Toppo v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 174
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toppo v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 174
File number(s): SYG 3021 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 14 February 2025 Catchwords: MIGRATION – Partner Visa – Where Tribunal found there were no compelling reasons to not apply the Schedule 3 criteria – Incorrect definition of ‘compelling reasons’ – Failure to give proper and genuine consideration – no error established – application dismissed Legislation: Migration Act 1958 5F, 65
Migration Regulations cl 820.211(2)(d), sch 3
Cases cited: Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77
Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026
Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014
Minister forImmigration and Citizenship v SZMDS [2010] HCA 16
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 30 January 2025 Place: Parramatta Solicitor for the Applicant: Christopher Levingston & Associates Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs. ORDERS
SYG 3021 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OSCAR TOPPO
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to the Minister for Immigration and Multicultural Affairs.
2.The application filed on 24 December 2020, 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 SKAROS:
By application filed on 24 December 2020 and amended on 14 April 2021, the applicant seeks judicial review of a decision made on 27 November 2020 by the Administrative Appeals Tribunal[1] (the Tribunal). The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) dated 14 March 2019 refusing to grant the applicant a Partner (Temporary) (Class UK) visa (the visa) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The applicant is a male citizen of Italy of Eritrean ancestry. He first arrived in Australia in February 2017 as the holder of a visitor visa.
In May 2017 the applicant lodged an application for a Temporary skilled (Subclass 457) visa. On 27 November 2017 the applicant lodged the visa application, being a combined application for a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa. The applicant was granted a bridging visa to remain lawful in Australia in connection with that visa application and the following day he withdrew his application for the Subclass 457 visa.
On 14 March 2019 the delegate refused to grant the Partner (Temporary) (Class UK) visa on the basis that the applicant did not satisfy cl.820.211(2)(d) of the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy criterion 3001, being that the applicant lodged the application for the visa more than 28 days after he last held a substantive visa, and there were no compelling reasons for not applying that criteria.
On 26 March 2019 the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 16 September 2020 the applicant was invited to attend a hearing before the Tribunal on 13 October 2020.
On 8 October 2020 the applicant, by his representative, provided the Tribunal with supporting documents and information regarding his application.
On 13 October 2020, the applicant and his representative, along with the applicant’s sponsoring spouse, Ms Isaak, appeared before the Tribunal at the hearing.
On 26 October 2020 the applicant, by his representative, provided the Tribunal a statutory declaration of the applicant’s mother-in-law in support of his application.
On 27 November 2020 the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
THE TRIBUNAL’S DECISION
The Tribunal identified that it was not in dispute that the applicant was not the holder of a substantive visa at the time he made the visa application. The result of this is that the applicant must satisfy criteria 3001, 3003 and 3004 in sch 3 of the Regulations unless there are compelling reasons for not applying the criteria.
It was also not in dispute that the applicant did not satisfy the Criterion 3001 because the visa application was not made within 28 days of him last holding a substantive visa; the applicant’s last substantive visa ceased on 9 May 2017 and the visa application was lodged on 27 November 2017. Therefore, the Tribunal identified that the dispositive issue on review was whether there were compelling reasons not to apply the schedule 3 criteria.
The Tribunal noted that whilst “compelling reasons” was not defined for this purpose, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to not apply the criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of not applying the criteria citing MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [10] (MZYPZ); and Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 at [24] (Babicci).
The Tribunal then went on to consider whether there were compelling reasons for not applying the criteria. The Tribunal considered the genuineness of the relationship, whether the relationship was long-standing, the financial effect of the applicant’s absence, the effect of the absence on the sponsor’s family and her cousin, the applicant’s employment and business ownership, the applicant’s ties to Australia, whether there were circumstances beyond the applicant’s control and the COVID-19 pandemic.
As to the genuineness of the relationship, the Tribunal noted the substantial evidence in support of the genuineness of the relationship but declined to make a finding as to whether the relationship was genuine and continuing. The Tribunal noted that a genuine relationship would not, of itself, satisfy it that there were compelling reasons and that hardship caused by separation (if the applicant had to leave Australia) was common to most, if not all, parties in this situation and the fact of the separation and presence of associated hardship would also not, of itself, satisfy the Tribunal that compelling reasons existed to not apply the criteria.
As to whether the relationship was long-standing, the Tribunal noted that a relationship of more than two years may justify not applying the criteria. The Tribunal found that at the time of the application, the parties’ relationship had most likely been on-foot for under one year, the Tribunal nevertheless acknowledged that they had known each other as children and had remained in contact. The Tribunal found that at the time of its decision, the relationship had been ongoing for more than three years. It accepted that the relationship was long-standing but was not satisfied that this alone amounted to compelling reasons for not applying the Schedule 3 criteria.
As to the financial effect of the applicant’s absence, the Tribunal noted the applicant’s claim that he was the main, if not the sole, breadwinner in the relationship and his travelling offshore to apply for a partner visa would amount to a compelling reason because the sponsor, Ms Isaak, would be deprived of financial support.
The Tribunal accepted that the applicant provides financial support to the sponsor but was not satisfied that this was a compelling reason by itself. The Tribunal noted that the sponsor was to shortly graduate from a bachelor's degree in nursing and would soon be able to earn $60,000 per annum. The Tribunal was satisfied that this amount would enable the sponsor to be able to live and function normally. The Tribunal also noted that the sponsor was receiving and would continue to receive Centrelink payments.
As to the effect of the absence on the sponsor’s family and her cousin, the Tribunal noted the applicant’s submissions that he assisted with the caring arrangements for the sponsor’s cousin who had multiple sclerosis. The Tribunal recounted the applicant’s evidence that he assisted the sponsor’s cousin “all the time” which had increased from his submission in 2018 that he merely provided financial support that allowed the sponsor to care for her cousin. The applicant gave evidence that he cared for the sponsor’s cousin practically and emotionally before and after work and that he also takes a day off on Monday or Tuesday to care for him. The Tribunal also recounted the sponsor’s evidence that she cares for her mother and was studying, as well as the statutory declaration of the applicant’s mother-in-law, submitted after the hearing, which provided that the applicant cared for her “nephew” (the sponsor’s cousin with multiple sclerosis).
The Tribunal accepted that the applicant and the sponsor provided assistance to the sponsor’s cousin and that the sponsor most likely provided assistance to her mother which helped her mother to care for the sponsor’s cousin. The Tribunal found that this combination of help, along with the four to six hours of care provided by the NDIS allowed the family to care for the sponsor’s cousin who, it accepted, had high needs. Notwithstanding, the Tribunal found that the sponsor was likely to enter into a reasonably well-paid graduate position after finishing her studies and that although she may have to move house, there was no evidence to suggest she would need to move far away from her mother or cousin. The Tribunal did not accept that the sponsor’s cousin would not receive sufficient care if the applicant departed Australia and it was not satisfied that the claims as to the care of the sponsor’s mother and cousin, including the impact of a reduction in financial assistance, amounted to compelling reasons for not applying the Schedule 3 criteria.
As to the applicant’s employment and business ownership, the Tribunal noted the applicant’s submission that he was the co-owner and manager of a restaurant in Casula NSW and that if he departed Australia, the restaurant would close and 16 employees would lose their jobs. The Tribunal accepted that the applicant’s departure from Australia may cause difficulties for the co-owner of the restaurant and for the employees at least in the short term. However, the Tribunal did not accept that this amounted to compelling reasons not to apply the criteria. The Tribunal noted that the applicant conceded that there was little, if any, evidence to demonstrate the restaurant would close if he departed and the Tribunal considered that the co-owner would be able to carry on the business. Further, the Tribunal was not satisfied the applicant’s absence would cause detriment to the industry as a whole or to Australia’s interests.
As to the applicant’s ties to Australia, the Tribunal noted that the applicant assisted in caring for the sponsor’s cousin, that he co-owned and managed a restaurant which was an employer of 16 claimed employees and that he was a member of and contributor to the Eritrean community. The Tribunal accepted that the applicant had some family, community and business ties to Australia. As to the family ties, the Tribunal considered the applicant could continue these from overseas by way of communication. In relation to the business ties, the Tribunal was satisfied the business would continue to operate. As to the community ties, the Tribunal was not satisfied that this would provide a basis for a finding of compelling reasons. Further, as a whole, the Tribunal was not satisfied the applicant’s ties to Australia amounted to compelling reasons for not applying Schedule 3 criteria.
As to circumstances beyond the applicant’s control, the Tribunal considered the applicant’s claims that he was unable to apply for the visa within 28 days because he had moved away from Sydney to undertake work and then moved back to Sydney shortly thereafter. The Tribunal recounted the applicant’s evidence at the hearing that he did not know about the Schedule 3 criteria. The Tribunal found that the applicant’s decision to leave his job and switch his migration focus from a work visa to a partner visa was one that was open to him and that these circumstances were not out of the applicant’s hands and for this reason, they did not amount to compelling reasons to not apply the Schedule 3 criteria.
Finally, the Tribunal considered whether the COVID-19 pandemic amounted to compelling reasons. The Tribunal stated that the applicant would likely be able to travel to and remain in Italy and the UK, that COVID-19 is a global crisis and that its effects are felt no matter the receiving country. The Tribunal noted that the applicant submitted no information to suggest that his travel to Italy or the UK would be especially affected by the pandemic and there was no evidence that suggested the applicant’s health or safety would be adversely affected.
Having considered all the evidence and the parties’ circumstances, the Tribunal was not satisfied that they individually constituted compelling reasons for not applying the Schedule 3 criteria.
The Tribunal also considered the claims cumulatively; after listing the relevant considerations, submissions and claims of the applicants, the Tribunal accepted that some of the applicant’s circumstances invoked sympathy and compassion, but it was not satisfied that cumulatively they constituted compelling reasons for not applying the Schedule 3 criteria.
Accordingly, the Tribunal found the applicant did not meet cl.820.211(2)(d)(ii) of the Regulations and subsequently did not meet the criteria for the grant of the visa.
APPLICATION TO THIS COURT
The amended application filed on 14 April 2021 contained three grounds of review, only two of those grounds were pressed.
In compliance with orders, the Minister filed and served the Court Book on 19 February 2021.
As provided for by orders of a Registrar of this Court, the applicant filed written submissions on 14 January 2025 and the Minister filed written submissions on 22 January 2025.
The matter was heard on 30 January 2025 at the Parramatta Registry of the Court. Mr Levingston of Christopher Levingston & Associates appeared on behalf of the applicant and Mr Dennis of Mills Oakley appeared on behalf of the Minister.
The Court Book was tendered into evidence and marked exhibit CB.
GROUNDS OF REVIEW
The applicant seeks to rely on grounds one and three contained in the amended application for judicial review which are reproduced below (without alteration):
1. The Second Respondent fell into jurisdictional error by applying the definition of the word "compelling" as formulated in Babicci's case (Babicci v MIMA (2005) FCAFC 77; 141 FCR) as the relevant standard to be met in consideration of what factors may inform "compelling reasons" in the context of criterion 820.211(2)(a) of the Migration Regulations.
…
3. The Second Respondent fell into jurisdictional error by failing to give a proper and genuine consideration to each integer of the Applicants claims said to constitute "compelling reasons" and further that there was a failure to give proper and genuine consideration to the cumulative claims.
Ground One
By ground one the applicant alleges that the Tribunal failed to apply the correct definition of “compelling” when determining whether there were “compelling reasons” as required by cl 820.211(2)(a).
The applicant submitted that the Tribunal’s decision (at [15]) sought to define “compelling reasons” by reference to the Full Federal Court’s discussion of the term ‘compelling’ in Babicci. It was submitted that in Babicci the Court considered the term ‘compelling’ in the context of the phrase ‘compelling circumstances’ in reg 1.20J(2) of the Regulations. It was submitted this regulation was a prohibitive clause that disqualified individuals who had already sponsored two previous partner visa applicants from sponsoring another unless the decision maker was satisfied that there were “compelling circumstances” that would justify the waiver of that clause.
The applicant submitted that ‘compelling circumstances’ in the context of reg 1.20J(2) cannot be used to define or contextualise the phrase ‘compelling reasons’ in the context of cl. 820.211(2)(d)(ii) and by doing so, the Tribunal misapplied or misunderstood the correct test.
The Minister contends that the Tribunal identified correctly that ‘compelling reasons’ was not defined in the regulations and referred to MZYPZ and Babicci to find that the compelling reasons should be ‘sufficiently convincing’ to lead a decision maker to make a positive finding in favour of not applying the criteria. The Minister submitted there is no evidence the Tribunal misunderstood or misapplied the correct test and there was no error in it citing MZYPZ and Babicci.
In considering this ground, the Court has had regard to Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 (Chhetri) and Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014 at [28] (Hassan) per Gleeson J, as relied upon by the Minister.
In Chhetri, where a similar contention was considered, the Federal Court at [45] was not persuaded that the Tribunal had misunderstood or misapplied the correct test by its citation of MZYPZ and Babicci in the context of cl 820.211(2)(d)(ii). Similarly, in Hassan, at [28] per Gleeson J, her Honour, having accepted that cl 820.211(2)(d)(ii) may be described as a ‘facilitative provision’, did not consider this to be a basis for concluding that the interpretation of “compelling circumstances” in Babicci was not relevant to the meaning of “compelling reasons” in cl 820.211(2)(d)(ii).
The Court accepts the Minister’s submission that the Federal Court (in Hassan and Chhetri) considered that the definition of ‘compelling circumstances’ in Babicci can be applied to the meaning of ‘compelling reasons’ in the context of cl 820.211(2)(d)(ii). The Court is bound by these Federal Court authorities.
The Tribunal did not misapply or misunderstand the correct test when considering whether there were compelling reasons for not applying the Schedule 3 criteria.
Ground one does not establish jurisdictional error on the part of the Tribunal
Ground Three
By ground three the applicant alleges that the Tribunal failed to give proper and genuine consideration to the claims (of compelling reasons) raised by the applicant. The failure is alleged to be in respect of an integer of a claim and a failure to consider the claims cumulatively.
In written submissions, the applicant referred to [21] of the Tribunal’s decision where it considered whether the applicant’s relationship was long-standing and found that the applicant’s and sponsor’s relationship had “most likely been on-foot for a period of under a year” at the time of the visa application, being 27 November 2017. The Tribunal did not consider that the parties were in a long-standing relationship at the time of the visa application, but with the passage of time, and the evidence before it which indicated that the relationship was continuing, it considered it long-standing at the time of its decision.
It was submitted that the evidence before the Tribunal, including the information provided in the visa application form and other evidence before the Tribunal was indicative of the couple being in a relationship for more than a year at the time of application.
The applicant contended that the Tribunal’s finding in respect of the length of the relationship at the time of application demonstrates its failure to give proper and genuine consideration to the evidence supporting the couple’s long-standing relationship prior to lodgement of the visa application.
In oral submissions, the applicant submitted that the length of the relationship was relevant to the consideration of ‘compelling reasons’ in cl 820.211(2)(d)(ii). The applicant relied upon Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila); specifically, where his Honour Griffiths J at [13] referred to the Explanatory Statement to the Migration Regulations (Amendment) 1996 No 75 which introduced the relevant provision of cl 820.211(2)(d)(ii). The relevant extract states:
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.
It is convenient to first consider whether the Tribunal had failed to give genuine and proper consideration to the evidence pertaining to the length of the parties’ relationship. In written submissions, the applicant set out the information provided in the visa application form in response to a question about the development of the parties’ relationship. Relevantly, it was stated that the applicant and sponsor, who (as children) were neighbours in Eritrea, resumed communication in January 2011. In December 2011, the sponsor migrated to Australia with her mother. A few months later (in a live chat) the applicant and the sponsor expressed their love for each other. They continued to communicate with one another and on 25 December 2016 the applicant proposed to the sponsor: CB 18. The submissions also refer to the text messages and calls between the applicant and the sponsor (CB: 71-79).
The Minister submitted that the Tribunal’s consideration of the length of the parties’ relationship was based on information provided by the applicant. It was submitted that in the visa application the applicant indicated that he and the sponsor met in person on 9 February 2017 (being the date he arrived in Australia) and that they committed to a shared life together on 10 September 2017 (being the date they married). The Minister acknowledged a factual error in the Tribunal’s decision at [18] where it stated that the parties had met as adults in January 2017. This should have stated February 2017, as the applicant first arrived in Australia on 9 February 2017. The Minister submitted that, notwithstanding the factual error as to the month the parties met in person, the Tribunal was clearly aware of the parties’ pre-existing relationship prior to their meeting as adults. The applicant conceded that this factual error was not material.
A fair reading of the Tribunal’s decision plainly indicates that the Tribunal considered the pre-existing relationship between the parties. At [18] the Tribunal stated:
Although the Tribunal has above chosen not to make a finding on the genuineness of the parties’ relationship, it is mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl.10. A cursory glance over the evidence of the parties’ claimed relationship shows that they claim to have met as adults in January 2017 (having known each other as children in Eritrea and having stayed in touch during the time they were apart until they met as adults) and to have committed to a shared life together to the exclusion of all others in September 2017 when they were married. The Tribunal finds that, at the time of application in November 2017, the parties’ relationship had most likely been on-foot for a period of under one year. With the passage of time between the date of application and now, the parties’ relationship has been on-foot for more-than-three years. The Tribunal considers that the parties were not in a long-standing relationship at the time of application, although through evidence showing that the relationship is continuing, it is long-standing at the time of this decision.
The Tribunal was aware that the parties knew each other as children and had stayed in contact with one another until they met in person as adults. The factual error regarding the month they met in person is inconsequential. The Court accepts the Minister’s submission that the Tribunal was not required to refer to every piece of evidence. This is particularly so in circumstances where it was not assessing whether the parties were in a spousal relationship for the purposes of s 5F of the Act. It is evident from the Tribunal’s reasons at [18] and [19] that it considered the material before it by reference to the issue it had to determine, being whether the parties’ relationship established compelling reasons not to apply the Schedule 3 criteria.
It was open for the Tribunal, on the evidence provided in the application, to find that the parties’ relationship, at the time of application, had most likely been on-foot for a period of under one year. In any event, the Tribunal assessed the length of the relationship at the time of its decision. The Tribunal’s reasons demonstrate that it was aware of the Explanatory Statement (referred to in Waensila) which recognised that a long-standing relationship which has been in existence for two years or longer may, depending on the circumstances, justify the waiver of the Schedule 3 criteria.
In this case, the Tribunal was not satisfied that this fact alone established a compelling reason not to apply the Schedule 3 criteria. This finding was open to it on the evidence before it and for the reasons it gave. It cannot be said that the Tribunal had failed to consider the evidence before it pertaining to the parties’ relationship, nor cannot be said that it failed to consider an integer of that claim.
As to the complaint that the Tribunal failed to consider the claims (individually and cumulatively) said to constitute compelling reasons, this is not made out.
A fair reading of the Tribunal’s decision demonstrates that it comprehensively considered each of the matters raised by the applicant. The Tribunal engaged with the evidence before it in respect of each claim and provided cogent reasons why it was not satisfied that any of them established compelling reasons for not applying the Schedule 3 criteria. It cannot be said that it failed to identify, understand or evaluate each of the claims raised by the applicant.
The decision plainly demonstrates that the Tribunal considered the claims cumulatively. At [48] the Tribunal considered whether the evidence before it and the parties’ circumstances amounted to compelling reasons “when taken together”. It went on to state those circumstances and ultimately concluded at [49] that while they invoked sympathy and compassion, it was not satisfied that the circumstances in combination with each other constituted compelling reasons for not applying the Schedule 3 criteria.
It was for the Tribunal to undertake an evaluation of the evidence and circumstances in determining whether or not it was satisfied that compelling reasons existed for not applying the Schedule 3 criteria. While another Tribunal may, on the same evidence, have come to a different conclusion, this does not establish jurisdictional error. The Court accepts the Minister’s submission that the Tribunal’s assessment of claims and evidence raised by the applicant was comprehensive, its findings were open to it on the material before it and that a logical or rational decision maker could have come to the same conclusion: Minister forImmigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[135] per Crennan and Bell JJ.
For these reasons, ground three does not establish jurisdictional error on the part of the Tribunal.
CONCLUSION
As none of the grounds pressed by the applicant establish jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 14 February 2025
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