Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 1
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 1
File number(s): SYG 3199 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 7 September 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant found not to meet Schedule 3 criteria – no compelling reasons to waive the criteria – whether the Tribunal improperly applied policy guidelines considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 37, 48
Migration Amendment Regulations 2009 (No 10) (Cth)
Migration Regulations (Amendment) 1996 No 75 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Babicci v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 141 FCR 285
Chan v Minister for Immigration & Anor [2017] FCCA 2893
Chan v Minister for Immigration and Border Protection [2018] FCA 1323
Chhetri v Minister for Immigration & Anor [2019] FCCA 298
Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Home Affairs v G [2019] FCAFC 79
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Singh v Minister for Immigration and Border Protection [2018] FCA 1199
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35
SZUDO v Minister for Immigration and Border Protection [2018] FCA 194
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121
Division: Division 2 General Federal Law Registry: New South Wales Number of paragraphs: 97 Date of hearing: 9 August 2021 Place: Sydney Solicitors for the Applicant: Mr C Levingston of Christopher Levingston & Associates Solicitors for the Respondents: Ms K Evans of Sparke Helmore ORDERS
SYG 3199 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 5 December 2019 as augmented in written submissions filed on 12 July 2021 is dismissed.
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
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Singh, a citizen of India, arrived in Australia on 29 April 2014 as the holder of a student (subclass 573) visa which was cancelled on 13 February 2015.[1] On 21 April 2016, Mr Singh lodged an application for a protection visa which was refused on 30 November 2016.[2] It was not until 8 September 2017 that Mr Singh lodged an application for a combined partner (subclass 820/801) visa, which is the subject of these proceedings.[3]
[1] Court Book (CB) 184, 273
[2] CB 771
[3] CB 1-22
On 26 October 2017, the delegate refused to grant Mr Singh the visa on the basis that he did not meet the requirements of clause 820.211(2)(a) and (d) or any of the alternative provisions within clause 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4] The delegate also found that Mr Singh did not meet the Schedule 3 criteria because he did not apply for the visa within 28 days of holding a substantive visa, and there were no compelling reasons to waive the criteria.
[4] CB 273-306
On 16 November 2017, Mr Singh applied to the Tribunal for review of the delegate’s decision.[5] He attended a hearing before the Tribunal and on 11 November 2019, the Tribunal affirmed the decision under review.[6]
[5] CB 317-318
[6] CB 769-778
The Tribunal’s decision
The Tribunal identified that in order to satisfy clause 820.211(2)(d) for the grant of the visa, Mr Singh needed to satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Tribunal was satisfied that there were compelling reasons for not applying those criteria.[7]
[7] CB 772, [15]
Relevantly, the Tribunal found that Mr Singh did not satisfy criterion 3001 because he did not lodge his application for a partner visa within 28 days of his last substantive visa.[8] Accordingly, the Tribunal was required to consider whether there were compelling reasons for not applying the Schedule 3 criteria.[9]
[8] CB 772, [18]-[19]
[9] CB 772, [20]
The Tribunal identified the relevant case law applicable to the expression “compelling reasons” which stood for the proposition that the reasons needed to be sufficiently powerful or convincing to move a decision-maker to exercise the discretion favourably.[10]
[10] CB 772, [21]
The Tribunal set out the parties’ claimed circumstances warranting waiver of the criteria including: that they were in a genuine long term de facto relationship and will suffer emotionally and financially if separated; Mr Singh is the main financial provider for the family; the parties’ son will miss the care and bonding with Mr Singh; and the sponsor would be unable to take their son to India as she feared he would fall ill.[11]
[11] CB 772, [22]
The Tribunal recorded Mr Singh’s evidence that he was unable to provide financially for the sponsor and his son prior to when he obtained work rights in October 2017 and that they have been unable to accumulate any significant assets or liabilities during the duration of their relationship. The Tribunal found that the parties had been in a relationship for two years but did not consider this, in itself, to be a compelling reason to waive the criteria.[12]
[12] CB 773, [25]
The Tribunal acknowledged that Mr Singh had built a cleaning business and worked as an Uber driver, and accepted that the family would suffer financially if he was forced to quit his business or was temporarily absent. The Tribunal noted Mr Singh’s evidence that he could work in his father’s businesses if returned to India and although acknowledging that this change might be awkward, the Tribunal did not consider this, or a temporary loss of Mr Singh’s income, to be compelling.[13]
[13] CB 773, [26]
The Tribunal found that the sponsor was working casually and did not consider her loss of employment, should she accompany Mr Singh overseas, to be compelling.[14] The Tribunal acknowledged the parties would suffer some financial disruption but also did not find this to be compelling. The Tribunal noted the intent of the Schedule 3 waiver was not to spare Mr Singh the consequences of his migration choices and actions.[15]
[14] CB 773, [27]
[15] CB 774, [28]
The Tribunal recorded that DFAT[16] travel advice did not warn against taking young children to India and noted that the family spent several weeks in India in February 2018 and March 2019. The Tribunal did not consider the sponsor’s concerns regarding her son becoming ill and the adequacy of medical and education services in India to be compelling, noting that the son was two years old and not of school age.[17] The Tribunal did not consider the sponsor’s unwillingness to stay with her son in India for longer than three months at a time to be compelling. The Tribunal considered that the parties could communicate through Skype or other applications, visit Mr Singh in India, or spend time together in another country.[18]
[16] Department of Foreign Affairs and Trade
[17] CB 774, [29]
[18] CB 774, [30]
In relation to Mr Singh’s claim that he entered into a relationship because he met the sponsor and had a child because he wanted a family, the Tribunal found that in circumstances where Mr Singh had exhausted every other avenue to remain in the country, his explanations as to why he remained in Australia after his student visa was cancelled were unconvincing. The Tribunal accepted that Mr Singh loved his child but considered that he had manufactured compelling circumstances for the purpose of the visa application.[19]
[19] CB 774, [31]
The Tribunal did not find the fact that the parties had a child to be a compelling reason to waive the Schedule 3 criteria in circumstances where the parties were aware that Mr Singh might need to lodge an application for another visa offshore because he did not hold a substantive visa.[20]
[20] CB 774, [32]
The Tribunal considered the interests of the child but did not consider the child would be significantly harmed by a temporary separation from Mr Singh.[21] The Tribunal acknowledged that the sponsor had family members nearby to assist her with the care of the child during the temporary absence of Mr Singh.[22]
[21] CB 774-775, [33]
[22] CB 775, [34]
The Tribunal considered the submission that Mr Singh’s hometown was in an unsafe area but did not consider this argument to be compelling. The Tribunal found that the parties would benefit from local knowledge and the protection of Mr Singh’s family.[23] The Tribunal considered the statutory declarations provided by the sponsor’s family but found the family could maintain contact via internet applications.[24] Further, the Tribunal considered the evidence provided by the learning centre where the child was enrolled, but did not accept that given his young age, his development would be harmed by spending time in India.[25]
[23] CB 775, [35]
[24] CB 775, [36]
[25] CB 775, [37]
The Tribunal did not accept Mr Singh’s statement that his employees could not find other jobs and would be forced onto Centrelink to be a compelling reason.[26] The Tribunal considered the son’s medical evidence but did not consider this to be a compelling reason in circumstances where the parties did not intend to live permanently in India and considered that the sponsor and son could stay in Australia and visit Mr Singh.[27]
[26] CB 775, [38]
[27] CB 774-775, [40]
Overall, the Tribunal was not satisfied that there were compelling reasons for waiving the Schedule 3 criteria and affirmed the decision on that basis.[28]
[28] CB 776, [41]-[43]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 5 December 2019. There is one particularised ground in that application:
1.In determining as to what might constitute "compelling reasons", the Second Respondent has informed itself by resort to a policy which is wholly ultra vires the statutory scheme and in doing so has fallen into jurisdictional error.
Particulars
(a) At paragraph 31 of the Second Respondents (sic) decision record reference is made, inter alia, to the Applicant having manufactured compelling circumstances. Circumstances are either compelling or not and a reference to a compelling circumstance being "manufactured" is a reference to the impugned policy.
Although Mr Singh continues to rely upon that application, his submissions expand somewhat upon the single particularised ground in it. For that reason, the Minister objected to Mr Singh’s submissions being considered by the Court in the absence of a grant of leave, which the Minister submitted should not be granted.
While it would have been preferable for the application to be amended, at least to add additional particulars consistent with the written submissions filed on Mr Singh’s behalf, the Minister was not inconvenienced by Mr Singh’s submissions and responded to them in writing upon the merits.
At the trial on 9 August 2021, I decided to consider the issues raised by Mr Singh in his application and his written submissions without a formal grant of leave.
The only evidence I have before me is the court book filed on 11 February 2020.
CONSIDERATION
Mr Singh’s contentions
Relevant legislation
Relevantly, at the time of the application for the visa, the delegate’s decision and the Tribunal’s decision, clause 820.211 of Schedule 2 to the Regulations provided as follows:
820.211 Criteria to be satisfied at time of application
(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 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.
…
At the time of the application for the visa, the delegate’s decision and the Tribunal’s decision, criteria 3001, 3002, 3003 and 3004 of Schedule 3 to the Regulations provided as follows:[29]
[29] applicant’s emphasis retained
3001
(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:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(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 or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)the day when that last substantive visa ceased to be in effect; and
(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3002
The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b) on 31 August 1994, the applicant was either:
(i) an illegal entrant; or
(ii)the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii) any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i)in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
After a brief summary of Mr Singh’s immigration history at [8] of the Tribunal’s decision record,[30] the Tribunal proceeded to consider whether Mr Singh met the requirements of clause 820.211(2)(d) of the Regulations.
[30] CB 770-771
As noted above, at [21] of its decision record[31] the Tribunal considered the case law underpinning the expression “compelling reasons” and in doing so relied on two authorities including MZYPZ v Minister for Immigration and Citizenship[32] and Babicci v Minister for Immigration, Multicultural and Indigenous Affairs[33] (Babicci is a case concerning regulation 1.20J which requires consideration of “compelling circumstances”).
[31] CB 772
[32] [2012] FCA 478 at [10]
[33] (2005) 141 FCR 285 at [24]
The Tribunal’s reliance on those cases to inform itself as to what might properly be considered to be “compelling reasons” is a statement to the requirement in Schedule 3 arising under clause 820.211(2)(d)(ii) of the Regulations, which provide and necessarily require consideration of “compelling reasons” (Criterion 3003(d)). Mr Singh contends that the reliance of the Tribunal on the two decisions referred to led it to misdirect itself because in the context of regulation 1.20J the words “compelling circumstances” and “compelling reasons” are said to mean different things having regard to the relevant statutory context.
As correctly stated by the Tribunal at [21][34] of its decision record, the phrase “compelling reasons” is not legislatively defined for the purposes of the waiver provision, however case law offers some guidance as to what circumstances may be considered compelling.
[34] CB 772
In Waensila v Minister for Immigration and Border Protection,[35] when discussing “compelling circumstances” in the context of the Schedule 3 waiver, Griffiths J refers to examples of matters of a “strongly compassionate” nature contained in the Explanatory Statement accompanying the amendment to the Regulations which omitted the previous clause 820.211(2)(d) and substituted the new and current provision. The examples discussed by Griffiths J include matters “where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer”.[36]
[35] (2016) 241 FCR 121
[36] Waensila at [56]
Mr Singh contends that the observations of Griffiths J in Waensila and the Explanatory Statement underpinning the incorporation of the Schedule 3 “compelling reasons” into clause 820.211(d)(ii) are the relevant authorities to have regard to in matters involving the determination as to what facts and circumstances may properly constitute “compelling reasons” in the specific statutory context arising in clause 820.211(d)(ii).
Mr Singh contends further that determination as to what facts and circumstances may properly constitute “compelling reasons” within the contemplation of clause 820.211(d)(ii) should not, as a matter of law, be determined by reference to the decisions in Babicci or MZYPZ, both of which are referred to and relied on by the Tribunal[37] when informing itself as to the meaning of the words “compelling reasons” in the context of clause 820.211(d)(ii).
[37] CB 772, [21]
It is submitted by Mr Singh that the decisions in Babicci and MZYPZ are of limited assistance with respect to determining what matters may inform the Tribunal as to the meaning of the words “compelling reasons” within the context of clause 820.211(d)(ii) and therefore are distinguishable in the context of the present matter.
In the first instance, Babicci involves a statutory bar arising under regulation 1.20J of the Regulations as opposed to the facilitative nature of the waiver provision inherent in the present matter and in that regard, the word “compelling” in Babicci must be read and construed in its statutory context.
The decision in MZYPZ predates the decision in Waensila and it is Mr Singh’s submission that it is incorrectly decided because it adopts the reasoning in Babicci which is informed by the context of regulation 1.20J.
It is submitted by Mr Singh that the best indication as to what the words “compelling reasons” mean within the context of clause 820.211(d)(ii) is by reference to the decision in Waensila and the Explanatory Statement underpinning the incorporation of the Schedule 3 “compelling reasons”.
Indeed, had the Tribunal, in the present matter, had any regard to the decision in Waensila and the Explanatory Statement underpinning the incorporation of the Schedule 3 “compelling reasons” into clause 820.211(d)(ii), it would have found that the circumstances of Mr Singh, including a long-standing relationship of more than two years and the existence of an Australian citizen child from the couple’s relationship mirrored the examples of matters of a “strongly compassionate” nature discussed in the Explanatory Statement. The failure to properly consider the decision in Waensila decided in 2016 (the matter was heard on 8 October 2019), other than to consider it to have limited application with respect to timing issues, is said to have led the Tribunal into jurisdictional error.
Mr Singh contends that the Tribunal fell into jurisdictional error when it applied the current Procedures Advice Manual (PAM3) policy formulated by the Minister. It is conceded that there is no express reference to the relevant policy in the Tribunal’s decision record.
The statutory context argument, “facilitative as opposed to a barring context”
In determining what might properly constitute compelling reasons within the contemplation of clause 820.211(2)(d)(ii), Mr Singh contends that the misapplication occurred because the policy referred to and applied by the delegate in making her decision is wholly ultra vires the Migration Act 1958 (Cth) (Migration Act) and in particular to the facilitative nature of the amendments to s 48, which permitted the making of the visa application within the statutory framework of the Regulations and specifically the facilitative nature of the waiver concession embodied in clause 820.211(2)(d)(ii) of the Regulations.
For present purposes, s 48(1) of the Migration Act provides as follows:
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i)was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii)held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
Regulation 2.12 of the Regulations provides a list of the visas prescribed for the purposes of s 48(1) of the Migration Act. The partner (Temporary) (Class UK) (subclass 820) visa is included on the list of prescribed visas.
Of note, on 7 September 2009, the Regulations were amended to permit applicants prevented by s 48 of the Migration Act from making a further onshore visa application to apply for a partner visa onshore.
In addition, the Migration Regulations (Amendment) 1996 No 75 (Cth) (the 1996 amendments) substituted the previous clause 820.211(2)(d) with the new and current provision which includes the waiver provision regarding the Schedule 3 requirements.
Mr Singh submits that when the 1996 amendments were introduced, it was broadly facilitative in that it permitted applicants who could demonstrate “compelling reasons” but who did not hold a valid substantive visa to make an application for a visa subclass 820. This facilitation (that is the capacity to make an application) was further amplified in September 2009 by the amendment of the Regulations to permit a person who previously applied for a visa which had been refused (other than a spouse 820/801 visa) to lodge an application for a spouse 820/801, subject to the ability to meet the Schedule 3 criteria or demonstrate ‘compelling reasons” for waiver of the Schedule 3 criteria.
Further, the Explanatory Statement accompanying the Migration Amendment Regulations 2009 (No 10) (Cth) is said to support Mr Singh’s assertions as to the facilitative nature of the amendments. The purposes of the amendments to the Regulations is stated in the Explanatory Statement as follows:
The purpose of the Regulations is to amend the Migration Regulations 1994 to allow certain partners of Australian citizens, permanent residents, and eligible New Zealand citizens, who are otherwise not authorised to make a further application under section 48 of the Act because they have had a visa cancelled or visa application refused, to apply for a partner visa, provided they meet specified objective criteria. This will allow these partners of Australian citizens, permanent residents, and eligible New Zealand citizens to remain in Australia while making an application for a partner visa.
Given the facilitative nature of the relevant provisions of the Migration Act, the Regulations and the Explanatory Statement (discussed above), Mr Singh contends that the policy formulated by the Minister by way of PAM3 and relied on by the Tribunal when making its decision is ultra vires in that it attempts to limit in an impermissible way, the facilitative nature of s 48(1) of the Migration Act and clause 820.211(2)(d) of the Regulations.
PAM3 purports to provide detailed guidance on interpreting the Migration Act, Regulations and migration policy.
At the time of the Tribunal’s decision (11 November 2019), the relevant PAM3 policy in place in relation to clause 820.211(2)(d) was as follows:[38]
[38] PAM3 - Schedules – Schedule 2 Visa 820, paragraph 8.7
Other unlawful non-citizens
Clause 820.211(2)(d)(ii), the ‘compelling reasons’ provision, allows certain persons who are unlawful in Australia to regularise their status if compelling reasons exist.
The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. 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 and apply for a Partner visa outside Australia.
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control - such as severe illness or incapacity - the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
•any history of non-compliance by the applicant
•the length of time the applicant has been unlawful
•the reasons why the applicant became unlawful
•the reasons why the applicant did not seek to regularise their status sooner
•what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).
(emphasis in original)
As discussed above, Mr Singh contends that the above policy is ultra vires in that it attempts to limit in an impermissible way the facilitative nature of s 48(1) of the Migration Act and clause 820.211(2) (d) (ii) of the Regulations.
Further, the restrictive nature of the above policy is said to be illustrated further when compared to the previous policy it was substituted for. That previous PAM3 policy provided as follows:[39]
[39] PAM3 - Schedules, paragraph 8.7
Other unlawful non-citizens
Clause 820.211(2)(d)(ii), the 'compelling reasons' provision, allows certain persons unlawfully in Australia, but in relationships with Australian residents, to legalise their status if compelling reasons exist.
In assessing whether or not there are compelling reasons, officers are to take into account the circumstances that the Minister considers to be compelling. These circumstances are that:
•there are Australian citizen children from the relationship or
•the applicant and their sponsor are already in a long-standing partner relationship (taken to be a relationship which has existed for at least two years).
In these circumstances, it is considered the hardship that could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.
This does not mean only those cases with such circumstances should benefit from the waiver. It would be an error of law to apply policy inflexibly. Family Section support a broad approach which takes into account all of the circumstances of the case. Other examples that may be compelling reasons include:
•maternity issues where departure from Australia could complicate matters for the applicant
•age-related maternity issues for the applicant
•issues of separation for an extended period from the sponsor
•the applicant is the sole breadwinner and their departure would significantly impact on the sponsor's welfare
•negative impact on a step-child's formative years if the applicant leaves Australia
•DFAT warnings on community violence in the applicant's home country that make it unsafe for the applicant's circumstances
•hardship caused to the relationship between the sponsor and the applicant's children if the applicant and the children have to leave Australia to make an application offshore
•the sponsor feels compelled to leave Australia with the applicant, leading to loss of employment and income in Australia and resulting in serious financial and other difficulties for the family unit when they eventually are able to return
•reasons concerning safety for the applicant and the sponsor in the applicant's home country if required to submit application offshore
•the applicant's family unit and the sponsor would suffer significant psychological and material hardship if they were forced to depart the country
•the sponsor relies on the applicant for ongoing and continuous care.
Note: This list is not exhaustive and officers are, of course, required under s54 of the Act to have regard to all the information in the application.
The applicant and their Australian partner sponsor should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria.
However, it is the policy intention that an assessment of the relationship between an applicant and their Australian partner sponsor as genuine would not, in the absence of compelling reasons such as those described above, be sufficiently compelling to justify not applying the Schedule 3 criteria.
The evidence in support of the assertion that the Tribunal had regard to the alleged ultra vires policy
Mr Singh contends that in making its decision, the Tribunal referred to and relied on the subsequent policy (see [47] above). The Tribunal’s reliance on the subject policy is said to be illustrated by [24]-[41] of the decision record.[40]
[40] CB 773-776
For example, as reproduced above, the “new” policy provides as follows: [41]
[41] PAM3 - Schedules, Schedule 2 Visa 820 at [8.7]
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 and apply for a Partner visa outside Australia.
…
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
•any history of non-compliance by the applicant
•the length of time the applicant has been unlawful
•the reasons why the applicant became unlawful
•the reasons why the applicant did not seek to regularise their status sooner
•what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).
Evidence in the Tribunal’s decision record of a consideration of the following issues underpinning the ultra vires policy
In relation to any history of non-compliance by Mr Singh:[42]
The Tribunal asked the applicant why he remained in Australia after his Student visa was cancelled and why, when he had no substantive visa providing a right or reason to be in this country, and no work rights to support a family, he chose to remain here, enter into a relationship and have a child.
[42] at [31]
There are said to be factual errors touching upon the failure to hold a substantive visa (Mr Singh held a number of Bridging Visa Es in association with his various applications before the respondents and he was granted permission to work).[43]
[43] CB 771; cf CB 277
The failure to hold a substantive visa cannot constitute “no right or reason to be in this country”. A bridging visa is not a substantive visa but is a temporary visa pursuant to s 37 of the Migration Act.
The Tribunal concludes:[44]
The Tribunal accepts that the applicant loves his child but considers that he has manufactured compelling circumstances for the purposes of the visa application.
[44] CB 774 [31]
That conclusion is said to mirror the statement in the impugned policy “deliberately manipulate their circumstances to give rise to compelling reasons…”.[45]
[45] applicant’s emphasis retained
The ultra vires (new) policy asserts as follows: [46]
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non- compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
(emphasis in original)
[46] PAM 3 - Schedules – Schedule 2 Visa 820 at [8.7]
It is in this context the Tribunal states at [24] and [25][47] of the decision record:
A claimed genuine relationship is the basis for all Partner visa applications. For this reason the Tribunal does not find the parties relationship a compelling reason to waive the criteria.
…
The Tribunal acknowledges that the parties have been in a relationship for two years but does not find this in itself a compelling reason to waive the criteria.
[47] CB 773
These conclusions are said to mirror the new policy (see [47] above):
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
(emphasis in original)
The Tribunal’s findings to that effect are said to mirror those of the relevant policy which as reproduced above, provides that “[a]s a general rule, the existence of a genuine spouse or de facto relationship between Mr Singh and sponsoring partner, and/or the hardship suffered from the separation if Mr Singh were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.”[48]
[48] PAM3 - Schedules – Schedule 2 Visa 820 at [8.7], emphasis in original
Accordingly, it is Mr Singh’s case that the 1996 amendments to the Regulations and the September 2009 amendments are clearly and unambiguously facilitative in that they permitted the making of an application for a spouse visa which was not permissible prior to 1996 if an applicant had previously applied for and been refused a visa and no longer held a substantive visa. The amendments to the Migration Act at s 48 in 2009 removed that impediment.
It is not suggested that the 2009 amendments affecting the operation of s 48 of the Migration Act meant in any way that the terms of the regulation were to be ignored but rather that the context of the combined effect of the 1996 amendments and the 2009 amendments was clearly to facilitate the making of an application for a spouse visa. Further, it was argued that the words “compelling reasons” ought to be construed by the facilitative context and not the Babicci and MZYPZ context which was argued to be a barring provision (see regulation 1.20J).
The position of Mr Singh is that it was not a coincidence but rather an attempt to implement the policy which Mr Singh asserts is ultra vires. This Court is well aware of what the former policy settings were in the context of an application for a spouse (subclasses 820/801) visa where an applicant no longer held a substantive visa.[49]
[49] see Waensila at [56]
In short, Mr Singh asserts that the impugned policy (post 1 July 2014) in effect renders the consideration of what might properly constitute “compelling reasons” so nugatory that it renders the facilitative provisions (that is, those introduced by the 1996 amendments and 2009 amendments) largely incapable of being implemented.
That being the case, the argument is as follows. The word “compelling”, although defined in Babicci, has a contextual basis. The “compelling circumstances” required to be demonstrated to get around the regulation barring what might be broadly described “serial sponsorship” (regulation 1.20J) articulated as follows: [50]
In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion.
[50] Babicci at [21]
Thus, in the context of what is said to be a facilitative provision there is no doubt that the Tribunal being seized of its jurisdiction is necessarily obliged to consider whether, in all of the circumstances of the case, there are compelling reasons which would warrant the exercise of the unfettered discretionary power to permit the grant of a visa to Mr Singh.
Further, Mr Singh submits that, if this Court is satisfied that the Tribunal in fact applied a policy which operated in a way which was impermissible, then there are two approaches to this consideration. First, if the policy is ultra vires the Migration Act and/or the Regulations, it cannot inform the requisite degree of satisfaction as to whether or not there are “compelling reasons”.[51] Secondly, if the policy, in this case the later policy, is in fact ultra vires, then the former policy would apply and the consideration of what might properly constitute “compelling reasons” may be informed by that policy unless it has been impugned.
[51] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mr Singh urges upon this Court to make findings to the effect that the decision of the Tribunal was clearly informed by PAM3 (the policy) and that policy notwithstanding protestations to the contrary constituted an impermissible fetter on the exercise of these discretionary powers.
The decision of the Full Federal Court in Minister for Home Affairs v G[52] usefully summarises the position with respect to the role of policy:
It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.
An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641.
[52] [2019] FCAFC 79 at [58]–[59]
In the current case, the Tribunal does not in fact identify the policy considerations it has had regard to. However, Mr Singh contends that if this Court is satisfied that the Tribunal in fact applied the principal elements of the later policy then it can find that the relevant policy in effect traverses the unfettered exercise of the discretion incorporated into the statutory scheme in an impermissible way.
As identified by the Full Federal Court in G,[53] the primary judge at [208] referred to statements in Drake (No 2) that the limit of policy:
•does not “control” the exercise of discretion (Drake (No 2) at 641);
•does not “determine in advance” the decision to be made (at 641);
•is not one which imposes “broad and binding rules” on the exercise of a discretion (at 640);
•does not accord a determinative effect to any factor (at 642);
•does not deny the ability of countervailing factors to lead the decision-maker in particular cases to decline to exercise the power in favour of the individual (at 642); and
•maintains the discretionary power “intact”, merely specifying weight to be given to a factor or factors (at 642).
[53] at [37]
Mr Singh contends that it is on that basis that he should be entitled to a judgement setting aside the decision of the Tribunal made on 11 November 2019.
Resolution
In my view, the decision of the Tribunal is free from jurisdictional error. There is nothing on the face of the Tribunal’s reasons to indicate that the Tribunal considered itself bound by PAM3. Indeed, there is no reference to PAM3 in the Tribunal’s reasons. It is true that some of the wording in the Tribunal’s reasons is similar to wording in PAM3, which may indicate that the decision of the Tribunal was in general terms informed by those guidelines. That, however, is not an error, provided that the Tribunal did not fetter itself in the exercise of its fact finding and discretion.
In that regard, I agree with and adopt the submissions of the Minister.
Whether PAM3 is ultra vires
Mr Singh has focused on the extracts of PAM3 which he has reproduced in his written submissions. Mr Singh contends that those portions are ultra vires because they “limit in an impermissible way, the facilitative nature of section 48(1) of the [Migration] Act and cl[ause] 820.211(2)(d)(ii) of the Regulations”. There are two answers to that proposition.
First, as I have noted above and as Mr Singh has conceded, the Tribunal makes no reference to PAM3, let alone the specific passages in PAM3 cited by him. Mr Singh bears the onus of establishing that PAM3 was relied upon by the Tribunal.[54] In circumstances where the Tribunal is silent on PAM3, that onus cannot in my view be discharged. In Chhetri v Minister for Immigration and Border Protection,[55] in which similar arguments were made, Griffiths J held at [43] that it is unsurprising that there can be similarities between the contents of PAM3 and an applicant’s submissions, and the Tribunal’s findings, without any reliance being placed on PAM3. That logic is applicable here. Given the Tribunal did not quote or even refer to PAM3, I am not persuaded that Mr Singh has established that the Tribunal relied upon PAM3 in any way. In those circumstances, the sole ground in the application must fail.
[54] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [67] (Gummow J)
[55] [2019] FCA 1026
Secondly, I accept the Minister’s contention that even if the Court were to find that the Tribunal did rely on PAM3, it did not err in doing so because PAM3 is not ultra vires. This is because properly construed, the impugned passages do not constrict the exercise of the discretion to waive compliance with the Schedule 3 criteria. Rather, PAM3 expresses guidance on the kinds of circumstances that might, in a particular case, amount to compelling reasons.
The thrust of Mr Singh’s argument appears to be that the waiver on the basis of compelling reasons is intended to be broad, flexible and should be understood in the context of the facilitative nature of s 48 and the Regulations.
Applying well-settled case law, PAM3 would only be ultra vires if it does not allow a decision-maker to take into account relevant considerations,[56] or, put differently, if it does not leave a decision-maker “free to consider the unique circumstances of each case”[57] such that a decision is determined in advance by PAM3. Contrary to Mr Singh’s submissions, PAM3 does not do any of the above.
[56] Drake (No 2) at 640 (Brennan J); NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] (Gleeson CJ)
[57] Drake (No 2) at 641 (Brennan J)
Nothing in PAM3 creates inflexible rules which dictate the outcome of a particular case. Indeed, it expressly states that “officers should consider circumstances on a case by case basis” in the context of determining whether compelling reasons exist. PAM3 repeatedly uses language that purports to give guidance, as opposed to creating mandatory rules that are to be followed in every case, for instance:
Officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years …
As a general rule, the existence of a genuine spouse or de facto relationship … and/or hardship suffered … are not, in themselves compelling reasons not to apply the Schedule 3 criteria.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to: …
(emphasis added)
In light of the non-mandatory language used in PAM3,[58] it cannot be said that PAM3 impermissibly fetters the discretion to waive the Schedule 3 criteria. PAM3 does no more than provide guidance to the exercise of a broad discretion to promote the values of consistency and rationality. That is precisely the purpose and advantage of having administrative policy for decision-makers.[59] It is well-settled that policy that guides decision-makers on how a discretion will normally be exercised is not ultra vires.[60]
[58] see for instance the commentary in South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 38 where the word “should” is found to not be of mandatory import
[59] Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54]
[60] Elias v Commissioner of Taxation (2002) 123 FCR 499 at [34]
Mr Singh has purported to compare the substance of the more recent versions of PAM3 with its previous iterations to demonstrate that the current version unduly restricts decision-makers. However, that type of analysis is unhelpful. Executive decision-makers are entitled to adopt and promulgate policies as they see fit.[61] This invariably means that policy can change. Merely because one version of PAM3 is less favourable to a particular applicant than another does not have any bearing on the validity of PAM3.
[61] Ibid
Mr Singh has heavily relied on the “facilitative” nature of s 48 which is purportedly inconsistent with the “restrictive” nature of PAM3. However, as was observed by Judge Nicholls at first instance in Chhetri v Minister for Immigration & Anor[62] at [34], s 48 also states that it is “subject to the regulations”, which is where the compelling reasons waiver stems from. In those circumstances, whether s 48 is facilitative or not is of no moment.
[62] [2019] FCCA 298. This judgment was upheld on appeal
The fact that the discretion to waive compliance with the Schedule 3 criteria on the basis of compelling reasons is broad is also of no assistance to Mr Singh. As was stated in G at [65], the breadth of a discretion:
is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between [the law and the policy].
As such, properly construed, PAM3 is not ultra vires.
Whether the Tribunal was correct to rely on MZYPZ and Babicci
In his written submissions, Mr Singh asserts that the Tribunal erred by relying on the cases of MZYPZ and Babicci.
I also agree with and adopt the Minister’s submissions on this issue.
Mr Singh’s argument is that those cases were decided in different contexts, such as Babicci being decided in the context of regulation 1.20J and the meaning of “compelling circumstances”, which is different to “compelling reasons”. This identical argument was considered, and dismissed by the Federal Court, in Chhetri at [45]. The Federal Court has frequently cited MZYPZ and Babicci with approval even in the context of cases like the present matter.[63]
[63] Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [7] and [16]; Singh v Minister for Immigration and Border Protection [2018] FCA 1199 at [13] and [18]; SZUDO v Minister for Immigration and Border Protection [2018] FCA 194 at [8]
The Federal Court’s endorsement of MZYPZ and Babicci is hardly surprising. Babicci may have concerned a different provision of the Regulations and the concept of “compelling circumstances” but [24], which was adopted by the Tribunal and cited in MZYPZ, dealt with the meaning of the word “compelling”, which was informed by the various dictionary definitions of the word. Given the definition of “compelling” propounded was based on first principles, there should be no surprise that it was thereafter adopted in MZYPZ, which was a case that directly grappled with the meaning of compelling reasons in the context of waiver of the Schedule 3 criteria. Given there is binding Federal Court authority applying MZYPZ and Babicci in matters of this kind, it was clearly open to the Tribunal to rely on those cases.
Whether the Tribunal failed to consider the length of the parties’ relationship and their child
Mr Singh contends that the Tribunal failed to consider the decision in Waensila and the Explanatory Statement to the Amending Regulations which introduced the concept of compelling reasons to Schedule 3. In particular, Mr Singh claims that because the Explanatory Statement gives the examples of a longstanding relationship of over two years and the existence of an Australian citizen child as examples of compelling reasons, the Tribunal is said to have erred when it found that, notwithstanding the parties’ relationship was over two years and they had an Australian citizen child, there were nonetheless no compelling reasons in this case.
Again, I prefer and adopt the Minister’s submissions on this additional issue.
The length of the parties’ relationship and their Australian citizen child were expressly considered at [21]-[22], [25] and [32].[64] The Explanatory Statement referred to by Mr Singh does not go so far as to say that in all circumstances where a relationship exceeds two years or there is an Australian citizen child, a decision-maker must find that there are compelling reasons to waive the Schedule 3 criteria. The relevant passages of the Explanatory Statement state as follows:
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.
(emphasis added)
[64] CB 772-774
As should be apparent from the wording of the Explanatory Statement, it goes no further than to say that a relationship of two years or greater or the parties having an Australian citizen child may constitute compelling reasons. It does not say that there will be compelling reasons to waive the Schedule 3 criteria in every case that is akin to the two examples given in the Explanatory Statement. The Regulations themselves do not reproduce this example of what constitutes compelling reasons, neither do they state that the existence of an Australian citizen child will always constitute compelling reasons. In circumstances where no mandatory language is used in the Regulations that dictates what can or cannot constitute compelling reasons, and as evident above, the waiver provisions are designed to provide “greater flexibility” to decision-makers, it was open to the Tribunal to find that neither the length of the parties’ relationship nor the fact that they have an Australian citizen child constituted compelling reasons in this matter, when their circumstances are considered in their entirety. Other decisions of this Court and the Federal Court have reached that exact conclusion.[65] Accordingly, no error is revealed.
[65] Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 at [37]-[38]; Chan v Minister for Immigration & Anor [2017] FCCA 2893 at [12]-[14]. Although the appeal was allowed in part, this aspect of the Federal Circuit Court judgment was undisturbed: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [50].
CONCLUSION
Mr Singh has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 7 September 2021
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