted to the Tribunal on 15 July 2020, the applicant stated that he could not apply for a partner visa offshore for the following reasons:
·his daughter was due to start kindergarten the following year;
·his son was due to start school the following year;
·his wife was experiencing poor mental and physical health and cannot care for herself and the children without him;
·he is supporting his family financially and mentally;
·his wife and children are very attached to him; and
·he and his wife intend to buy a house together.[18]
[18] Court book at page 190.
The hearing proceeded on 20 July 2020 by telephone as scheduled.[19] The sponsor also attended as a witness.[20]
[19] Court book at pages 201 to 204.
[20] Court book at page 201.
On 28 July 2020, the Tribunal wrote to the applicant informing him of its decision to affirm the decision under review to refuse him a partner visa.[21]
[21] Court book at page 208.
TRIBUNAL DECISION
The Tribunal’s decision record dated 28 July 2020 is at pages 209 to 218 of the court book.
At paragraphs [1] to [6], the Tribunal summarised the background to the review, including the basis on which the delegate had refused the applicant’s partner visa application.
The Tribunal also confirmed that a hearing was conducted on 20 July 2020 by telephone in circumstances where the COVID-19 pandemic remained a concern.[22] The Tribunal indicated that it had also received oral evidence from the sponsor at the hearing.[23]
[22] Tribunal decision record dated 28 July 2020 at paragraphs [5] to [6].
[23] Tribunal decision record dated 28 July 2020 at paragraph [5].
At paragraph [7] and following, the Tribunal went on to outline its reasons for affirming the decision under review to refuse the applicant a partner visa.
Consideration of Schedule 3 criteria
At paragraph [8], the Tribunal re-iterated that an applicant who is not the holder of a substantive visa at the time of lodging a visa application is required to meet the Schedule 3 criteria under clause 820.211(2)(d) of the Regulations, unless the Minister is satisfied that there are compelling reasons for waiving those criteria.
Noting that the applicant does not dispute that he did not hold a substantive visa at the time of application, at paragraphs [10] and [11], the Tribunal confirmed that the applicant did not file his partner visa application until almost four years after his previous visa had expired and therefore did not meet the 28-day requirement in criterion 3001. In those circumstances it was not necessary for the Tribunal to consider the remaining Schedule 3 criteria.[24]
[24] Tribunal decision record dated 28 July 2020 at paragraph [12].
Consideration of compelling reasons
The Tribunal then proceeded at paragraph [13] of its decision record to consider the central issue before it, namely, whether the Schedule 3 criteria should be waived on the basis that there were ‘compelling reasons’ to do so. At paragraphs [14] to [15], the Tribunal outlined the relevant case law in identifying what might be a ‘compelling reason’ for these purposes.
Applicant’s evidence
At paragraph [18], the Tribunal summarised the applicant’s evidence in relation to his employment history after his student visa had expired in June 2013.
At paragraph [19], the Tribunal noted the joint NAB and CBA bank account statements in the names of the applicant and the sponsor which span the period from November 2015 to August 2017.
At paragraph [20], the Tribunal directed the applicant to the fact that he had remained in Australia unlawfully for more than four years and the applicant’s response that ‘he was aware of his unlawful status during the period from 1 July 2013 to 15 June 2017 and offered no reason, other than his desire to remain in Australia, for not seeking to legalise his visa status’.
At paragraph [21], the Tribunal summarised the applicant’s evidence in relation to his relationship history with the sponsor, including the circumstances in which he lodged the partner visa application and had a child with her. Relevantly, the Tribunal noted that the applicant met the sponsor in 2015 and they married in 2017. The Tribunal noted that in response to a question about why he waited until they were married to lodge his application for a partner visa, the applicant ‘said he and the sponsor needed time to get to know each other’.
At paragraph [22], the Tribunal set out the applicant’s evidence regarding the compelling reasons for not applying the Schedule 3 criteria. Relevantly, the applicant said:
·that his stepson (the sponsor’s child from a previous marriage) was in kindergarten;
·his daughter with the sponsor was also about to commence kindergarten;
·the sponsor suffers from medical conditions and requires his help in looking after the children, such as taking the children to kindergarten;
·he was not sure what the sponsor’s diagnoses and treatment were, but indicated that the sponsor could provide that information in her evidence; and
·that the sponsor was stressed about his visa application refusal.[25]
[25] Tribunal decision record dated 28 July 2020 at paragraph [22].
At paragraphs [23] and [24], the Tribunal set out the applicant and the sponsor’s evidence about what would happen if the applicant were required to leave Australia temporarily to apply for an offshore visa, including whether the sponsor would go with him and whether the applicant would work in India.
The sponsor’s evidence
At paragraphs [25] to [36], the Tribunal summarised the evidence given by the sponsor regarding the impact on her and her family if the Tribunal found that there were no compelling reasons for not applying the Schedule 3 criteria.
Relevantly, the Tribunal:
·considered the two reports previously provided from Mr Efremidis,[26] as well as two reports from the sponsor’s general practitioner, Dr Verghese;[27]
·summarised its discussions of the sponsor’s back pain with her, as well as the sponsor’s evidence in relation to the psychological reports and her visits to Mr Efremidis;[28]
·noted the sponsor’s indication that she could not depart Australia temporarily with the applicant if he were required to leave, due to her son and daughter being due to commence school and kindergarten respectively;[29] and
·summarised the sponsor’s evidence in relation to her financial circumstances, including after the conclusion of her first marriage.[30]
[26] Tribunal decision record dated 28 July 2020 at paragraphs [26] and [27].
[27] Tribunal decision record dated 28 July 2020 at paragraph [28].
[28] Tribunal decision record dated 28 July 2020 at paragraphs [28]-[31] and [33].
[29] Tribunal decision record dated 28 July 2020 at paragraph [32].
[30] Tribunal decision record dated 28 July 2020 at paragraph [36].
Overall assessment
At paragraphs [37] to [45], the Tribunal set out its overall assessment of the applicant’s circumstances.
In relation to the sponsor’s physical health, the Tribunal was not satisfied of the claimed severity of her condition on the basis of the evidence before it.[31] Accordingly, it was not satisfied that her ‘physical health and claimed dependency on the applicant’ was a compelling reason for not applying the Schedule 3 criteria.
[31] Tribunal decision record dated 28 July 2020 at paragraph [39].
Similarly, in relation to the sponsor’s mental health, the Tribunal noted that the evidence before it indicated that the sponsor was not receiving ongoing or current specialist treatment or medication for her mental health conditions.[32]
[32] Tribunal decision record dated 28 July 2020 at paragraph [41].
At paragraph [41], the Tribunal accepted that:
41.…the applicant plays a positive role in the sponsor’s life, including from a psychological and mental health perspective. The Tribunal finds that the applicant can continue to provide the sponsor with emotional and psychological support whilst offshore lodging a Partner visa application through a wide range of technologies. The Tribunal accepts that the sponsor would prefer the applicant to provide his support in-person and understands it may be a challenge for her. The Tribunal however does not consider the sponsor’s mental health and the in-person support the applicant provides her is a compelling reason for it to waive the Schedule 3 criteria. In addition, the Tribunal notes that the sponsor can travel to India temporarily and not be separated from the applicant. Noting the ages of the children the Tribunal does not accept that commencement of school and kindergarten is a sufficient reason for not temporarily relocating the family to India.
In any event, the Tribunal considered that the sponsor would have capacity to look after the children on her own whilst the applicant lodged a visa offshore, noting that she previously managed to care for her son as a single parent.[33]
[33] Tribunal decision record dated 28 July 2020 at paragraph [42].
At paragraphs [43] to [44], the Tribunal considered the claimed impact of the applicant’s departure on his daughter and stepson and concluded that any impact on the applicant’s children of his temporary absence did not amount to a compelling reason to exercise a waiver.
At paragraph [45], the Tribunal considered the sponsor’s claimed financial hardship resulting from the applicant being required to depart Australia. Again, the Tribunal did not consider this a compelling reason for a waiver.
Relevantly, at paragraphs [46] and [47], the Tribunal went on to state:
46.The relevant Departmental policy requires consideration in this case because of the applicant’s migration history. The policy stresses that; …the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:
•Fail to comply with their visa conditions or
•Deliberately manipulate their circumstances to give rise to compelling reasons or
•Can leave Australia for a partner visa outside Australia.
47.Further relevant policy states that the purpose of the Schedule 3 criteria are three-fold; first to encourage persons to apply for a further substantive visa before their existing visa ceases to have effect, second to discourage persons from overstaying their visas and third to prevent non-citizens from benefiting by remaining in Australia unlawfully.
The Tribunal went on at paragraphs [48] to [49] to consider the applicant’s period of unlawful stay in Australia. Relevantly, at paragraph [48], after setting out the applicant’s migration history, the Tribunal said:
48.… The Tribunal has concerns about the applicant’s conduct in regard to the Partner visa and considered whether the timing of the application was an attempt to manipulate the migratory outcome by waiting until after the marriage and until the sponsor was pregnant to establish a likely compelling reason to meet the visa requirements. However, the Tribunal accepts the applicant’s evidence that he and the sponsor needed time to get to know each other and that the timing of the application was not an attempt to manipulate visa criterion.
At paragraph [49] the Tribunal said:
49.Notwithstanding, the applicant did not seek to legalise his visa status and the Tribunal considers the period of unlawfulness was not insignificant. The Tribunal places some weight on the applicant maintaining an ongoing presence in Australia without having a lawful right to do so as there does not appear to be any valid reason why his visa status was not dealt with. The Tribunal does not view the refusal of the applicant’s father to pay for his ongoing stay in Australia after 30 June 2013 as a compelling reason for not applying the Schedule 3 criteria.
At paragraph [50], although not a factor raised by the applicant or his wife, the Tribunal considered ‘whether the fact that the parties have been married for three years constitutes a compelling circumstance’.
At paragraph [51], the Tribunal noted that the mere fact that the parties are in a genuine and continuing relationship is not a reason in and of itself to constitute a compelling reason for not applying the Schedule 3 criteria, but that there must be a particular aspect of the relationship which establishes a compelling reason. Ultimately, the Tribunal concluded that there was no particular aspect of the relationship between the applicant and the sponsor which constituted a compelling reason for waiver.
The Tribunal then set out its assessment and conclusions about the evidence at paragraphs [52] to [54]. Ultimately, at paragraph [55], the Tribunal concluded that these circumstances singularly and cumulatively did not constitute compelling reasons for not applying the Schedule 3 criteria. It therefore found that the applicant did not meet subclause 820.211(2)(d)(ii) of the Regulations.
Accordingly, at paragraph [58] of its decision record, the Tribunal determined to affirm the decision under review not to grant the applicant a partner visa.
PROCEEDINGS IN THIS COURT
The applicant filed his application for judicial review in this court on 1 September 2020.
On 22 May 2023, the applicant filed an amended application with four particularised grounds of review, which I will return to later in these reasons. The applicant’s solicitor also filed an affidavit on this same date, annexing a copy of the transcript of the Tribunal hearing conducted by telephone on 20 July 2020.
Orders were made by consent on 31 July 2023 extending the time for the applicant and first respondent to file any supplementary court book and written submissions.[34]
[34] Orders of Deputy Chief Judge Mercuri dated 31 July 2023.
The hearing ultimately proceeded before me on 23 August 2023. On that occasion, the applicant was represented by counsel.
GROUNDS OF REVIEW
By his amended application filed on 22 May 2023, the applicant raised four grounds of review. In the applicant’s written submissions filed on 31 July 2023, the applicant indicated that ground 3 had been abandoned.[35] Moreover, at the hearing before me, counsel for the applicant indicated that ground 4 was also no longer being pressed.
[35] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [20].
Therefore, only grounds 1 and 2 of the amended application are pressed by the applicant.
I will consider each of these grounds in turn.
Ground 1
Ground 1 is put in the following terms:
1.The Tribunal failed to consider the applicant’s claim that the applicant and sponsor had been in a relationship since 2015.
Particulars
a.The applicant represented to the Tribunal that he had been in a relationship with the sponsor since 2015.
b.The Tribunal at [50] considered that the length of the relationship was a relevant factor going to whether compelling circumstances existed to waive schedule 3 criteria.
c.The Tribunal found that the applicant and sponsor having been married for three years did not constitute a compelling circumstance. (emphasis in original)
d.The Tribunal failed to consider that by the date of the hearing in July 2020, the applicant and sponsor had been in a relationship for 5 years.
e.The Tribunal erred by having regard to the length of the marriage, rather than the relationship, or in the alternative, it failed to consider the applicant’s claim that he had been in a relationship with the sponsor for five years.
f.The error was material.
The applicant says that the Tribunal erred in its consideration at paragraphs [50] and [51] of its decision record in that it had regard to whether the applicant’s three-year marriage to the sponsor was a compelling reason for waiver of Schedule 3, whereas the Tribunal should have had regard to the entirety of the applicant’s relationship with the sponsor which commenced in 2015.[36]
[36] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [7].
Further, it is submitted that the error is material because the length of the relationship may have affected the Tribunal’s assessment of the fundamental issue, namely whether there were compelling reasons to waive the application of the Schedule 3 requirements.[37]
[37] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [10].
In response, the Minister submits that when the Tribunal’s reasons are read as a whole and fairly, it is clear that, notwithstanding the reference to ‘marriage’ in paragraph [50], the Tribunal did have regard to the relationship as a whole and not just to the marriage.[38]
[38] Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [13].
For the following reasons, I accept the Minister’s submissions in relation to ground 1.
It is well accepted that a failure to consider an integer of a claim made by an applicant or which clearly arises from the material before the Tribunal can amount to a jurisdictional error.[39] The question here is whether there was such a failure.
[39] Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143 at [25].
The reference to the parties’ ‘marriage’ in paragraph [50] of the Tribunal’s reasons cannot be read in isolation. It is evident from a fair reading of the Tribunal’s reasons as a whole that the Tribunal was aware of, and had regard to, the relationship between the parties which commenced in 2015.
So much is evident from:
·paragraph [19], to the fact that the parties had joint bank accounts from November 2015 to August 2017;
·paragraph [21], to the applicant’s evidence that he met the sponsor in 2015; and
·paragraph [48], where the Tribunal refers to timing of the applicant’s visa application but ultimately accepted that the applicant and the sponsor ‘needed time to get to know each other and that the timing of the application was not an attempt to manipulate visa criterion’.
It is against this background that the Tribunal at paragraph [50] then raised the issue of whether the ‘fact that the parties have been married for three years constitutes a compelling reason’.
In framing that issue as one to be considered, it is true that the Tribunal referred to the length of the marriage between the applicant and the sponsor rather than the length of the relationship. However, when read in context, and in particular by reference to the consideration given to the issue raised in paragraphs [50] at [51] of the Tribunal’s decision record, a fair reading of the Tribunal’s reasons makes it clear that the Tribunal did have regard to the applicant’s relationship with the sponsor, not just the marriage.
The applicant says that the Tribunal defined the issue that it was considering in the opening words of paragraph [50], i.e. by reference to the length of the applicant’s marriage. And moreover, having defined the issue in this way, the subsequent references to ‘relationship’ can only properly be read as a reference to the length of the marriage itself. According to the applicant, this is an error.
As noted by Chief Justice Brennan and Justices Toohey, McHugh and Gummow in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 271 and 272:
… In that case, a Full Court of the Federal Court … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
Applying these principles to the reasons before the court, I find that on a fair reading, the Tribunal did not misdirect itself. Rather, I find that the Tribunal considered whether there was anything about the relationship as a whole, including the period prior to marriage, which rendered it a relevant consideration in determining whether there were compelling reasons to waive the Schedule 3 requirements. As stated, it concluded that there were not.
This interpretation is also open on the basis of the Tribunal’s reference to the Explanatory Statement to the 1996 Schedule 3 amendments.[40] In referencing this Explanatory Statement, the Tribunal is making it clear that it is aware that one factor which might be relevant to a finding of ‘compelling reasons’ is the length of an applicant’s relationship, and indeed, that a long-standing relationship of more than two years is one such factor.
[40] See Tribunal decision record dated 28 July 2020 at paragraph [50].
Similarly, it is clear that the Tribunal was inquiring into whether there were any features of the applicant’s entire relationship with the sponsor which constituted compelling grounds to waive the requirements of Schedule 3 when regard is had to the wording of the last sentence of paragraph [51] of the Tribunal’s decision record:
51.… The Tribunal has not considered the genuineness of the parties’ relationship however in the circumstances of this case the Tribunal does not consider that there are any particular aspects of the relationship between the applicant and the sponsor, even if a genuine relationship was established, which constitute a compelling reason for waiver.
The reference to ‘any particular aspects’ is a reference to all of the aspects of the applicant’s relationship with the sponsor, including the length of their relationship, not just their marriage. It would strain the reading of the Tribunal’s reasons to read this as only a reference to the applicant’s marriage to the sponsor.
Moreover, the Tribunal also noted at paragraph [51] that the mere fact that the parties were in a genuine and continuing relationship was not sufficient to be considered a compelling reason. The Tribunal noted that there had to be something more in the nature of the ‘particular aspects’ of the relationship which provide the compelling reason.
These observations are consistent with the law as noted by Chief Justice Allsop in Choi v Minister for Immigration and Border Protection [2018] FCA 291 when he said at paragraph [34] that:
34.… From a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Sch 3 criteria.[41] ….
[41] See, also, comments by Justice Katzman in Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490 at [53].
For these reasons, I find that a fair reading of the Tribunal’s reasons evidences that it concluded that having regard to the relationship between the applicant and the sponsor as a whole, not just the length of the marriage, the Tribunal was not satisfied that there was a sufficient ground to find a compelling reason for a waiver. Such a finding was reasonably open on the material before it and therefore discloses no jurisdictional error.
For these reasons, I find that ground 1 is not made out.
Ground 2
Ground 2 is made out in the following terms:
2.The Tribunal emphasised government policy such that it abdicated its own function of independent review.
Particulars
a.The Tribunal at [46] stated that “the relevant departmental policy requires consideration in this case because of the applicant’s migration history”. (emphasis in original)
b.The Tribunal at [46] quoted departmental policy as stating that the compelling reasons provisions were not intended to give an unfair advantage to persons who could leave Australia for a partner visa outside Australia.
c.During the hearing of the matter, in the context of a discussion of the potential for the applicant to apply for an offshore partner visa, the presiding member stated to the sponsor that she was “talking about your husband taking his proper place in the queue and not jumping the queue by staying in Australia unlawfully and that’s what he’s done”.
d.The Tribunal failed to note that it was not bound by departmental policy.
e.The Tribunal failed to independently consider the propriety of the departmental policy.
f.The error was material.
By ground 2, the applicant asserts that in referencing and applying the Departmental policy, the Tribunal effectively abdicated its function to undertake an independent review.[42]
[42] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [11].
In support of this ground, the applicant relies upon the decision of the Full Court of the Federal Court in Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 (‘Hneidi’). In particular, the applicant relies upon the principles which are set out at paragraphs [41] to [45] of that case.[43]
[43] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [12].
In Hneidi, the issue was:
9.…whether the Tribunal had made its own independent assessment of the material in coming to the correct or preferable decision. This question arises in light of the fact that the Tribunal had regard to [departmental policy] and considered that there was an insufficient basis to depart from them.
It is submitted for the applicant that in this case, it is evident from the Tribunal’s decision record, when read with the transcript of the hearing before the Tribunal, ‘that the major reason for not finding compelling reasons was the government policy referred to in the decision’.[44]
[44] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [14].
The applicant says that the Tribunal concluded that because the applicant could apply for a partner visa offshore, any hardship suffered by the sponsor arising from the applicant’s departure from Australia could not constitute a compelling reason to waive the Schedule 3 criteria.[45]
[45] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [15].
This submission is premised on the Tribunal’s reasons at paragraph [46] where it says:
46.The relevant Departmental policy requires consideration in this case because of the applicant’s migration history. The policy stresses that; … the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:
•Fail to comply with their visa conditions or
•Deliberately manipulate their circumstances to give rise to compelling reasons or
•Can leave Australia for a partner visa outside Australia.
The principles in Hneidi regarding the circumstances in which a decision maker may have regard to government policy are enunciated as follows:
40.The seminal authority on the entitlement of an administrative decision-maker to take into account a statement of governmental policy is the decision of the Full Court in Drake, in particular the joint judgment of Bowen CJ and Deane J at 590-591.
41.For present purposes, four relevant propositions emerge from their Honours' consideration of that question. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
42.Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
43.Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
44.Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“ … it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”
It is submitted for the applicant that in this case, the Tribunal neither considered the propriety of the particular policy nor did it acknowlege that it was not bound to apply the policy.[46] Rather, the applicant submits that it simply said that the case ‘required’ consideration of the policy.
[46] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraphs [16] and [17].
Further, in pressing this ground, the applicant seeks to rely upon a transcript of the hearing before the Tribunal.[47] The applicant submits that the transcript makes clear that the Tribunal was focussed on the applicant’s ability to apply for a partner visa offshore. Moreover, the applicant says that this focus had the result that no hardship faced by the applicant or his family could therefore provide compelling reasons to waive the Schedule 3 requirements.[48]
[47] Affidavit of Madeline Jane Keating affirmed on 19 May 2023 and filed on 22 May 2023 at Annexure MK-1.
[48] See, for example, Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [18].
In particular, the applicant points to the following comment made by the Tribunal member to the sponsor:
Member:But Mrs. Kaur, I can’t stress this enough because I’ve already said it a number of times. We are not talking about permanently relocating to India. We are talking about your husband, taking his … proper place in the queue and not jumping the queue by staying in Australia unlawfully and that’s what he’s done.[49]
[49] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [18].
The applicant submits that in adopting this approach, the Tribunal failed to discharge its statutory task and failed to undertake an independent review.[50]
[50] Applicant’s Outline of Submissions filed on 31 July 2023 at paragraph [19].
The Minister submits that this ground is misconceived both in fact and in law.[51] For the following reasons, I agree.
[51] Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [18] and following.
A fair reading of the Tribunal’s reasons do not indicate that the Tribunal applied the Departmental policy without considering whether it should do so. Rather, it is clear from a fair reading of the opening sentence in paragraph [46] of the Tribunal’s reasons that the Tribunal is saying that in the circumstances of this case, and given this applicant’s particular migration history, it is appropriate to have regard to the Departmental policy.
Moreover, the Tribunal goes on at paragraph [47] to explain its understanding of the underlying purpose of the Schedule 3 criteria in a way which makes it clear that the Tribunal’s concern in this case was the fact that the applicant had remained in Australia unlawfully for four years and that he had conceded that he knew at that time that he did not hold a valid visa permitting him to do so.
I agree with the submissions for the Minister that a fair reading of the Tribunal’s reasons at paragraph [46] make it clear that the use of the word ‘requires’ means that the Tribunal formed the view that the circumstances of the case ‘demanded’ or ‘called’ for a consideration of the policy because it was appropriate to do so.[52] Implicit in that interpretation is an understanding by the Tribunal that it was not compelled to consider the policy.
[52] Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [19].
I also agree that when the Tribunal’s reasons are read in their entirety, it is clear that the Tribunal’s concern was the factors set out in the first two dot points of paragraph [46], namely the applicant’s failure to comply with his visa conditions and whether he had deliberately manipulated his circumstances to give rise to compelling reasons.[53] It did not consider the fact that the applicant could leave Australia and apply for a partner visa offshore.
[53] See Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [20].
As noted by the Minister, there are references in the transcript to the applicant’s ability to apply for a partner visa offshore. The Minister submits however, however, that it is not permissible to refer to the transcript in this way.[54] Rather, the issue in an application for judicial review is whether any error in the Tribunal’s decision is revealed, not whether the transcript reveals an error. It is not uncommon for a Tribunal to say things during a hearing, in testing the evidence and otherwise as a means of ensuring that it understands the submissions, which ultimately do not find their way into the reasons.[55]
[54] Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [22].
[55] Minister’s Outline of Submissions filed on 10 August 2023 at paragraph [22].
There is much force to this submission.
The exchanges between the Tribunal and the sponsor, and indeed with the applicant, indicate that the Tribunal was seeking to understand the impact on the applicant, and the sponsor, if the Schedule 3 requirements were not waived. As part of this, the Tribunal was exploring the hardship that the sponsor if the applicant had to leave the country temporarily to apply for a visa offshore. It was in this context that the Tribunal was teasing out the different levels of hardship that the sponsor might face if the applicant had to leave permanently or temporarily.
This type of exchange is not uncommon in the course of a hearing where claims and evidence are tested. Ultimately, the type of error alleged in ground 2 must be grounded in the Tribunal’s reasons and not in the transcript of the hearing.
There is nothing in the Tribunal’s reasons to suggest that it applied the Departmental policy in the manner alleged. As stated above, it is apparent from its reasons that it was aware that it was not bound to apply the policy, but that having regard to the underlying purposes behind the Schedule 3 criteria and given the applicant’s migration history, it was appropriate to consider the policy in this instance.
For each of these reasons, ground 2 is not made out.
CONCLUSION
As neither grounds 1 or 2 are made out, and grounds 3 and 4 are no longer pressed, the applicant’s application ought be dismissed and an order for costs made.
I therefore make the orders set out at the commencement of these written reasons for judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 1 December 2023
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