Subedi v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 338

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Subedi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 338

File number(s):

MLG 809 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

11 May 2023

Catchwords:

MIGRATION – whether Tribunal decision legally unreasonable – whether Tribunal applied wrong test, acted unfairly or ignored relevant material

Legislation:

Migration Act 1958 (Cth) ss 359A, 476

Migration Regulations 1994 (Cth) cl 810.211

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164

SZBYR v Minister and Minister for Immigration and Citizenship (2007) 96 ALD 1

SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90

Division:

Division 2 General Federal Law

Number of paragraphs:

59

Date of hearing:

9 February 2023

Place:

Sydney

The Applicant:

In person via Microsoft Teams

Solicitor for the Respondents:

Ms A Meaney of Mills Oakley

ORDERS

MLG 809 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUMAN SUBEDI
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	11 May 2023

THE COURT ORDERS THAT:

1.The application filed on 28 March 2018, as amended, is dismissed.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

1. On 28 March 2018, the applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2018.  The Tribunal affirmed a decision of a delegate of the first respondent (delegate) dated 23 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (visa) on the basis that there were no compelling reasons to waive the requirements of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations).

   Background

2. The applicant is a male citizen of Nepal, who arrived in Australia on 1 October 2008 as the holder of a Student (Subclass 572) visa, which ceased on 15 December 2010 (CB 94).  

3. On 5 October 2016, the applicant lodged an application for the visa on the basis of his relationship with his wife (sponsor), who is also a citizen of Nepal (CB 1 to 24 and 94) but has Australian permanent residence.  By the visa application form, the applicant confirmed he did not hold a substantive visa (CB 1) and that he “overstayed in Australia since December 25 2010 (CB 22).  The applicant appointed his registered migration agent as his authorised recipient (CB 25) and submitted evidence about his relationship with the sponsor, including:

   (a)photographs (CB 29 to 36);

   (b)utilities bills (CB 52 to 53);

   (c)bank statements (CB 54 to 55);

   (d)flight itineraries (CB 56 to 59); and

   (e)statements from friends and family members (CB 60 to 75).

4. It was a requirement for the grant of the visa that the applicant meet cl 820.211 of Schedule 2 to the Regulations, which provides:

   Criteria to be satisfied at time of application

   820.211

   (1)         The applicant:

   (a) is not the holder of a Subclass 771 (Transit) visa; and

   (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2)         An applicant meets the requirements of this subclause if:

   …

   (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.

5. Criterion 3001 of Schedule 3 to the Regulations provided: “The application is validly made within 28 days after the relevant day”, with the “relevant day” being the last day on which the applicant held a substantive visa: see cl 3001(2)(c).

6. On 7 October 2016, the applicant was invited (via his authorised recipient) to comment on information being that when he lodged the visa application, he was not the holder of a substantive visa. The letter also requested that he put forward any claims in relation to a waiver of the Schedule 3 criteria, and provide any further evidence of his relationship with the sponsor (CB 78 to 83).

7. On 3 November 2016, the applicant’s representative provided a submission to the Department which advanced circumstances which the applicant claimed were compelling as to warrant waiver of the Schedule 3 criteria. These were said to be that:

   (a)if the applicant returned to Nepal, the sponsor would suffer from “great emotional stress”;

   (b)the applicant and sponsor would have to delay their plans to start a family;

   (c)the sponsor would have to leave her job and travel with the applicant to Nepal, which would add to their “financial burden and mental stress”; and

   (d)the impact of a 2015 earthquake meant it would be difficult for them to live in the sponsor’s house and to find employment (CB 84 to 87).

8. On 23 November 2016, the delegate refused to grant the applicant the visa on the basis that he did not satisfy the criteria, and that there were no compelling reasons to waive the Schedule 3 requirements (CB 94 to 121).

9. The delegate expressed concerns about the veracity of the applicant’s claims about his relationship with the sponsor but was not, in any event, satisfied the applicant’s claims about emotional and financial hardship or the impact of the earthquake in Nepal amounted to compelling circumstances. Accordingly, the delegate found cl 820.211(2)(d)(ii) of the Regulations was not met (CB 96 to 98).

   The Tribunal’s decision

10. On 2 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision, appointed his registered migration agent as his authorised recipient, and gave a copy of the delegate’s notification letter and decision record to the Tribunal (CB 122 to 154).  

11. On 16 February 2018, the applicant’s representative provided a submission to the Tribunal which did not dispute that the applicant did not meet the Schedule 3 criteria, but addressed the issue of compelling reasons (CB 192 to 194). It was submitted that the sponsor had a medical condition which restricted her ability to work on a full-time basis and therefore, that it would be necessary for the applicant to remain in Australia to contribute to their mortgage repayments. The submission said that the applicant was a “highly skilled worker” and his employer would suffer hardship if a waiver was not granted.  The applicant also claimed that there had been significant changes in Nepal during the ten years the applicant had resided in Australia, the applicant could attract the “wrong crowd” in Nepal because people would think we was “loaded with cash”, and he may not be able to find employment, which would be “frustrating and depressing” (CB 192 to 194). 

12. The submission also attached a home loan account statement (CB 195 to 196), a letter from the applicant’s employer (CB 197 to 198), medical evidence relating to the sponsor (CB 199 to 201) and payslips for the applicant (CB 202 to 204).

13. On 21 February 2018, the applicant appeared before the Tribunal at an in-person hearing at which he gave evidence and presented arguments with the assistance of an interpreter in the Nepali language. The sponsor and the applicant’s employer also gave evidence (CB 207 to 210). 

    Tribunal decision

14. On 1 March 2018, the Tribunal affirmed the delegate’s decision (CB 214 to 222).

15. The Tribunal found the applicant did not satisfy criterion 3001 (CB 216 at [13]) and proceeded to consider whether there were compelling reasons for not applying the Schedule 3 criteria.

16. The Tribunal accepted that the applicant and sponsor were in a genuine and continuing relationship, but was not satisfied the hardship created by a temporary separation would be a “sufficiently forceful reason” to not apply the Schedule 3 criteria (CB 217 at [20]). The Tribunal acknowledged that their plans to start a family may be postponed, but found there was nothing to indicate a temporary separation would preclude the parties from starting a family in the future. Accordingly, the Tribunal was not satisfied that any adverse emotional impact on the applicant and sponsor was a compelling reason to not apply the Schedule 3 criteria (CB 217 at [18] to [20]).

17. The Tribunal considered the evidence of each of the applicant and sponsor about the potential financial impact to them of a refusal to waive the Schedule 3 criteria, including the sponsor’s medical evidence which indicated she was unable to work full-time, and accepted that the applicant and sponsor may face financial difficulties. The Tribunal found the sponsor may have to consider other options to ensure her mortgage repayments could be met (CB 218 at [25]), including by seeking mortgage relief or having the applicant seek employment in Nepal and continue to make financial contributions. The Tribunal was not satisfied that the potential financial impact on the applicant and sponsor constituted a compelling reason not to apply the Schedule 3 criteria (CB 217 to 218 at [21] to [23]).

18. Based on the evidence from the applicant and his employer, the Tribunal accepted the applicant was a “highly competent and efficient chef” and had contributed to his employer’s business. Despite this, the Tribunal found the applicant’s employer did not claim that the applicant’s skills could not be found elsewhere in the Australian workforce and that the potential impact on the employer’s business had not been quantified. The Tribunal was not satisfied the potential financial impact on the applicant’s employer amounted to a compelling reason to waive the Schedule 3 criteria (CB 218 at [24] to [25]).

19. The Tribunal accepted that if the applicant returned to Nepal there would be a “period of readjustment” (CB 219 at [28]).  It also acknowledged that Nepal’s social and economic recovery from the 2015 earthquakes had been slow and that the applicant might experience some financial hardship.  However, it found there was nothing to indicate the applicant would be unable to readjust to customs and conditions in Nepal and, notably, the applicant had familial support in Nepal, was skilled, and would be able to communicate within the local community (CB 219 at [28]).

20. The Tribunal accepted that the applicant may find temporary life changes challenging and that the sponsor may be saddened by a temporary period of separation, but also noted it was open to the sponsor to spend time in Nepal, where her family resided (CB 219 at [29]). The Tribunal found there to be no evidence to substantiate the applicant’s claim that the difficulties he would face in returning to Nepal could lead to depression in a clinical sense (CB 219 at [29]), nor was there any basis in the evidence for the applicant’s claim that persons returning to Nepal from overseas would be perceived as wealthy and targeted as a result (CB 219 at [30]). The Tribunal was not satisfied that the duration of the applicant’s time in Australia, and any potential challenges in Nepal, were sufficiently forceful reasons to not apply the Schedule 3 criteria (CB 219 at [31]).

21. As the Tribunal found there to be no compelling reasons for not applying the Schedule 3 criteria, it found cl 820.211(2)(d)(ii) was not met and the Tribunal affirmed the decision under review (CB 219 at [32] to [34]).

    Application to this Court

22. On 28 March 2018 the applicant commenced these proceedings.  The matter was initially docketed to a different Judge of this Court and, on 20 March 2019, a Registrar of the Court made orders which provided (inter alia) for the applicant to file and serve any amended application and evidence 28 days before the hearing date.  On 17 August 2022, the applicant appeared before a Registrar at a telephone callover on which occasion the proceedings were listed before another Judge of this Court (other than the Judge to whom it was initially docketed) and listed for hearing on 22 November 2022.  Due to judicial unavailability, the matter was again re-docketed, this time to me, and on 28 October 2022 I listed it for hearing on 9 February 2023.

23. By the time of hearing, the applicant was located in Victoria and the Court presided from Sydney.  Accordingly, the matter was heard using the Microsoft Teams platform.  The applicant participated in the hearing by telephone, and was assisted by an interpreter in the Nepali language who was present in the Court in Sydney.  The connection seemed clear throughout and the parties, the interpreter and the Court did not have difficulty understanding one another (either by reason of the connection or any language barriers).

24. The applicant relies on an Amended Application filed on 19 September 2022 which raises three particularised grounds.  The Amended Application is not supported by any submissions, despite orders made by this Court on 28 October 2022 requiring that the applicant file and serve written submissions 14 days before the hearing (namely on or by 27 January 2023). 

25. The applicant’s Affidavit filed on 19 September 2022 contains statements akin to submissions asserting that the applicant met the Schedule 3 criteria. The first respondent correctly contends that this allegation has no proper basis in circumstances where the applicant conceded that he did not satisfy the Schedule 3 criteria (CB 192).

26. There is nothing in the materials before the Court to indicate that the applicant held a substantive visa from 15 December 2010, when his Student (Subclass 572) visa ceased (CB 94).  Further, he did not lodge his Partner visa application until 5 October 2016, which was plainly not “within 28 days after the relevant day” for the purposes of satisfying criterion 3001.  A copy of the birth certificate pertaining to the applicant’s son, which is dated 30 May 2019 (and annexed to the Affidavit) was not before the Tribunal at the time it made its decision, and is therefore irrelevant to the Court’s judicial review task.  

27. By reference to the Amended Application, the grounds which arise for consideration are as follows (particulars omitted, errors in original):

    1. The decision of the Tribunal is affected by an error of the kind identified in Li [2013] HCA and Wednesbury unreasonableness.

    2. The decision of the Tribunal is affected by an error of the kind identified in Kioa v West (1985).

    3. The member either asked the wrong question, identified wrong issue or ignored irrelevant material.

28. At the hearing each of the grounds were interpreted to the applicant and he was given a chance to address them in turn. 

    Ground 1

29. The first ground contends that the decision of the Tribunal was legally unreasonable and cites Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. The (somewhat lengthy) particulars which accompany the first ground (being (a) to (e)) are addressed below.

30. By particular (a) of the ground the applicant takes issues with the Tribunal’s finding at [20] (CB 217), namely that there was no evidence that a temporary separation would preclude the applicant and the sponsor from starting a family. 

31. The applicant asserted that the Tribunal’s decision “means that family will hang in uncertain future” and made reference to the birth of his son, which relevantly post-dates the Tribunal’s decision by 10 months. 

32. In respect of this submission, the first respondent observed that events which occurred after the date of the Tribunal’s decision are irrelevant to the question of whether it made a legal error in deciding the application: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at [29].

33. Particular (b) to ground 1 asserts that the Tribunal “did not understand the gravity of the issue of home ownership” or the sponsor’s medical condition and states there is “no way the income from Nepal will be enough to pay mortgage”.  The first respondent contended that, by this, the applicant was simply expressing disagreement with the Tribunal’s findings. 

34. There is nothing in the material before the Court to suggest, let alone demonstrate, that the applicant raised any concerns with the Tribunal about his ability to contribute to mortgage repayments from Nepal, nor the sponsor’s likelihood of obtaining mortgage relief.  Further, I am not satisfied that there is anything unreasonable about the Tribunal’s statement (CB 218 at [23]) that “the sponsor may have to consider other options to ensure her mortgage payments can be met”. 

35. The Tribunal’s conclusion about the potential financial impact on the parties was not, in my view, lacking an “evident and intelligible justification (see Li (supra)) and I find that a reasonable and rational decision-maker could have reached the same conclusion based on that material: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] to [132] and [135] per Crennan and Bell JJ and at [78] per Heydon J.

36. The first respondent noted that no attempt has been made by the applicant to explain how the Tribunal did not “understand the gravity” of the sponsor’s medical condition.  The Tribunal clearly considered, and in fact quoted from, the medical evidence in question (CB 217 at [21]).  That material was taken into account when undertaking its assessment of whether the financial impact on the applicant amounted to compelling reasons (CB 218 at [23]). 

37. Particular (c) of ground 1 of the application seeks to challenge the Tribunal’s conclusion that the applicant’s skills could be found elsewhere in Australia.  The first respondent says that this allegation is founded upon a mischaracterisation of the Tribunal’s reasons for decision.  The first respondent says that the Tribunal’s statement that is sought to be impugned was not a conclusion or a finding.  Rather, the first respondent submits that the Tribunal was making an observation about the evidence when it noted that the applicant’s employer had failed to assert “that the applicant’s skills cannot be found elsewhere in the Australian workforce” (CB 218 at [25]). 

38. On the material before the Court, there is nothing to undermine that observation such that it could be established to have been unavailable to the Tribunal to make.  In essence, this particular has its foundation in the applicant’s disagreement with the Tribunal’s findings, and invites the Court to engage in impermissible merits review.  

39. To the extent that the applicant also says he was denied procedural fairness by the Tribunal, this cannot be sustained.  In particular the applicant says that the Tribunal ought to have put to him its concerns about his pursuit of migration offshore.  The Tribunal was not satisfied that the potential impact upon the applicant’s employer of the applicant having to go offshore to regularise his migration status constituted a compelling reason.  That was in circumstances where the alleged impact on the business had not been quantified. 

1. The first respondent submits, and I accept that, this involved the Tribunal relying upon an absence of information.  That absence of information does not constitute “information” for the purposes of s 359A: see SZBYR v Minister and Minister for Immigration and Citizenship (2007) 96 ALD 1 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18] and SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 Perram, Jagot and Griffiths JJ at [11], [103], [134].

2. Particulars (d) and (e) to the first ground take issue with the Tribunal’s consideration of the applicant’s claim that the duration of his time in Australia would make it difficult for him to readjust to life in Nepal and could lead to him and the sponsor being depressed (CB 218 at [27] to [29]).  

3. The applicant asserts that the Tribunal’s statement that “no persuasive or medical evidence suggesting these temporary difficulties could lead to depression” (CB 218 at [29]) indicates it could not make a medical conclusion in absence of having medical evidence in the form of a report.  The applicant says that the Tribunal was required to invite him to comment on this and that it was “absurd and unreasonable” for the Tribunal to find the applicant would not suffer from mental health issues because he could speak Nepali.  These complaints are said by the first respondent to also mischaracterise the Tribunal’s reasons.

4. Contrary to what appears to be asserted, this is not a case where the Tribunal erroneously required the applicant to corroborate his claims before they could be accepted: CfMachmud v Minister for Immigration & Multicultural Affairs (2001) 66 ALD 98 at [16] per Hill J). Rather, the Tribunal considered that any difficulties the applicant would face in readjusting to life in Nepal would be mitigated by (CB 219 at [28]):

   (a)the presence of his family in Nepal;

   (b)his skills as a chef; and

   (c)his ability to communicate within his local community.

5. In light of these matters, and the absence of any medical evidence to suggest the applicant would experience any mental health issues as a result of any “temporary life changes”, the Tribunal was not satisfied the applicant’s prospects in his home country were “sufficiently forceful” reasons to not apply the Schedule 3 criteria. I accept the submission that these findings were plainly open to the Tribunal on the materials before it and that the reasoning of the Tribunal about the absence of medical evidence was, again, not “information” for the purposes of s 359A: see SZBYR (supra) and SZTGV (supra) (see [40] above). 

6. At hearing, when asked to speak to ground one of his Amended Application, and in particular whether there was anything specific he wanted to say about his claim that the Tribunal was not fair, the applicant stated that he and his wife were trying to buy a house and start a family in Australia and that he did not understand why the Tribunal did not “see that as a reason to give visa”.

7. However, the Tribunal did consider the applicant’s circumstances, was aware that he owned a home and was making mortgage repayments, and that there was a potential for him to start a family with the sponsor in the future. The Tribunal also found that the relationship was genuine and continuing, but notwithstanding those matters, it wasn’t satisfied that the applicant’s circumstances were compelling to justify a waiver of the Schedule 3 criterion. Further, where the Tribunal plainly had regard to all of the applicant’s evidence, the applicant’s oral submissions at hearing did not take his case any further, but simply expressed disagreement with the Tribunal’s conclusions.

8. I am not satisfied that any of the matters raised by ground 1, nor the submissions made by the applicant at the hearing establish a jurisdictional error, based on legal unreasonableness as alleged, or at all.  Accordingly, ground 1 must fail. 

   Ground 2

9. By the second ground, the applicant asserts that the Tribunal’s decision is affected by error of the kind identified in Kioa v West (1985) 159 CLR 550.

10. In support of this ground, the applicant relies on particulars (c) and (d) to ground 1.  The applicant also states that the Tribunal did not act fairly and asked the wrong questions.  

11. When asked about this ground at hearing, the applicant said that he had “nothing to say about it”.  Noting the reference in each of the applicant’s three grounds to Australian case law, and the fact that the applicant was not represented, I queried whether the applicant had, himself, drafted the grounds.  In response, the applicant said that his lawyer had asked him to include the case law, and had guided the applicant in the preparation of his application, but that said lawyer did not “do it” for him.

12. To the extent that this ground relies on the anterior particulars to ground 1, then for the reasons set out at [37] to [44] above, it cannot succeed.  There is no aspect of the particulars which, when otherwise read in conjunction with ground 2 gives rise to a jurisdictional error. 

    Ground 3

13. The final ground of the Amended Application asserts the Tribunal asked itself the wrong question, identified the wrong issue or ignored relevant material.

14. In response to being asked whether there was anything he wished to say about ground three, the applicant simply asked the Court to make a decision relying on the papers, by which he refers to the Amended Application filed on 19 September 2022.  

15. Turning then, to the applicant’s originating application, the applicant repeats particular (e) to ground one.  The applicant said that “home ownership is a big aspect of any individual’s life” and that the Tribunal ought to have given that factor “significant weight”.  The applicant contends that, instead, the Tribunal asked itself the wrong question and concluded the applicant could seek mortgage relief and find work in Nepal. 

16. Again, to the extent this ground relies on the particulars to ground 1, then for the reasons already given at [41] to [44] above, it cannot succeed.  There is no aspect of particular (e) of ground 1, which when applied to ground 3, gives rise to a jurisdictional error. 

17. To the extent that, by ground 3, the applicant seeks to challenge the weight given by the Tribunal to the evidence before it, I accept the first respondent’s submission that the weight to be given to evidence is a matter uniquely for the Tribunal.  The Tribunal’s decision shows that it was aware that the applicant and sponsor made mortgage payments and that it also took into account that they may face difficulties if the applicant were required to go offshore to pursue migration options (CB 217 to 218 at [22] to [23]). 

18. However, I accept that it was open to the Tribunal to still find that this did not constitute a compelling reason for not applying the Schedule 3 criteria, and that there is no jurisdictional error established by ground 3, or in fact at all.

    Conclusion

19. For the foregoing reasons, there is no jurisdictional error established by the Amended Application.  That being so, the decision is a privative clause decision and must be dismissed.  I will so order. 

20. I will hear the parties as to costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       11 May 2023