Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 87

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 87

File number(s):	SYG 1266 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	18 February 2022
Catchwords:	MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Partner visa on the ground applicant did not satisfy criterion 3001 – whether Tribunal made jurisdictional error in not determining there are compelling reasons for not applying criterion 3001 – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss.5(1), 5F, 476 Migration Regulations 1994 (Cth), reg.1.15A, Sch.2, cls.820.211, 820.221(2)
Division:	General
Number of paragraphs:	56
Date of hearing:	10 June 2021
Place:	Sydney
The Applicant:	Appeared in person, assisted by an interpreter
Solicitor for the First Respondent:	Ms C Juarez of Minter Ellison

ORDERS

SYG 1266 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

TANDEEP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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

INTRODUCTION

1. The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).

   BACKGROUND

2. The applicant is a national of India. He first entered Australia in December 2007 as the holder of a Student visa. The Student visa expired in September 2011.

3. On 15 August 2014 the applicant applied for a Partner visa. To have been entitled to the grant of a Partner visa the applicant had to satisfy, among other things, cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph applies to an applicant who does not hold a “substantive visa”; and it requires such applicant to satisfy “Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”. Criterion 3001 relevantly provides as follows:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   . . . .

   (c)       if the applicant:

   (i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)  entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii) the last day when the applicant held a substantive . . . visa . . .

4. The expression “substantive visa” is defined in s 5(1) of the Act to mean a visa other than a bridging visa, a criminal justice visa, or an enforcement visa. The only substantive visa the applicant held was a Student visa, which ceased in September 2011. That means the applicant could not satisfy criterion 3001 at the time he applied for the Partner visa and, therefore, cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations. That, in turn, means that before the applicant could have been granted a Partner visa, and assuming he satisfied all other criteria, the Minister had to be satisfied there are compelling reasons for not applying criterion 3001.

5. Also relevant to the proceedings are two other provisions or sets of provisions. The first is cl 820.211(2)(a) of Schedule 2 to the Regulations, which requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i)live together, or

   (ii)do not live separately and apart on a permanent basis.

6. Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for a Partner visa, among other subclasses of visas, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters include the following:

   (a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and

   (b)the nature of the household, including any joint responsibility for the care and support of children; and the living arrangements of the persons; and any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; and the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including the duration of the relationship; and the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.

7. The second set of provisions specify requirements that must be satisfied at the time of decision. One is cl 820.221(2) of Schedule 2 to the Regulations which requires, subject to exceptions, that the applicant continues to meet the requirements of (among others) cl 820.211.

   THE APPLICANT’S CLAIM FOR A PARTNER VISA

8. The applicant applied for a Partner visa on the basis that he is the spouse of a permanent resident (Sponsor). In a letter the applicant submitted to the delegate,[1] the applicant claimed he first met the Sponsor in April 2011. From the first date he and the Sponsor liked each other; and from March 2012 they started to live together, and planned to start a family. The applicant said that he and the Sponsor opened a joint bank account, and he and the Sponsor have a “workers club membership card”.

   [1] CB229

9. In a letter dated 13 August 2014 the Sponsor said that she first met the applicant in April 2011. The Sponsor had lost her baby in May 2010 due to the mistake of what was then known as the Department of Community Services.[2] The applicant felt sorry for the Sponsor, and she and the applicant became emotionally attached. The Sponsor cannot live without the applicant. The Sponsor is still grieving the loss of her baby, she is suffering from mental health issues, and the Sponsor has many illnesses, such as high blood pressure, low iron levels, and pain in the middle of her chest due to a heart problem.

   [2] CB230

10. In a letter dated 3 October 2014 the applicant claimed he did not hold a substantive visa at the time he applied for the Partner visa because he did not have enough money to apply for one.[3] The applicant further claimed that the Sponsor relies on the applicant for ongoing and continuous care; the applicant and Sponsor would suffer “significant psychological and material hardship” if the applicant were required to apply for a Partner visa offshore because the applicant is the sole breadwinner.

    [3] CB213

11. The applicant supported his application with a statutory declaration made by a Ms R.[4] Ms R is a caseworker at an organisation that provides social services. Ms R said she assisted the Sponsor obtain accommodation in a house after the Sponsor was referred as a client. The Sponsor had a child who had been taken into the care of the Department of Community Services. The child suddenly died, and Ms R worked closely with the Sponsor for a number of months as she grieved the loss of her child. Ms R worked on a weekly basis with the Sponsor until Ms R left the organisation in May 2012. Ms R has remained in contact with the Sponsor, and she and the Sponsor have lunch every few months. Ms R met the applicant in 2011 a few weeks after he and the Sponsor began their relationship, when the Sponsor brought the applicant to the organisation, and introduced him. That was the only occasion on which Ms R met the applicant, but the Sponsor was “always talking about [the applicant] and their relationship”. Ms R also said that the applicant and the Sponsor had been living together for two years, and before they began to live together the applicant would regularly stay overnight with the Sponsor. The Sponsor had often told Ms R that she wants to have a baby with the applicant, but she has not been able to fall pregnant.

    [4] CB33

12. On 6 July 2016 a delegate of the Minister refused to grant the applicant a Partner visa. The delegate found that the applicant did not hold a substantive visa at the time he applied for the Partner visa, and there were no compelling reasons for not applying criterion 3001.[5]

    [5] CB247-251

    BEFORE THE TRIBUNAL

13. The applicant and the Sponsor each provided to the Tribunal a written statement.[6] The applicant also submitted a report dated 5 March 2017 prepared by a Dr Y stating that the Sponsor suffers from a number of medical conditions, including anxiety and depression.[7] Dr Y stated the Sponsor “is highly anxious about her current marital status worrying constantly that her husband may be deported any day”, and that this “is adversely affecting her physical and mental well being [sic]”. Dr Y further stated that the Sponsor is very dependent on the applicant, and is unable to cope with activities of daily living on her own.

    [6] CB285, 286

    [7] CB332

14. The applicant also provided two reports from a psychologist, Ms B. In the first report, which is dated 8 August 2016,[8] Ms B stated that Dr Y referred the Sponsor to Ms B for the treatment of depression. The Sponsor presented with complicated symptomatology, and Ms B assessed the Sponsor as having depression in the moderate range, anxiety in the extremely severe range, and stress in the severe range. Ms B said the Sponsor reported a high dependency on the applicant for emotional and financial support, and that the Sponsor’s elevated psychological distress is attributed to the recent refusal of the applicant’s application for a Partner visa. Ms B further stated that the applicant’s support is invaluable to the Sponsor, given she has no family in Australia or a social support network; and that the Sponsor’s existing vulnerability and emotional distress is likely to be further exacerbated so that “an expedited and favourable visa outcome is highly recommended to ensure [the Sponsor] continues to receive the high level of care and support she requires”. In her second report, which is dated 12 March 2017, Ms B makes substantially the same statements.[9]

    [8] CB334

    [9] CB335

15. The applicant gave evidence before the Tribunal on 30 March 2017.[10] This included evidence about the medical treatment the Sponsor received. The applicant said the Sponsor saw the psychologist in 2010 on a couple of occasions, but did not see anyone again until 2016. The applicant said the Sponsor saw a psychologist three times since August 2016, and the Sponsor had been referred to grief counselling which she will start in April 2017.[11]

    [10] CB358

    [11] CB438-439, [33]

16. Ms R also gave evidence before the Tribunal. Ms R said that the applicant never attended any counselling sessions with the Sponsor, and that Ms R’s evidence of the emotional support the applicant has been giving to the Sponsor was based on what the Sponsor had told Ms R.[12]

    [12] CB437, [28]

    TRIBUNAL’S REASONS

17. The Tribunal found the applicant did not hold a substantive visa at the time he applied for a Partner visa and, for that reason, criterion 3001 applied unless the Tribunal was satisfied there are compelling reasons for not applying the criterion.

18. The Tribunal was not satisfied the applicant could not have found funds to make a visa application;[13] and it found that the applicant’s delay in applying for a Partner visa suggested the applicant did not have a genuine and committed relationship with the Sponsor from 2011 or 2012, as the applicant claimed.[14] In any event, the Tribunal found that the applicant’s being unable through lack of funds to apply for a Partner visa earlier than he did was not relevant to determining whether there are compelling reasons for not applying criterion 3001.[15]

    [13] CB435, [15]

    [14] CB435, [15]

    [15] CB347, [25]

19. The Tribunal did accept, however, that the applicant and Sponsor were in a genuine and committed relationship from 2013; but it was not satisfied there are compelling reasons not to apply criterion 3001.[16] The Tribunal relied on the following matters:

    [16] CB435, [16]

    (a)Given that a genuine spousal relationship is the basic requirement for the grant of a Partner visa, the applicant’s being in a genuine spousal relationship does not by itself constitute a compelling reason for not applying criterion 3001.[17]

    [17] CB436, [17]-[23]

    (b)The applicant’s providing emotional support to the Sponsor, and the Sponsor’s reliance on that support, are normal indicia of a spousal relationship and would not, even in the circumstances of the case before the Tribunal, constitute a compelling reason for not applying criterion 3001.[18]

    (c)The Tribunal acknowledged the “special circumstances of this case”, as noted by Ms R’s statement. The Tribunal noted, however, that in evidence given to the Tribunal Ms R said that the applicant did not attend any counselling sessions with the Sponsor, and that Ms R’s evidence of the emotional support the applicant has given to the Sponsor was based on the Sponsor’s own claims. The Tribunal considered this to be of little probative value.[19]

    (d)There is no reason why the applicant would be unable to continue to give the Sponsor support if he is to leave Australia. If the relationship between the applicant and Sponsor is genuine, the applicant will be able to continue to provide support while he is offshore. For that reason, the applicant’s providing the Sponsor with emotional support does not constitute a compelling reason.[20]

    (e)The Tribunal found the applicant’s assertions that the Sponsor could not survive without the applicant, even for a month, and may commit suicide, to be entirely unsupported by probative evidence. The Tribunal found that the Sponsor is receiving effective treatment, and the evidence did not satisfy the Tribunal that the Sponsor’s conditions would deteriorate unless the waiver is applied.[21]

    (f)The Tribunal considered Dr Y’s report to be inadequate because it does not explain how Dr Y became aware of the information set out in the report. The report does not indicate whether Dr Y observed the Sponsor’s interactions with the applicant or whether these observations “are based entirely on self-reporting”.[22]

    (g)The Tribunal noted that Ms B’s reports were prepared in relation to the applicant’s application for a Partner visa, and the diagnosis was based on “DASS, which is a self-assessment questionnaire”. Given these matters, the Tribunal found the reports were prepared to assist the applicant with his visa application; and it considered any self-reporting to be unreliable. The Tribunal concluded the evidence concerning the Sponsor’s depression and mental state was prepared for the purpose of the visa application, and considered that such evidence was self-serving and unreliable.[23] Further, given the Sponsor consulted a psychologist in 2010, but resumed consulting a psychologist only in the week in which the applicant’s application for a Partner visa was refused, the Tribunal found that this was arranged for “the benefit of preparing evidence in support of the applicant’s visa application and not to assist the [S]ponsor in managing her condition”.[24]

    (h)The Tribunal found the applicant was unable to state what treatment the Sponsor was receiving between 2010 and 2016; he was evasive in his answers, and ultimately stated the Sponsor did not seek psychological help between 2010 and 2016. Further, although the Sponsor said she regularly takes medication, the applicant could not state the name of the current or previous medication the Sponsor regularly takes.[25] The Tribunal found that the applicant’s knowledge of the Sponsor’s health is not consistent with the role the applicant claimed he played in managing the Sponsor’s health.[26]

    (i)The Sponsor has been working as a cleaner for 20 hours a week. That the Sponsor has been able to maintain employment, and has had limited access to a health professional between 2010 and the applicant’s visa refusal in July 2016 concerning her mental health, suggested to the Tribunal that the applicant’s evidence concerning the Sponsor’s condition, and his role in helping her, had been exaggerated.[27]

    (j)The applicant gave evidence that he works full-time from early morning to late afternoon. If the Sponsor’s condition was as serious as the applicant claimed, the applicant’s support would not be limited only to a few hours a day.[28]

    (k)The Tribunal accepted the applicant contributes to the family budget, and the Sponsor’s financial position may be affected if the applicant is not able to remain in Australia. The Tribunal, however, was not satisfied the Sponsor’s financial reliance on the applicant is necessary. The applicant has not satisfied the Tribunal that the Sponsor is unable to work longer than the 20 hours a week she currently works; and the Tribunal was not satisfied that any financial assistance the Sponsor might require would not be available elsewhere.[29]

    [18] CB437, [25]

    [19] CB437, [28]

    [20] CB438, [29]

    [21] CB438, [30]

    [22] CB438, [31]

    [23] CB438, [32]

    [24] CB439, [33]

    [25] CB439, [34]

    [26] CB439, [35]

    [27] CB439, [36]

    [28] CB439, [37]

    [29] CB440-441, [43]

20. The Tribunal summarised its findings as follows:[30]

    The Tribunal has considered the totality of the applicant's circumstances. The Tribunal accepts that the sponsor suffers from a number of conditions and the Tribunal accepts that the sponsor [sic] provides her with some level of support. The Tribunal has formed the view that the applicant's description of the nature and extent of such support has been exaggerated and the Tribunal is not satisfied the applicant provides the sponsor with the type of support he claims. Essentially, while the Tribunal is prepared to accept that some degree of support, including physical, financial and emotional support, is present, the Tribunal is not satisfied that unless the waiver is applied, such support will not be available or that the sponsor will be adversely affected if some type of support (for example, physical support the applicant claims to provide) is no longer available specifically from the applicant. In the circumstances, the Tribunal is not satisfied that the sponsor's condition gives rise to compelling reasons for the waiver. The Tribunal rejects the applicant's claims that he [sic] sponsor could not cope financially without his assistance. The Tribunal also rejects the applicant's claim that he would be incapable of providing emotional support unless he is in Australia. The Tribunal is not satisfied that any adverse effect the applicant's departure from Australia would have on the sponsor would be of such significance as to give rise to compelling reasons for the waiver.

    [30] CB441, [44]

    GROUNDS OF APPLICATION

1. In his application, the applicant, who is not legally represented, relies on the following grounds (errors in original):

   I am national of India, born in October 1983. I entered Australia in December 2007 holding a Student visa, which expired in September 2011. I applied for the Partner visa on 15 August 2014 on the basis of my relationship with Australian resident. The delegate refused to grant the visa on the basis that I did not satisfy cl.820.211 because the delegate was not satisfied the applicant met Item 3001 and that there were compelling reasons to waive that requirement. I sought review of the delegate's decision at AAT but AAT did not gave fresh look to my case, rather affirmed the decision.

   1.Administrative Appeals Tribunal and DIBP made error by not considering my compelling reasons. I provided written statement regarding my compelling reasons.

   2. My Australian wife has well known health issues and she is restricted to work due to her health issues.

   3. She is financially, emotionally dependent on me. If go offshore to lodge my visa application, she will need to struggle alone without required financial support. This situation may throw her in acute financial hardship.

   4. I am helping the government by providing financial assistance to Australian resident; otherwise she will become burden on Centrelink.

   5. She will broke emotionally, if I am compelled to go offshore.

   6. Administrative Appeals Tribunal and DIBP completely ignored the fact that I was not illegal wilfully; rather I was compelled to stay here as required by Australian resident. I stayed here for mental health of my wife.

   7. Administrative Appeals Tribunal and DIBP overlooked sponsor's circumstances, particularly following the death of her baby in 2010. I provided emotional support, which cannot be provided anyone else. My wife gave statement in AAT that she needs me along her for emotional support.

   8. Administrative Appeals Tribunal and DIBP did not gave due respect to the fact that she will have psychological trauma, if I go away from her. Dr. [Y] of . . . General Practice confirmed that sponsor would suffer from anxiety and depression and number of other ailments if visa applicant has to go away.

   9. Administrative Appeals Tribunal and DIBP made error by not accepting specialist report on this matter. Subject matter specialist’s reports must be accepted but Administrative Appeals Tribunal and DIBP just ignored the reports.

   10. Administrative Appeals Tribunal and DIBP ignored [Ms B’s] report. She is Psychologist.

   11. Administrative Appeals Tribunal and DIBP acted with negative thought and did not consider mental health of sponsor, who will suffer unrepairable loss, if I have to go away from sponsor.

   12.Justice is sought in light of above facts.

2. The applicant also relies on an affidavit made on 2 November 2017 to which he annexed a large number of documents. I read the affidavit, subject to relevance.

3. At the hearing before me the applicant, who was assisted by an interpreter, made the following submissions:

   (a)The Tribunal was required to find that the time for which the applicant and the Sponsor had been living together constituted a compelling reason for waiving criterion 3001.

   (b)In paragraph 16 of its reasons the Tribunal incorrectly recorded the applicant and the Sponsor had been together for five years when in fact, by the time the Tribunal made its decision, the applicant and the Sponsor had been together longer.

   (c)The Tribunal did not accept the applicant and the Sponsor were in a genuine spousal relationship.

   (d)During the hearing before the Tribunal, the Tribunal member asked the applicant whether he could guarantee that he and the Sponsor would continue to live together, but the applicant said he could not give any guarantee.

   The grounds stated in application

4. Grounds 2, 3, 4, and 5 are addressed entirely to the merits of the applicant’s case that compelling reasons exist such as to warrant a decision that criterion 3001 should not be applied to the applicant’s application for a Partner visa. For that reason, these grounds do not disclose any jurisdictional error by the Tribunal.

   Ground 1

5. Ground 1 claims the Tribunal did not consider the applicant’s compelling reasons, including those he set out in his written statement. That ground cannot be made out. As my summary of the Tribunal’s reasons shows, the Tribunal considered the matters on which the applicant relied for claiming there were compelling reasons to warrant the Tribunal’s deciding not to apply criterion 3001.

6. The Tribunal accepted the Sponsor suffers from a number of conditions, and that the applicant provides her with some level of support. The Tribunal concluded, however, that the applicant exaggerated the level of support the applicant claimed the Sponsor required. Further, the Tribunal was not satisfied that the level of support the Sponsor required would not be available if criterion 3001 were not waived or, if there were to be any reduction in the support the applicant currently provides, the Sponsor will be adversely affected. Given those findings, the Tribunal was not satisfied there were compelling reasons for not applying criterion 3001.

7. Ground 1, therefore, fails.

   Ground 6

8. Ground 6 claims the Tribunal “ignored the fact that [the applicant] was not illegal wilfully”, but was “compelled” to stay in Australia by the circumstances of the Sponsor. The Tribunal did not consider that the wilfulness or otherwise of the applicant’s having remained in Australia without a visa was relevant to whether there were compelling reasons for not applying criterion 3001; and the Tribunal did not rely on the applicant’s having remained in Australia without a substantive visa in deciding there were no compelling reasons for not applying criterion 3001. The Tribunal, however, did address the claim the applicant made that his not having applied for a substantive visa because he was not in a financial position to do so constituted a compelling reason. Although the Tribunal did not accept the applicant was unable to apply for a substantive visa because he did not have the financial means to do so, the Tribunal found that whether the applicant did or did not have the financial means to apply for a substantive visa was not relevant to whether there were compelling reasons not to apply criterion 3001.

9. Ground 6 fails.

   Ground 7

10. This ground claims the Tribunal overlooked the Sponsor’s circumstances, particularly following the death of the Sponsor’s child, and that the applicant provided support. That claim cannot stand in the face of the Tribunal’s reasons. The Tribunal did consider the Sponsor’s circumstances, and it considered the applicant’s claims that he supported the Sponsor. As I have noted, the Tribunal accepted the Sponsor suffers from a number of conditions, and that the applicant provides her with some level of support; but the Tribunal found that these matters did not constitute compelling reasons not to apply criterion 3001.

11. Ground 7 also fails.

    Ground 8

12. This ground claims the Tribunal did not give “due respect” to the circumstance that the Sponsor “will have psychological trauma” if the applicant is not able to remain in Australia. This ground assumes as a fact a claim the Tribunal did not accept. For that reason alone, ground 8 fails.

13. Perhaps the intention of ground 8 is to claim the Tribunal did not consider the evidence on which the applicant relied for claiming the Sponsor suffered from conditions that required the support the applicant claimed he provided to the Sponsor, including the reports of Dr Y and Ms B. Such a claim, however, would be incorrect. The Tribunal did consider the evidence on which the applicant relied; but, for the reasons it gave, the Tribunal did not accept that the evidence supported the applicant’s claims about the extent of the Sponsor’s difficulties and the level of support the applicant claimed the Sponsor required to be provided and which he did provide.

14. Ground 8 fails.

    Ground 9

15. Ground 9 claims the Tribunal ought to have accepted the “specialist’s [sic] reports” on which the applicant relied. I take “specialist’s [sic] reports” to be a reference to the reports of Dr Y and Ms B. I interpret ground 9 as claiming that no reasonable decision maker in the position of the Tribunal could or would have refused to accept the reports of Dr Y and Ms B. I would not accept that claim. The Tribunal considered each of the reports of Dr Y and Ms B, and gave reasons on which it was reasonably open to it to rely for not giving the reports any weight.

16. The Tribunal relied on two reasons. The first is that the opinions in the reports were wholly based on what the Sponsor had apparently reported to Dr Y and Ms B. The second are the circumstances in which the Sponsor consulted Dr Y and Ms B. The Tribunal found this occurred after the delegate refused to grant the applicant a Partner visa in circumstances where there was no evidence the Sponsor had consulted any medical or mental health practitioner between 2010 and August 2016.

17. Ground 9 also fails.

    Ground 10

18. This ground claims the Tribunal ignored Ms B’s reports. That is incorrect. The Tribunal considered Ms B’s reports but, for the reason it gave, found them inadequate.

19. Ground 10, therefore, fails.

    Ground 11

20. This ground appears to make two claims. One is that the Tribunal did not consider the applicant’s case with an open mind. The second is that the Tribunal did not consider the Sponsor’s mental health. None of these claims can be accepted.

21. There is nothing that could suggest that the manner in which the Tribunal approached its consideration of the applicant’s case could suggest to a reasonable lay person that the Tribunal might not have approached its task with an open mind. And it is clear the Tribunal did consider the applicant’s claims in relation to the Sponsor’s mental health, and the applicant’s claims that the Sponsor would suffer harm if he were to depart Australia.

22. Ground 11 also fails.

    Ground 12

23. This does not articulate any ground, but is a request for relief.

    Grounds advanced at hearing

    Bound to find compelling reasons

24. The only circumstances in which it could be concluded that the Tribunal was bound to find there were compelling reasons for not applying criterion 3001 is if, on the material that was before the Tribunal, no Tribunal acting reasonably could have arrived at a conclusion other than there are compelling reasons for not applying criterion 3001. The material that was before the Tribunal was not of such character. It was reasonably open to the Tribunal not to be satisfied, for the reasons it gave, that there are compelling reasons for not applying criterion 3001.

25. This ground, therefore, fails.

    Incorrect record of period of relationship

26. The applicant submitted that the Tribunal’s statement in paragraph 16 of its reasons that “the existence of a genuine and committed relationship of up to five years’ duration” reflects an incorrect understanding by the Tribunal of the period for which the applicant and the Sponsor have been together. And that is because, by the time the Tribunal made its decision, the applicant and Sponsor had been together for over six years.

27. The Tribunal used the words “the existence of a genuine and committed relationship of up to five years’ duration” after it found the applicant did not have a genuine and committed relationship with the Sponsor from 2011 or 2012, as the applicant claimed. The Tribunal’s reference to “up to five years’ duration” appears to be a reference to the period from and including 2013 to 30 March 2017, being the date the Tribunal made its decision. I am not satisfied, therefore, that the Tribunal made any error in what it found was the period for which the applicant and Sponsor had been in a genuine relationship.

28. Even if the Tribunal made an error in paragraph 16 of its reasons, that by itself does not demonstrate any jurisdictional error. It is clear from the Tribunal’s reasons that it was aware, and it assessed the applicant’s claim on the basis that, the applicant claimed he and the Sponsor had been in a long term relationship since April 2011.[31]

    [31] CB435, [15]

29. This ground, therefore, also fails.

    Tribunal did not accept applicant and Sponsor were in a genuine relationship

30. It is true the Tribunal found the applicant did not have a genuine and committed relationship with the Sponsor from 2011 or 2012, as the applicant claimed. That the Tribunal so found does not by itself demonstrate any jurisdictional error; and the reason on which it relied for so finding was one on which it was reasonably open to it to rely. The Tribunal, however, appeared to accept that the applicant and Sponsor were in a genuine relationship from 2013, and it assessed whether there are compelling reasons not to apply criterion 3001 on the basis that the applicant and Sponsor had been, and continued to be, in a genuine relationship from 2013.

31. This ground fails.

    Tribunal asking for guarantee

32. The difficulty with this ground is there is not in evidence any transcript of the hearing before the Tribunal. For that reason, it is not possible to determine whether, as the applicant submitted, the Tribunal member asked the applicant whether he could guarantee that he and the Sponsor would continue to live together, in response to which the applicant said he could not give any guarantee. For that reason alone this ground fails. Even if, however, an exchange to that effect occurred before the Tribunal, there is nothing in the Tribunal’s reasons to suggest that the Tribunal relied on it. As I have already noted, the Tribunal appeared to accept that the applicant and Sponsor were in a genuine relationship from 2013, and it assessed whether there are compelling reasons not to apply criterion 3001 on the basis that the applicant and Sponsor had been, and continue to be, in a genuine relationship from 2013.

33. This ground, too, fails.

    DISPOSITION AND COSTS

34. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.

35. At the hearing the Minister applied for an order for costs should he succeed, and that his costs should be set in the amount of $5,600. I explained to the applicant that the usual order as to costs is that an unsuccessful party is ordered to pay the costs of the successful party, and I invited the applicant to make submissions about whether the usual order should not apply on the assumption the applicant were not to succeed. The applicant submitted that it would be better to reduce the costs, by which I understand the applicant intended to submit that he would have difficulty paying the costs the Minister seeks, should an order for costs in that amount be made against the applicant.

36. I am satisfied that the usual order as to costs should be made. I am also satisfied that $5,600 represents a fair indemnity of the costs the Minister has incurred in successfully defending the application. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $5,600.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       18 February 2022