Tung v Minister for Immigration
[2019] FCCA 2368
•27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TUNG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2368 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – partner visa – whether failure to understand and apply correct test for compelling circumstances – whether evidence overlooked, disregarded or not considered as to matters which might have been compelling reasons – whether reasonable apprehension of bias or pre-decision – whether denial of procedural fairness by not examining relevant witnesses – whether failure to properly determine the existence of jurisdictional fact in relation to longstanding relationship – whether failure to exercise jurisdiction according to law – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), Pts.5 and 7, ss.360, 363, 364, 368, 425, 430, 474, 476 Migration Regulations 1994 (Cth), Sch.2, cl.820.211, Sch.3, criterion 3001 |
| Cases cited: Ali v Minister for Immigration & Anor [2018] FCCA 121; (2018) 328 FLR 275 |
| Applicant: | CHENG MAU TUNG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 581 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 March 2018 |
| Date of Last Submission: | 22 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr B Nugawela and Mr L Ren |
| Solicitors for the Applicant: | Tan & Tan Lawyers |
| Counsel for the First Respondent: | Mr P Macliver |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The application filed 25 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 581 of 2016
| CHENG MAU TUNG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Cheng Mau Tung (“Ms Tung”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 28 October 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) to not grant Ms Tung a Partner (Temporary)(Class UK)(Subclass 820) visa (“Partner Visa”).
The Tribunal Decision appears at Court Book (“CB”) 501-508.
Background
The background to the Judicial Review Application is as follows:
a)Ms Tung is a citizen of China who first entered Australia on a subclass UD 976 (Visitor) visa on 3 December 2008: CB 13 and 270;
b)on 9 February 2009 Ms Tung was granted an onshore TU 572 (Student) visa which was valid to 1 May 2011, and it appears she then remained in Australia without a valid substantive visa until applying for the Partner Visa the subject of this application: CB 270;
c)Ms Tung met Dale O’Brien (“Mr O’Brien”), her sponsor, on 28 August 2010 and they began living together around September 2010 moving into an apartment they rented together in December 2010: CB 77, CB 79 and CB 81;
d)Ms Tung married Mr O’Brien on 28 July 2012 and lodged an application for the Partner Visa on 3 October 2012. At the time Ms Tung lodged the Partner Visa application, she had not been the holder of a substantive visa for a period of more than 28 days, and while Mr O’Brien was overseas on a holiday by himself he had signed the requisite sponsorship form nearly two weeks earlier: CB 77, CB 270-271 and CB 503 at [17]-[19];
e)Mr O’Brien withdrew his sponsorship on 15 October 2012 and upon learning of this on 19 October 2012 Ms Tung confronted Mr O’Brien and an incident of family violence occurred resulting in a Violence Restraining Order being made against Mr O’Brien in February 2013: CB 182, CB 192, CB 216-229 and CB 236-237;
f)Mr O’Brien left the shared home and the relationship ended on 22 October 2012, with the couple ultimately being divorced on 20 March 2015: CB 409;
g)on 20 June 2013 the Delegate’s Decision was to refuse to grant Ms Tung the Partner Visa on the basis she did not satisfy cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 270-275;
h)on 28 June 2013, Ms Tung applied to the Tribunal for review of the Delegate’s Decision and on 11 April 2014 the Tribunal affirmed the Delegate’s Decision not to grant her the Partner Visa (“Prior Tribunal” and “Prior Tribunal Decision”): CB 282-295 and CB 335;
i)on 12 May 2014, Ms Tung applied to this Court for judicial review of the Prior Tribunal Decision, and on 4 May 2016 orders were made by consent remitting the matter to the Tribunal on the basis of the decision of the Full Court of the Federal Court in Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (“Waensila”) which had been handed down in the interim period: CB 350-355 and CB 377-378;
j)Ms Tung’s representative provided submissions to the Tribunal dated 8 June 2016 and Ms Tung and her representative appeared before the Tribunal, differently constituted, on 6 October 2016 to give evidence and present arguments: CB 398-408 and CB 476-478; and
k)on 28 October 2016, the Tribunal Decision affirmed the Delegate’s Decision not to grant Ms Tung the Partner Visa: CB 501-510.
Tribunal’s Decision
In the Tribunal Decision, the Tribunal:
a)noted the criteria for the grant of the Temporary Partner Visa are set out in Part 820 of Schedule 2 to the Migration Regulations, and that the primary criteria must be satisfied by at least one applicant and that the Delegate had refused to grant the Partner Visa on the basis that the Ms Tung did not satisfy cl.820.211(2)(d) of the Migration Regulations because the Delegate was not satisfied that Ms Tung met the requirements of Schedule 3 of the Migration Regulations requirements or that there were compelling reasons to waive those requirements: CB 502 at [2]-[3];
b)provided a brief history of the matter including the Prior Tribunal Decision to affirm the Delegate’s Decision and the remittal of the matter from this Court for reconsideration following Waensila: CB 502 at [4]-[8];
c)identified that the issue in the present case was whether Ms Tung met the criteria in Sch.3 to the Migration Regulations as required by cl.820.211(2)(d) of the Migration Regulations, and if she did not, a secondary issue was whether there were compelling reasons to waive those criteria and grant the Partner Visa: CB 502 at [10];
d)provided a factual history of the events claimed to have occurred in connection with the Partner Visa application, and noted at the Tribunal hearing that Ms Tung asserted there had been a previous occasion of family violence in March 2011 where she described Mr O’Brien as “moody and possessive”, and on this particular occasion he wanted to know who she had received a text message from, tried to grab her phone from her and in the struggle, he struck her breast. The aftermath of this was that the pair did not speak with each other for a couple of days and Ms Tung saw a doctor who prescribed her anti−inflammatory medication: CB 503 at [12]-[23];
e)noted an applicant who is not the holder of a substantive visa at the time of the visa application must meet certain criteria in Sch.3 to the Migration Regulations, unless the Minister is satisfied that there are compelling reasons for not applying those criteria, and that it was not in dispute that Ms Tung did not have a substantive visa at the time of her Partner Visa application: CB 504 at [28]-[29];
f)found that the relevant day for the purposes of criterion 3001 of the Migration Regulations was 1 May 2011, being the day on which Ms Tung’s student visa expired, and the application for the Partner Visa was not made until 3 October 2012, therefore as the Partner Visa application was not made within 28 days of the relevant day, Ms Tung does not satisfy criterion 3001 of the Migration Regulations and as the remaining relevant criteria are cumulative, Ms Tung could not meet the remaining relevant Sch.3 criteria in the Migration Regulations: CB 504 at [31]-[32];
g)referred to cl.820.211(2)(d) of the Migration Regulations allowing the Tribunal to determine if there is a “compelling reason” to waive the Migration Regulations Schedule 3 criterion, and considered a number of sources to assist it in making its decision including the Explanatory Statement to cl.820.211(2)(d) of the Migration Regulations and various legal precedents including Waensila: CB 505 at [34]-[37];
h)noted that in the claims referring to “compelling reasons” Ms Tung asserted in her statutory declaration, and in the hearing before the Prior Tribunal, that:
i)she had been in a long-term relationship with Mr O’Brien;
ii)she would have nowhere to live and no employment if she returns to Hong Kong or to China;
iii)she would face shame upon return to China because of her failed marriage;
iv)she has been in Australia for several years, has found work in Australia and has friends and an established life here; and
v)though she did not specifically assert that the family violence was a compelling reason for the waiver of the relevant Migration Regulations criteria, the result of the physical assault she suffered had caused her be physically unwell due to mental stress to the extent she did not feel that she could seek emotional support from friends and family because of the shame of the situation, and that her financial resources at the time of the family violence and for several months thereafter did not permit the Ms Tung to maintain health insurance and as she was not covered by Medicare the costs associated with the claimed family violence were significant: CB [38]-[40] and CB [42]-[43];
i)set out Ms Tung’s submissions, including:
i)the emotional exhaustion and “mental conditions and stress” resulting from the legal battles related to her Partner Visa;
ii)that she is currently working as a medical equipment sales person and has adapted to her life in Australia;
iii)while she is familiar with Chinese culture and the Chinese society she may be subjected to certain hardship if she is forced back to China due to the difference between the Chinese and Australian society; and
iv)it might be hard for Ms Tung to start afresh in China as a middle-aged woman on her own after being cut off from Chinese society for nearly 10 years: CB 506 at [41];
j)noted that the relevant policy has “termed” relationships of at least two years to be long-term, and “divorced” from the context of an ongoing relationship and given the largely declaratory evidence presented as to the length of the relationship, being Ms Tung’s claim that she had been in a de facto relationship with Mr O’Brien from November 2010 until their marriage in July 2012 (a period of one year and 9 months) and then in a spousal relationship from July 2012 until the relationship ended in October 2012, the Tribunal did not consider the length of the relationship to be a compelling reason for waiving the relevant criteria: CB 506-507 at [44]-[45];
k)considered the length of time Ms Tung had lived in Australia and noted when weighing this factor that during nearly eight years in Australia she has held a three month temporary visitors visa, a two year student visa, which she was both unqualified for and did not study under, and was an unlawful non-citizen for another year, and has since held a series of bridging visas and, until the lodgement of the Partner Visa, none of the previous visas have given rise to a reasonable expectation of long-term residence, therefore it found the length of Ms Tung’s residence in Australia was not a compelling reason for waiving the relevant criteria: CB 507 at [47];
l)following from the reasoning regarding the length of the Ms Tung’s residence in Australia, similarly did not consider it to be compelling that she made friends and contacts in Australia or that she is in employment she enjoys: CB 507 at [47];
m)accepted that there might be some embarrassment or shame from Ms Tung’s family if she were to not be granted the Partner Visa and had to return to Hong Kong or China, though when having regard to her evidence that she separated from her first husband and the father of her two children prior to coming to Australia and several years prior to entering into a relationship with Mr O’Brien, found that the effect on Ms Tung of returning to China was not a compelling reason for waiving the relevant criteria: CB 507 at [48];
n)considered the claim that because the relationship had broken down, she would face hardship in that she is not able to make a fresh application offshore if the relevant criteria was not waived, and the Tribunal said it understood Ms Tung’s argument to be that an avenue of relief normally available to a person in a spousal relationship will not be available to her, however, in the particular context of the relationship having ended, the Tribunal did not find this to be a compelling reason to waive the relevant criteria: CB 507 at [49];
o)considered the claims that the violence she has suffered should be considered as compelling reasons to waive the relevant criteria, however, while it was unfortunate and the Tribunal expressed compassion for Ms Tung, it did not consider that the physical, mental and financial effects of the claimed family violence are compelling reasons for the waiver of the relevant criteria: CB 507 at [50]; and
p)affirmed the Delegate’s Decision not to grant the Partner Visa as the Tribunal was not satisfied that there were compelling reasons for not applying the Migration Regulations Sch.3 criteria, and accordingly Ms Tung did not meet cl.820.211(2)(d)(ii) of Sch.2 to the Migration Regulations.
Judicial Review Application
On 25 November 2016, Ms Tung lodged a Judicial Review Application on the following grounds:
1. The tribunal committed jurisdictional error by:
(a) failing to understand and apply the correct test concerning “compelling circumstances between [45]-[48], [50];
(b) overlooking, disregarding, or not providing any or adequate reasons for not considering (or impliedly rejecting) important evidence (including psychiatric evidence) concerning family violence, the significant and enduring impact upon the applicant’s mental health and medical treatment which flowed from the relevant family violence, as matters which informed whether compelling reasons exist or existed;
(c) demonstrated a reasonable apprehension of bias or pre-decision against the applicant during the hearing when it questioned the applicant’s state of knowledge of Australian men’s intentions in travelling to Thailand alone;
(d) denied the applicant procedural fairness by deciding not to examine relevant witnesses, yet concluding in its reasons that the evidence led by the applicant was merely in statutory declaration form;
(e) failed to determine, overlooked or wrongly (impliedly rejecting) the existence of a jurisdictional fact, namely, whether the applicant was in a long-standing relationship with her spouse at the material time;
(f) failed to exercise its jurisdiction according to law.
The affidavit filed together with the Judicial Review Application and sworn by Ms Tung on 25 November 2016 comprised 24 paragraphs and annexed the Delegate’s Decision, the Prior Tribunal Decision, the consent orders remitting the matter from this Court for rehearing and the Tribunal Decision the subject of this review.
Following an exchange in the hearing, the Minister agreed to provide to the Court the Procedures Advice Manual 3 (“PAM3”) in relation to subclass 820 visas and special provisions relating to family violence as at the date of the Tribunal Decision. Ms Tung also agreed the Court should receive these materials for consideration. On 27 March 2018 the Minister’s solicitor provided these materials to the Court.
Ms Tung’s submissions
Ms Tung made the following submissions:
a)the particulars of the grounds of appeal are inter-relatable, such that factual contents of particulars (c) and (d) would likely have coloured the Tribunal’s view on credibility and the standard of evidence it internally required for proof of the statutory criterion;
b)hypothetically speaking if particulars (c) and (d) do not succeed on their own as individual or separate grounds of judicial review, in combination they can inform whether jurisdictional error has occurred, hence it is possible that each of the particulars of the Judicial Review Application may or may not be, on their own individual merit, strong enough, but may be so when evaluated collectively;
c)the Tribunal took a dim view of Ms Tung’s credibility, otherwise it would not have made the references in particulars (c) and (d), and if Ms Tung’s evidence was diminished in the eyes of the Tribunal because most of it was in declaratory form, and if that was a concern to the Tribunal, and if that concern only occurred to the Tribunal after conclusion of the Tribunal hearing but before publication of the Tribunal Decision, then procedural fairness required the Tribunal to recall Ms Tung and give her an opportunity to address that concern;
d)there might also have been a constructive failure by the Tribunal to exercise its powers under ss.363(1)(a) and (3) or 364 or 425 of the Migration Act causing procedural unfairness because, had the Tribunal made its concerns known, Ms Tung could have called her ex-spouse, who was willing to give evidence if necessary;
e)as a matter of legislative policy, being in a relationship for 2 years is in itself compelling circumstances, let alone being in a relationship that ended because of family violence with ongoing physical, mental and financial sequelae: CB 222-229, 255, 405-407, 471-475 and 493-496;
f)the Tribunal fell into jurisdictional error by ignoring Ms Tung’s corroborative evidence, and the Tribunal impliedly rejected or discounted the written statement because it was merely in statutory declaration form: CB 507 at [45], yet Ms Tung gave her evidence on affirmation and this was illogical or a denial of procedural fairness;
g)the materiality of the above errors to the final outcome is that if the Tribunal had not made those errors, it may well have found at CB 507 at [45] that the length of the relationship itself may have presumptively, as a matter of legislative policy, or just as a matter of legislative policy simpliciter given rise to a conclusion of compelling circumstances, or at least may have tipped the balance in Ms Tung’s favour in a “cumulative” sense: CB 507 at [46] and [48]-[50];
h)the approach taken by the Tribunal seemed to be largely declaratory and dismissive of each positive consideration, one-by-one:
i)at CB 507 at [48] the Tribunal only considers historical factors and circumstances that existed at the time of Ms Tung’s first arrival many years ago, when it should have focused on her compelling situation as presented at the time of the Tribunal hearing;
ii)at CB 507 at [50] there is only an ipse dixit conclusion, and no reflection upon the rationale of the family violence provisions: CB 493-496;
iii)the Tribunal must also have overlooked the treating psychiatrist’s report at CB 471-475 because it does not mention it anywhere in its reasons;
iv)the Tribunal then carries forward all these deficiencies into its “cumulative” assessment that is a mere formulaic statement and not the product of an “active intellectual process”; and
v)the Tribunal did not apply the legislative and established policy guidelines, or important relevant evidence concerning family violence, in making its evaluative decision as to whether “compelling circumstances” existed;
i)having regard to each particular, or a combination of two or more of the particulars, what has gone wrong is of such significance and materiality in the context of the Tribunal’s legislative powers and function that the gravity of the error rises to the height of a jurisdictional error; and
j)the Tribunal’s approach and conclusion is also unreasonable, and perhaps even falls short of the proportionality standard as expressed in “Keynote Address: Judicial Review of Administrative Action in Australia” authored by Griffiths J of the Federal Court and delivered on 28 October 2016 (“Griffiths Keynote Address”).
At hearing, it was submitted on behalf of Ms Tung that:
a)the process for examining whether an error has been committed in the Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) sense, is an evaluative one to determine whether, in hindsight, the decision made passes the threshold of rationality and reasonableness;
b)it is not that the decision must be so irrational and unreasonable that no reasonable decision-maker would have made it, rather in modern terms, it is expressed more positively terms such that it can be said that on all the relevant evidence before the decision-maker only one reasonable conclusion was open as a matter of law;
c)the reliance on Li in this case is that it is possible that each of the particulars of the ground of appeal in the application may or may not be, on their own of individual merit, strong enough but, when evaluated together they may be;
d)in respect of particular (d), where it is complained that there was a denial of procedural fairness by deciding not to examine relevant witnesses, yet concluding in its reasons that the evidence led by Ms Tung was merely in statutory declaration form, it is clear from the Transcript that Ms Tung gave evidence on affirmation, which makes one wonder why the Tribunal thought that a declaration is somehow less probative;
e)termination of a de facto relationship involves subjective belief as to when it ceased, and on all the evidence in this matter that was before the Tribunal it ceased after the act of violence which was a critical jurisdictional fact that went to the question of compelling circumstances;
f)whether one looks at PAM3 as a source of statutory obligation or looks at it as a source of legitimate expectation, there is a presumption that once a relationship has lasted two years that this is a key jurisdictional fact, the centrality of which was apparent to the Tribunal;
g)when, after the hearing, something occurs to a decision maker that is central to writing their decision, natural justice requires them to recall the party and put it to them;
h)it is not enough to dismiss evidence because it is “declaratory”, there is no indication of what is meant by that statement or why it was not probative, and it was not a rational way to dismiss the presumption that a relationship of two years is a “compelling reason”;
i)the Tribunal had the job of evaluating how probative the evidence was and whether or not there was a longstanding relationship, which in this case it simply abdicated;
j)when one looks at PAM3 and the required nexus between the psychiatric injury and family violence there is no nexus required, family violence is a standalone ground and the psychiatric report is fundamental, yet there is no reference to the report in the Tribunal Decision;
k)the bias argument relates to a question asked by the Tribunal (which was also somewhat irrational or unreasonable to ask) during the course of the hearing which suggests the Tribunal must have had a view about Mr O’Brien, and possibly about Ms Tung herself, such that the Tribunal could have been biased against the spousal connection in this case;
l)CB 507 at [47] of the Tribunal Decision is discrete and self-serving; and
m)the presumption in PAM3 continues to apply notwithstanding that the relationship had ceased as once you have hit the two year “mark” and there is a truncation of any continuity as a result of family violence then the family violence provisions have effect.
Minister’s submissions
The Minister made the following submissions:
a)with respect to particular (a):
i)the Tribunal correctly stated at CB 505 at [35]-[37] that for reasons to be compelling they must be sufficiently powerful or convincing to move the decision-maker to waive what would otherwise be the required criteria and referred to relevant Federal Court authorities in support of these statements;
ii)there is not an objective requirement that the particular applicant’s circumstances amount to compelling reasons, rather, the Tribunal must be satisfied that the particular circumstances constitute compelling reasons;
iii)Ms Tung has not identified how the Tribunal failed to understand and apply the correct test, but merely refers to the Tribunal’s assessment of Ms Tung’s claims at CB 507 at [45]-[48] and [50] of the Tribunal’s Decision, and the fact that the Tribunal was not satisfied that the matters raised in those paragraphs amounted to “compelling reasons” for waiving the relevant criteria does not establish that the Tribunal failed to understand and apply the correct test; and
iv)in essence, particular (a) amounts to an invitation to the Court to engage in impermissible merits review, and does not establish any jurisdictional error on the part of the Tribunal;
b)in respect of particular (b):
i)the Tribunal did not overlook, disregard or impliedly reject Ms Tung’s evidence concerning family violence and its impact upon her mental health and medical treatment as it expressly referred, at CB 506 at [41], to [39] and [40] of Ms Tung’s submissions, referring to those claims and also referred, at CB 507 at [42], to Ms Tung’s assertion that, in addition to the physical assault she suffered, she had been physically unwell due to mental stress;
ii)that the Tribunal overlooked or disregarded Ms Tung’s evidence concerning family violence and its effects on Ms Tung’s health and medical treatment cannot be made out particularly where at CB 507 at [50] the Tribunal made an assessment of the evidence; and
iii)there is no basis for the suggestion in particular (b) that the Tribunal impliedly rejected evidence concerning family violence and its effects on Ms Tung as the Tribunal gave no indication that it did not accept that family violence had occurred and impacted upon Ms Tung’s health and the Tribunal noted at CB 507 at [50] that the circumstances Ms Tung met with were unfortunate and expressed some compassion for her, therefore there was no jurisdictional error;
c)in regard to particular (c):
i)the test for apprehended bias is relatively well settled being that it is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits; and
ii)Ms Tung has not adduced any transcript evidence of the Tribunal hearing on 6 October 2016, and even if the Tribunal did ask a question concerning Ms Tung’s former husband’s intentions in travelling to Thailand alone, that could not establish a reasonable apprehension of bias;
d)in relation to particular (d):
i)that Ms Tung had been in a long-term relationship with Mr O’Brien and whether this was a compelling reason for not applying the Migration Regulations Sch.3 criteria was assessed by the Tribunal: CB 507 at [45];
ii)there is nothing to suggest that the Tribunal considered but decided not to examine relevant witnesses concerning the length of Ms Tung’s relationship with Mr O’Brien;
iii)Ms Tung’s
submissions to the Tribunal referred to the Prior Tribunal Decision confirming at hearing that Ms Tung had been in a long-standing relationship, but did not submit that the Tribunal should find that Ms Tung’s de facto relationship commenced on 11 September 2010 when she moved into her former husband’s Kardinya house, rather than when they moved into the Murray Street property together on 6 December 2010;iv)although given the opportunity to do so, Ms Tung did not request that the Tribunal take oral evidence from any other witness at the hearing, and in the absence of any such request, it was open to the Tribunal to make findings and reach conclusions on the evidence presented to it without examining any other potential witnesses;
v)procedural fairness did not require the Tribunal to give notice to Ms Tung that it might conclude that the length of Ms Tung’s relationship with Mr O’Brien was not a compelling reason for waiving the relevant criteria, based in part upon the largely declaratory evidence presented by Ms Tung, as procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given;
vi)Ms Tung was aware that the Tribunal might conclude that her long-standing relationship with her former husband from 6 December 2010 was not sufficient to establish compelling reasons to waive the Migration Regulations Schedule 3 criteria. Both the Delegate and the Prior Tribunal had reached this same conclusion;
vii)the Tribunal did not disbelieve Ms Tung’s claims that she had been in a long-standing spousal relationship with Mr O’Brien, at least from 6 December 2010, rather the Tribunal was not satisfied that that long-standing relationship amounted to compelling reasons for waiving the Migration Regulations Sch.3 criteria, particularly in the absence of an ongoing relationship; and
viii)Ms Tung’s submissions refers to legislative policy that being in a relationship for two years is in itself compelling circumstances, referring to the policy in the PAM 3 that was amended in July 2014, yet those submissions did not assert that Ms Tung had been in a spousal relationship for two years or more and on that basis alone there were compelling reasons for waiving the Migration Regulations Sch.3 criteria;
e)in respect of particular (e):
i)the length of Ms Tung’s relationship with Mr O’Brien was not a jurisdictional fact which the Tribunal was obliged to determine as there was nothing in the Migration Regulations which provided that compelling reasons for waiving the Migration Regulations Schedule 3 criteria existed if, as a jurisdictional fact, an applicant was in a spousal relationship of 2 years or more, or any lesser period; and
ii)in any event, although the Tribunal made no express finding as to the length of Ms Tung’s spousal relationship with her former husband, the Tribunal clearly considered Ms Tung’s claim that they had been in a long-term relationship, but concluded at CB 507 at [45] that the relationship was not a compelling reason for not applying the Migration Regulations Schedule 3 criteria and that conclusion was reasonably open to the Tribunal and does not give rise to any jurisdictional error;
f)in respect of particular (f) there are no particulars in support of this allegation that the Tribunal failed to exercise its jurisdiction according to law and the failure to particularise this particular is itself sufficient to warrant dismissal; and
g)in respect of the submissions regarding unreasonableness:
i)it is to be noted that particulars (a) to (f) of the single ground of application do not raise in specific terms jurisdictional error on the basis that the Tribunal’s ultimate conclusion is irrational or illogical or unreasonable;
ii)it cannot be said that the Tribunal’s Decision is one at which “no rational or logical decision-maker could arrive on the same evidence”, and its conclusion, that even when Ms Tung’s claims were considered cumulatively it was not satisfied that there were compelling reasons for waiving the Migration Regulations Schedule 3 criteria, was a conclusion in respect of which rational or reasonable minds might differ; and
iii)for a decision of the Tribunal to be vitiated by jurisdictional error based on illogical or irrational findings of facts or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.
At hearing, the Minister submitted that:
a)Ms Tung’s submissions as to the duration of the relationship refer to PAM3 guidelines that were not the version revised in July 2014 whereby the expectation of the revised policy is that the waiver provision should not be applied where it is reasonable to expect Ms Tung to leave Australia and apply outside Australia for a partner visa;
b)the submissions to the Tribunal do not say or do not try and suggest that the Tribunal should reach a contrary finding to that of the Delegate or the Prior Tribunal, specifically that the Tribunal should reach a conclusion that the de facto relationship of Ms Tung and Mr O’Brien was one of two years or more. That submission was simply not put;
c)the suggestion that there was a legitimate expectation that, if Ms Tung was in a relationship of two years or more that the Tribunal would find that compelling circumstances existed is simply not sustainable because Ms Tung’s own submissions to the Tribunal did not seek to dispute the earlier finding of the Prior Tribunal that there was not a relationship of two years or more;
d)the PAM3 Ms Tung relies upon (which may not be the appropriate one in any event) talks about the persons concerned in a longstanding relationship on the assumption that they are still in that relationship, and that the relationship is a continuing one, which is not the case here and is why the Tribunal states “Divorced from the context of an ongoing relationship” (at CB 507 at [45]);
e)the question for this Tribunal was whether it was satisfied that the matters Ms Tung put forward amounted to compelling reasons and in doing so the Tribunal correctly set out the test for what amounts to compelling reasons and it concluded that it did not consider that what was put was something that amounted to compelling reasons for waiving the relevant criteria and nothing more was required;
f)the Tribunal has not disregarded any evidence, and in relation to the task of this Tribunal it was to consider whether a particular matter advanced by an applicant amounts to compelling reasons, and where a matter put is accepted but the Tribunal is not satisfied it amounts to compelling reasons the level of detail in the reasoning is not as detailed as required if the claim were rejected outright;
g)there does not have to be a rationale set out for the finding or conclusion, what needs to be examined by the Court is if the finding or conclusion was a conclusion that some other reasonable person might arrive at based on the evidence;
h)in its proper context, where the Tribunal is charged with determining whether or not a particular reason or reasons are sufficient to satisfy it that those reasons amount to compelling circumstances to waive the criteria, once the particular circumstances are accepted, then it is simply a matter for the Tribunal as to whether or not it is satisfied, and it is not necessary for the Tribunal to provide detailed reasons as to why it is not satisfied; and
i)while there is perhaps an assumption by the Tribunal in the question concerning Mr O’Brien put in the Transcript, that is not something that is sufficient to give rise to an apprehension of bias.
Relevant law
Schedule 2, cl.820.211(2)(d) of the Migration Regulations states:
(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.
It was not in contention that Ms Tung did not meet criterion 3001 of Sch.3 to the Migration Regulations. Therefore, pursuant to cl.820.211(2)(d)(ii) of Sch.2 to the Migration Regulations, the Tribunal had to be satisfied there were compelling reasons for waiving that criterion. It is the Tribunal’s consideration and finding that there were no “compelling reasons” that is the subject of the grounds of the Judicial Review Application.
Ms Tung cites ss.363(1), 364 and 425 of the Migration Act as possibly being breached by the Tribunal. The Court notes s.425 of the Migration Act is applicable to Pt.7 Reviewable Decisions, and the Tribunal’s Decision in Ms Tung’s circumstances is a Pt.5 Reviewable Decision. The Court infers Ms Tung’s reference to s.425 of the Migration Act is mistaken and the correct reference, being the mirror provision (to s.425 of the Migration Act) for Pt.5 Review Decisions, is s.360 of the Migration Act which required that the Tribunal must invite Ms Tung to appear at the hearing.
Section 360(1) of the Migration Act relevantly provides as follows:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Sections 363 and 364 of the Migration Act relevantly provide as follows:
363. Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c) subject to section 378, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination
…
(3) Subject to subsection (4), the Tribunal may, for the purposes of a review:
(a) summon a person to appear before the Tribunal to give evidence;
(b)summon a person to produce to the Tribunal the documents or things referred to in the summons;
(c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.
364. Tribunal’s power to take evidence
(1) The power (the evidence power) of the Tribunal under paragraph 363(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:
(a) a member conducting the review; or
(b) another person (whether or not a member) authorised in writing by that member.
(2) The evidence power may be exercised:
(a) inside or outside Australia; and
(b) subject to any limitations or requirements specified by the Tribunal.
…
Consideration
The requirement for jurisdictional error
A decision by the Tribunal may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), and a decision-maker may fall into jurisdictional error by reason of legal unreasonableness. The principles of legal unreasonableness were summarised in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ , CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
While the Judicial Review Application contained one ground of review with a number of particulars, the matter was argued on the basis that each particular itself could individually amount to a jurisdictional error. It was also argued that cumulatively (in part or whole) the particulars may amount to a jurisdictional error. For that reason, the Court will address each particular separately, and then consider them cumulatively.
Particular (a)
Particular (a) alleges that the Tribunal fell into error by failing to understand and apply the correct test concerning “compelling circumstances” at CB 507 at [45]-[48] and [50] of the Tribunal Decision.
To the extent Ms Tung is arguing that the Tribunal acted illogically or unreasonably in not finding there were compelling reasons to waive the criteria, the Court will address this in relation to particular (f) below: see [79]-[87] below.
The impugned paragraphs at CB 507 provide as follows:
45. Divorced from the context of an ongoing relationship and given the largely declaratory evidence presented as to the length of the relationship, I do not consider this to be a compelling reason for waiving the relevant criteria.
46. The applicant also asks the Tribunal to consider the length of time she has been living in Australia. Noting that the applicant arrived in December 2008 and has not since departed, the Tribunal accepts that the applicant has lived in Australia for just less than 8 years.
47. In weighing this factor, the Tribunal notes that during those nearly eight years, the applicant held a three-month temporary visitor’s visa, a two−year student visa (which she was both unqualified for and did not study under), was unlawful for another year, and then has held a series of bridging visas during the currency of this application. Until the lodgement of this visa, no previous visas have given rise to a reasonable expectation of long−term residence. The Tribunal does not find the length of the applicant’s residence in Australia to be a compelling reason for waiving the relevant criteria. It follows that the Tribunal similarly does not consider to be compelling the friends and contacts the applicant has made in Australia or that she is in employment she enjoys in Australia.
48. With respect to the effects of her return to China or Hong Kong and the difficulties she might face, the Tribunal accepts that there might be some embarrassment or shame from the applicant’s family. However, the Tribunal has also had regard to the applicant’s evidence that she separated from her first husband and the father of her two children prior to coming to Australia and thus, several years prior to entering into a relationship with her former sponsor. She arrived in Australia as the holder of a three−month tourist visa. In these circumstances, the Tribunal does not consider the effect on the sponsor of returning to her country of origin to be a compelling reason for waiving the relevant criteria.
…
50. The applicant has asserted that the physical, mental and financial effects of the family violence she has suffered should be considered as compelling reasons to waive the relevant criteria. The Tribunal notes that the circumstances the applicant has met with are unfortunate and the Tribunal has some compassion for the applicant. Nevertheless, the Tribunal does not consider that physical, mental and financial effects of the claimed family violence to be compelling reasons for the waiver of the relevant criteria.
The Court notes that at CB 507 at [48], there appears to be a reference to “the effect on the sponsor of returning to her country of origin”. It appears the reference to “sponsor” should be “applicant”. It was never claimed there would be any effect on the sponsor, and the Court is satisfied that, when read in context, this is nothing more than an immaterial typographical error: CRI026 v The Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529; (2018) 355 ALR 216 at [57] per Kiefel CJ, Gageler and Nettle J.
As is clear, the paragraphs that are referred to all share the common theme that the Tribunal rejected a particular matter put forward as a “compelling reason” in each paragraph.
There is no definition of “compelling reasons” in the Migration Act or Migration Regulations: SZUDO v Minister for Immigration & Border Protection [2018] FCA 194 at [8] per Logan J. The Tribunal acknowledged the lack of an express definition and then referred to relevant authorities as to the interpretation and application of “compelling reasons”.
The authorities set out by the Tribunal at CB 504-505 at [33]-[37] provide guidance as to what constituted “compelling reasons”. In broad terms, they are reasons that are sufficiently convincing to move a decision-maker to exercise a discretion to waive the requisite criteria, and they must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving particular criteria: MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478 at [10] per Bromberg J; Babicci v Minister for Multicultural Affairs & Immigration [2005] FCAFC 77; (2005) 141 FCR 285 at [24] per Tamberlin, Conti and Jacobson JJ. It has not been suggested that the Tribunal incorrectly identified those principles, rather the argument appeared to be that the Tribunal failed to apply those principles.
In Plaintiff M64/2015 v Minister for Immigration & Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [64] of per Gageler J it was said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker ‘feel an actual persuasion’ — ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition’. A statutory requirement that a decision-maker be satisfied that there are ‘compelling reasons’ for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
Having regard to the authorities set out above as to the interpretation and application of the phrase “compelling reasons”, the Court is not satisfied the Tribunal has misapplied or misunderstood the “correct test” for determining what are “compelling reasons”. It is a state of satisfaction that the Tribunal must arrive at, and the Tribunal has identified the correct principles derived from the authorities, and having done so, the Court should not lightly make a finding that the Tribunal has not applied the principles it has set out. What the Tribunal has done in the impugned paragraphs is indicate that the reasons Ms Tung put forward were not “sufficiently powerful” to lead the Tribunal to “make a positive finding in favour of waiving particular criteria”. Whether the Tribunal gave sufficient reasons for doing so is another issue (considered below in relation to particular (f): see [79]-[87] below), nonetheless, the Tribunal applied the correct test.
Ms Tung says that the Tribunal only considered historical factors and circumstances that existed at the time of Ms Tung’s first arrival (at CB 507 at [48]) as opposed to the compelling situation as presented at the time of the Tribunal hearing. The Court understands this to be a submission to the effect that the Tribunal had fallen into an error of the kind identified in Waensila. In Waensila, in considering provisions of the Migration Act and Migration Regulations which are also applicable to Ms Tung’s case, the Full Court of the Federal Court held that a decision-maker is not confined to determining if there are “compelling reasons” at the time of the application, rather “compelling reasons” may exist after that point in time and, in particular, compelling reasons that exist or have developed at the time of a Tribunal decision may be taken into account: Waensila at [16]-[22] per Robertson J and [49]-[59] per Griffiths J.
The Tribunal was not limiting or confining itself to a certain point in time at CB 507 at [48]. Rather it was considering the facts and circumstances of Ms Tung as a whole when determining if any difficulty she may face on return was “compelling”. It accepted that Ms Tung may presently suffer shame and embarrassment from her family as she was married and divorced from Mr O’Brien (her second husband) in a short period in Australia, but relied on past events (that she was already divorced from her first husband) to reason that this was not compelling. The Tribunal clearly assessed the alleged compelling reason, that Ms Tung would face difficulty returning to her country as a single middled age woman who has been removed from Chinese culture for at least eight years, as it existed at the time of the Tribunal Decision. The Tribunal reasoned that, prior to coming to Australia, Ms Tung gave evidence that she had separated from her first husband and came to Australia on a three month visitor visa, hence it can be inferred that Ms Tung will be returning in circumstances not dissimilar to that in which she left (and was originally going to return to after just three months) had she remained in Australia for the duration of her visitor visa.
There is no error, particularly an error of the Waenisila kind, in the Tribunal relying on Ms Tung’s own evidence of past events or circumstances to determine that it is not satisfied that such a reason (albeit developing after Ms Tung’s arrival) was not a “compelling reason”. The Court is satisfied that at no time in the Tribunal Decision did the Tribunal confine itself to a particular time, and in particular the time of application, when evaluating if reasons were compelling.
As the Minister submitted, particular (a), on its face, appears to be no more than an impermissible plea for merits review contrary to longstanding principle: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. That Ms Tung disagrees with the Tribunal having found that Ms Tung’s reasons were not “compelling” is not sufficient to suggest that it has misapplied or misunderstood the test or task it is to undertake. The oral submissions of Ms Tung appear to advert to the fact that the Tribunal did not understand the PAM3 guidelines, and the Court will address this in particular (e) below.
There are no objective criteria, or mandatory considerations, that the Tribunal is required to take into account in determining if there are “compelling reasons”, rather it is a state of satisfaction which, subject to notions of reasonableness, is a matter for the Tribunal to determine. There is nothing to suggest that the Tribunal misidentified or misunderstood the subjective evaluation of what “compelling reasons” are.
Particular (a) is not made out, and fails to identify any jurisdictional error in the Tribunal Decision.
Particular (b)
Particular (b) alleges that the Tribunal erred in failing to properly and genuinely consider the evidence concerning the alleged family violence that Ms Tang had suffered and the impact of this upon her and whether it amounted to a compelling reason to waive the criteria. The Tribunal recorded the following at CB 503 at [39] in respect of the “claims” of the family violence being a compelling reasons:
39…She also then made the claim of family violence, but she did not specifically assert that the family violence was a compelling reason for the waiver of the relevant criteria.
…
41. In her agent’s submissions to the Tribunal dated 8 June 2016 the compelling reasons put forward were:
…
40. As a result, Ms Tung has been seeing [a psychiatrist] for her mental conditions and for stress relief. We understand that [the psychiatrist] has been prescribing medicines for Ms Tung and Ms Tung has been taking those medicines.
…
42. Additionally, the applicant has asserted that in addition to the physical assault she suffered, she has been physically unwell due to mental stress and did not feel that she could seek emotional support from friends and family because of the shame of the situation.
43. Another asserted hardship is that her financial resources did not, at the time of the family violence, or for several months thereafter, permit the applicant to maintain health insurance and she was not covered by Medicare. Accordingly, medical costs associated with the claimed family violence were significant.
Submitted to the Tribunal was a report from Dr Boon Loke, a psychiatrist, dated 30 May 2016. The psychiatrist’s report indicates that Ms Tung was suffering from a panic disorder in respect of family violence, and notes as follows at CB 471-475:
History of Presenting Illness
In July 2012 Ms Tung married a man who was violent towards her. She took up a Violent Restraining Order and separated from him in October 2012.
Since 2012 Ms Tung had had increasingly frequent episodes of chest tightness and pain. In the previous two months she had at least one episode each day. During those episodes Ms Tung felt short of breath, dizzy, nauseous and, sometimes, blurred in vision. She was fearful that her heart might stop or she had a growth inside her chest.
Ms Tung first consulted with Dr Loke on 11 September 2014 (CB 471). There were a number of follow-up appointment and the last time that Dr Loke treated Ms Tung was on 20 August 2015 (CB 471). She had, thereafter, returned to her general practitioner. In relation to the report:
a)it was written by a psychiatrist who had not seen Ms Tung in over one year;
b)Ms Tung presented to the psychiatrist in September 2014, more than two years after the violence commenced, and almost two years after she separated from Mr O’Brien;
c)the psychiatrist does not conclusively link the family violence to Ms Tung’s panic disorder, noting only that increasingly frequent episodes arose “since 2012”; and
d)the medication Ms Tung was on at the time of the Tribunal hearing was not the same as that prescribed by the psychiatrist, but was rather prescribed by her general practitioner.
The Tribunal was in possession of the psychiatrist’s report, however does not specifically mention it in the Tribunal Decision. The Tribunal’s consideration of family violence is at CB 507 at [50] which is set out [22] above.
There is no requirement for the Tribunal to refer to every piece of evidence before it: Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55 at [31] per Dodds-Streeton J; Minister for Immigration & Citizenship v Pemberton [2010] FCA 430 at [35] per Besanko J. Having regard to the transcript of the Tribunal hearing (“Transcript”) , it is clear that the Tribunal did have the report and had clearly considered it: Transcript, page 16-17:
MR NAVELO: (Indistinct) the tribunal has (indistinct) the report by (indistinct).
MEMBER: Yes I do, thank you.
MR NAVELO: Thank you.
MEMBER: A point of clarification, Mr Navelo. In the final paragraph - two paragraphs of that report he said that he had switched her over to Pristiq, which was Desvenlafaxine.
MR NAVELO: Yes. (Indistinct), yes.
(The Court notes that the references to “Mr Navelo” should be to “Mr Nugawela”, who was Counsel for Ms Tung both before the Tribunal and before this Court: see CB 426 and [49] below).
In light of the above exchange, the Court is satisfied that the Tribunal has considered the psychiatrist’s report and actively engaged with it, particularly so given the Tribunal was able to recognise in the course of the Tribunal hearing that the medication Ms Tung said she was now taking was not the same as that referred to in the psychiatrist’s report. On this basis, it cannot be said that the Tribunal has not taken into account the psychiatrist’s report, and likewise it can be so inferred because the Tribunal at CB 507 at [50] has referred to both Ms Tung’s assertion of, and the Tribunal’s consideration of, the “mental … effects” of the family violence.
It is apparent from CB 507 at [50] that the Tribunal has not rejected that Ms Tung has suffered “physical, mental and financial effects of the family violence”. Had it rejected that Ms Tung had suffered these matters it would not have expressed that the circumstances were unfortunate and have expressed compassion. On a common-sense reading of CB 507 at [50] as a whole, the Tribunal has accepted that Ms Tung has suffered from the claimed family violence, though ultimately was not satisfied that the effects thereof were “compelling” enough to waive the criterion.
Particular (b) is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Particular (c)
Particular (c) contends the Tribunal demonstrated a reasonable apprehension of bias or pre-decision against Ms Tung.
The test for a reasonable apprehension of bias is whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ. Pre-decision bias requires a pre-existing state of mind on the part of the Tribunal disabling, or rendering it unwilling to undertake, a proper assessment of the relevant issues: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J.
Ms Tung refers to the following exchange during the Tribunal hearing:
MEMBER: Yes. I’ll give you (indistinct). I’ll give you a date. Mr O’Brien, you’ve said, went overseas on 29 September 2012, a few days prior to you making this application. What was the nature of your relationship when he left?
INTERPRETER: Nothing had changed. We were quite happy with each other.
MEMBER: What were his plans when he went to Thailand then?
INTERPRETER: Quite a few months ago he already booked this trip.
MEMBER: Prior to your getting married?
INTERPRETER: Yes, before we got married.
MEMBER: Did you not consider it unusual for a relatively newly married man to go on a (indistinct) holiday (indistinct) to Thailand, given the reputation of the behaviour of Australian men in Thailand?
INTERPRETER: Not really. I quite trusted him, and that he said he was working very hard and just want to take some time off, have a bit of rest.
MEMBER: (Indistinct) his manner and behaviour towards you change?
INTERPRETER: Just around 10 days after he went to Thailand, so just a few days before he came back.
(Transcript, page 7)
Later in the Tribunal hearing there was a further exchange as follows:
MEMBER: Another issue for me may be that I need to determine that - whether - sorry. I need to determine that, on 3 October when you made this application, you were then in a genuine spousal relationship with Mr O’Brien. So you said that it was on 10 October or so that you sensed his manner changing towards you. Did you have no sense or later understanding that he became involved with somebody else during his trip to Thailand?
INTERPRETER: No, not prior to 10 October.
MEMBER: When he was back, did he, at any time, tell you that he had met someone else while he was in Thailand?
INTERPRETER: No.
MEMBER: Did you have that understanding from anybody that he had met someone else in Thailand?
INTERPRETER: No. I didn’t hear anything about it.
MEMBER: You did say in a statutory declaration that you, in your understanding of telephone conversations he was having, he talked about limitations on sponsorship.
INTERPRETER: So she just wants be to repeat.
MEMBER: Yes.
INTERPRETER: Sorry Member, could you repeat that sentence again?
MEMBER: Okay. I guess that I’m trying to determine is whether you recall overhearing, from the telephone conversations, discussions about that he could only sponsor one or two people, like he had sponsored you. Do you remember hearing anything like that?
INTERPRETER: I can’t recall that.
(Transcript, pages 9-10)
The context in which the Tribunal asked Ms Tung the questions at Transcript pp.7 and 9-10 appears to have been to assess whether, at or about the time of the application, Ms Tung and Mr O’Brien were in a “genuine spousal relationship”. In the Court’s view the Tribunal’s line of questioning as to the genuineness of the relationship was appropriate given Mr O’Brien’s sponsorship was withdrawn shortly after the application was made and when Mr O’Brien had been on holidays at the time, and where the newly married Ms Tung herself plainly harboured doubts or concerns about his relationship with her following his trip to Thailand, and the views he expressed about Thai women. Those doubts or concerns were expressed by Ms Tung, and the Tribunal’s line of questioning plainly arises from, Ms Tung’s statutory declaration made 25 March 2013 which is relevantly as follows:
30. I asked him to look after himself. He said he would be visiting some tourist places and he would buy me some gifts. I was very happy that he always thought about me.
31. Dale called me after he arrived in Thailand informing his safe arrival. We were calling each other once or twice a day for over a week.
32. However, when I called him on or about 10 October 2012, he did not answer. I called him a few times that day. I was getting worried about him.
33. He called me back the next morning. He was very rude and said that I should not call him anymore. He said I was very annoying and I should stop hassling him while he was having a holiday.
…
43. On Sunday 14 October 2012, we went out for breakfast together. He was making several phone calls. He seemed very happy.
44. Although my English was not very good, I heard him saying that Thai girls were very beautiful and sexy, houses were very cheap there and he wanted to move to Thailand. He totally ignored my presence. I asked him whom he was talking to and he said it was his sister.
(CB 222-229)
Save for the perhaps too broadly expressed assumption about the reputation of Australian men travelling to Thailand, the questioning by the Tribunal in relation to the possibly effect and outcomes arising from Mr O’Brien’s visit to Thailand arise directly out of Ms Tung’s own evidence about Mr O’Brien’s conduct tendered to the Tribunal. The line of questioning is relevant to the nature of the relationship between Mr O’Brien and Ms Tung at that time. And, when the Transcript is read as a whole, it is evident that the line of questioning was legitimate given that Ms Tung indicated that Mr O’Brien’s manner and behaviour towards her changed at or about, or just after, the time of his visit to Thailand: Transcript, p.7.
The Court notes that Ms Tung was represented at the Tribunal by Mr Nugawela (incorrectly referred to as Mr Navelo in the Transcript), the same barrister who represented Ms Tung before this Court. At CB 426 there appears a response to a hearing invitation from the Tribunal in which Ms Tung’s lawyers indicate that “Mr Brian Nugawela” will be Ms Tung’s representative at the Tribunal hearing. The hearing invitation response is dated 27 September 2016, just nine days before the Tribunal hearing.
The Court notes the remarks in Vakauta v Kelly (1989) 167 CLR 568; (1989) 63 ALJR 610; (1987) 87 ALR 633; (1989) 9 MVR 193; [1989] Aust Torts Reports 80-277 per Brennan, Deane and Gaudron JJ where the plurality in the High Court said at CLR at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
Mr Nugawela did not raise any issue before the Tribunal with the line of questioning now said to indicate bias. Mr Nugawela did however question Ms Tung on the reputation of “Australian men in Thailand”:
MR NAVELO: Okay. Do you know anything about the reputation of Australia men who go on holiday to Thailand?
INTERPRETER: She just wants me to repeat that again. I just try to do it a little bit simpler.
MR NAVELO: Yes. Yes (indistinct).
INTERPRETER: Yes.
MR NAVELO: Do you know many Thai people - or Australian people who visit Thailand?
INTERPRETER: And the reputation - - -
MR NAVELO: Who go on holiday to Thailand? That’s the first part.
INTERPRETER: Yes. Not really. Not quite heard about such a reputation.
(Transcript, page 19)
In the Court’s view, the fact that Mr Nugawela did not object to the question, and sought to have Ms Tung expand on the matter the Tribunal questioned Ms Tung about, suggests that the right to allege bias on this basis has been waived.
Whether or not the right to allege bias has been waived is ultimately immaterial, as the other facts do not establish a case of reasonable apprehension of bias or pre-decision, but rather questioning which arises directly out of Ms Tung’s evidence, and questioning which is relevant to the nature of the relationship between Ms Tung and Mr O’Brien.
Particular (c) is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Particular (d)
Particular (d) alleges that the Tribunal denied Ms Tung procedural fairness by deciding not to examine relevant witnesses, yet concluding in the Tribunal Decision that the evidence led by Ms Tung was largely “declaratory”. It was also suggested other examples arose where the Tribunal ought to have sought information or questioned other persons, such as Mr O’Brien, in respect of the length of the relationship or his travels to Thailand. It is in respect of this particular that Ms Tung appears to rely upon s.364 of the Migration Act.
It is convenient to set out at CB 506-507 at [44]-[45] of the Tribunal Decision:
44. With respect to the length of the relationship, it is the applicant’s claim that she had been in a de facto relationship with the former sponsor from November 2010 until their marriage in July 2012 (a period of one year and 9 months) and then in a spousal relationship from July 2012 until the relationship ended in October 2012 (a further period of three months). The Tribunal notes that the relevant policy has termed relationships of at least two years to be long-term.
45. Divorced from the context of an ongoing relationship and given the largely declaratory evidence presented as to the length of the relationship, I do not consider this to be a compelling reason for waiving the relevant criteria.
This ground is premised on the basis that the Tribunal has rejected that Ms Tung and Mr O’Brien had been in a relationship for two years. For reasons that will be explained in particular (e), the Court is not satisfied the Tribunal did, in fact, reject that the relationship had not been of two years duration. However, for the purposes of this ground, it is not necessary to examine this further.
It is noted that in the Delegate’s Decision at CB 274 the following is stated:
3) In your statutory Declaration dated 28/02/2013, personal statements dated 22/09/2012 and 01/09/2012 and joint Statutory Declaration dated 26/09/2012 you claimed that you have been in a long term relationship of more than two years at time of lodgement. However, you have not provided evidence to satisfy me for the period claimed of two or more years of your relationship with your sponsor.
On review to the Prior Tribunal, Ms Tung provided further statutory declarations from other individuals which indicated that Ms Tung and Mr O’Brien had moved in together around August-September 2010: CB 310-320. The Prior Tribunal found at CB 338 at [21] and 340 at [32]-[33] as follows:
21. The representative argued that the parties had been in a relationship for two years and as they had been living together for over two years, would be considered by the Family Court as being in a de facto relationship. The Tribunal indicated that it was required to examine the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of persons’ commitment to each other in concluding whether the parties were in a genuine spousal relationship.
…
32. The Tribunal accepts the parties were in some kind of relationship from September 2010 but despite the sworn affidavits of the applicant and sponsor stating that she moved in with him in September 2010, is not convinced, based on the other available evidence that they were in a spousal relationship from this time. The Tribunal is satisfied based on the available evidence that the applicant commenced her de facto relationship with the sponsor in December 2010 when they moved into the Murray Street property together. The Tribunal arrives at this conclusion based on the sponsor’s statement that their relationship had grown and the love became stronger so they decided to move into the Murray Street property together and shortly after travelled to Melbourne where the applicant met his family. A copy of the sponsor’s will dated July 2011, leaving all his property to the applicant was provided to the Tribunal indicating the development of their relationship.
33. The Tribunal has considered the affidavit of Kwan Ting Ng that states she was a friend of the applicant, had been since 2007and was aware from the applicant that she was moving into the Murray Street unit with her boyfriend (the sponsor) but did not know when she started living with him or where she was living prior to the applicant moving into this property. The Tribunal was unable to test the evidence given by Fei Luo as he was not contactable as he had left Australia. The Tribunal has considered the evidence of Frederick Welch that he noticed a young lady of Asian appearance in the backyard as well as in the company of the sponsor and accepts that the applicant stayed at the sponsor’s home in Kardinya prior to moving into the Murray Street property. However, the Tribunal is not satisfied that the parties were in anything more than a boyfriend/girlfriend stage of their relationship at this time until they moved into the Murray Street property together.
Ms Tung was on notice that the evidence that she had provided to the Prior Tribunal may not be sufficient to establish that the relationship had exceeded a duration of two years. In particular, the Court notes both the Delegate and the Prior Tribunal refer to the fact that the declarations that were provided only went to when Ms Tung and Mr O’Brien commenced living together, and there were other aspects that were relevant to determining the duration of the relationship. Nothing further was provided to the Tribunal prior to the Tribunal hearing, and, significantly, and unlike before the Prior Tribunal, Ms Tung did not request that the Tribunal contact Mr O’Brien, or any other witness, to provide oral evidence: CB 374-375 and 466-468.
Ms Tung was on notice that the duration of the relationship was a critical issue, not only because both the Delegate and the Prior Tribunal had found that the evidence was insufficient, but also as the Prior Tribunal had found that the length of the relationship was, in itself, insufficient to amount to a compelling reason. For this reason, it is not accepted that the Tribunal somehow denied Ms Tung procedural fairness in failing to take evidence from another person, or for asking Ms Tung back to provide further evidence: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
That the Tribunal refers to the “largely declaratory evidence” is an observation of fact. The evidence of the length of the relationship was largely by way of statutory declaration. At CB 505 at [39] and 506 at [40] the Court notes that the Tribunal recorded the following under the heading “Applicant’s claims relating to compelling reasons”:
39. She asserted that she had been in a long−term relationship with her sponsor.
…
40. The applicant re−asserted her claim that she had been in a long−term relation to the earlier tribunal in April 2014.
The Tribunal footnotes what is referred to at CB 505 at [39] of the Tribunal Decision above with a reference to one of Ms Tung’s statutory declarations. The reference at CB 505 at [40] of the Tribunal Decision is to what Ms Tung “asserted” at the Prior Tribunal hearing. To the Court, this suggests that the Tribunal treated the statutory declarations as an assertion, or a statement of her claims of compelling reasons. There was little in the form of supporting documentary evidence such as shared bank statements, lease agreements or other similar documents from a time prior to the marriage of Ms Tung and Mr O’Brien. What the Tribunal had were a number of declarations from different persons about when Ms Tung and Mr O’Brien began living together. The “declarations” were limited in establishing any of the other aspects of a “relationship”, such as financial and social aspects.
A statutory declaration is “declaratory” evidence. The difficulty here is with the statement that “given the largely declaratory evidence presented” the Tribunal did not consider this a compelling circumstance. The question arises as to whether the Tribunal did not consider the evidence sufficiently probative because it was in “declaratory form”. While this may be the case, ultimately, the Tribunal is entitled to accept or reject, and determine the weight it gives to the evidence provided as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan, Toohey, McHugh and Gummow JJ.
The Court is not satisfied that the reference to the “largely declaratory evidence” suggests the Tribunal adopted an unreasonable or illogical approach to considering the “long-term relationship”. The use of the word “declaratory” is neither here nor there. It was the adjective (appropriate or otherwise) that the Tribunal used to communicate that it was not satisfied that the nature of the evidence before it on the length of the relationship established a “compelling reason” to waive the criteria. It is not the case that the Tribunal has not turned its mind to the evidence before it, it is simply that the Tribunal was not satisfied by the “largely declaratory” evidence. While another Tribunal may have used a different adjective, the Court is satisfied it was open to the Tribunal on the evidence before it to not be satisfied that, in light of the fact that the relationship was no longer ongoing, the length of the relationship was not a “compelling reason”.
What the Tribunal ultimately determined was that, in circumstances where the relationship had ended, and where the evidence in respect of the length of the relationship was declaratory, it was not satisfied this was a compelling reason for waiving the criteria. The Tribunal has a broad area of decisional freedom, and the Court is not satisfied that there is no logical connection between the evidence and the finding the circumstances were not compelling.
In respect of ss.360, 363 and 364 of the Migration Act the Court does not accept that the Tribunal has denied Ms Tung procedural fairness, or acted unreasonably in not exercising its powers to take evidence from other persons. Clearly, the Tribunal had considered exercising the power to call other persons, namely Mr O’Brien, to give evidence on when the relationship broke down and when the family violence occurred: Transcript, page 3 and 12. At pages 13-14 of the Transcript, the following took place:
MEMBER: All right. On my preliminary view - and you may wish to address this in the submissions that we’re talking about - my preliminary view is that March 2011, they have been living together, on the evidence before me, for about four months, in a de facto relationship. The relationship claimed (indistinct) is a spousal relationship. So it was not a spousal relationship that they were in in March 2011. While they claimed to be in a de facto relationship in March 2011, they would not, in March 2011, have met the de facto relationship criteria, because they were not in a de facto relationship for 12 months prior. So preliminarily, I would need (indistinct) that, in March 2011, they were not in either a de facto or a spousal relationship. On 19 October 2012, based on the consideration, I must look at (indistinct) what is a spousal relationship. I must consider, for example, whether there was a mutual commitment to a shared life, to the exclusion of all others, as of 19 October. The 15 October withdrawal indicates that there was not a mutual commitment. That also may indicate to me that there was not a spousal relationship on foot at that time. So those would be the two issues I would ask you to address in that regard.
…
MEMBER: All right. I’m just trying to consider whether I should actually call the sponsor or not. I think (indistinct words) and turn on the interpretation of the legal criteria with respect to (indistinct), and with the timing that you (indistinct) the family violence occurred. I must say, in light of the very tight timeframe, I also have some trepidation as to whether the relationship was on foot on 3 October, but I don’t have anything specifically to say that it was not. So I think I won’t dwell too much on that, and just look (indistinct words). Let’s see - we are in October, on the 6th - so why don’t I say by close of business on 14 October, which is the Friday?
MR NAVELO: (Indistinct) very generous, thank you.
MEMBER: All right. Depending on the outcome of the submissions, if I (indistinct) on this legal issue, we will do so. Otherwise, I will have another hearing, to go into the family violence issue more specifically.
It is apparent from this exchange that not only had the Tribunal provided an opportunity to address issues relating to the length of the relationship in post-hearing submissions, but that the Tribunal had also considered whether to call further witnesses. At that point it decided against doing so. It further indicated that, depending upon the content of the submissions and the Tribunal’s possible views, the Tribunal might contact the witnesses and return for another Tribunal hearing, if necessary. That was not unreasonable, and furthermore it was not objected to by Ms Tung’s Counsel.
Ultimately, the Tribunal determined that it was not necessary to consider calling any further witnesses or persons as the matters that the Tribunal felt they would be relevant toward (the family violence issue) did not ultimately need to be addressed as the Tribunal was not satisfied there were compelling reasons to waive the sch.3 criteria. It did so on the basis of the materials that were before it and in circumstances where Ms Tung was clearly on notice from the Prior Tribunal Decision of the defects in the evidence that she relied upon, and, significantly, she did not (unlike in the Prior Tribunal hearing) request any of those witnesses be called to provide evidence. At CB 427 the hearing invitation request asks whether Ms Tung will “request that the Member takes oral evidence from another person” to which the answer is “No”. Further, Ms Tung was represented by a firm of lawyers, who instructed Counsel from the Independent Bar to appear before the Tribunal (the same Counsel who appeared in these proceedings) and no request was made either at the Tribunal hearing by Counsel, or otherwise by the firm of lawyers, for further witnesses to be called on behalf of Ms Tung. There was no obligation on the Tribunal to conduct an inquiry or investigation on its own in relation to this issue, or to otherwise discover whether Ms Tung’s case might have been better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15, and more particularly so where Ms Tung was represented by Counsel and had a firm of lawyers acting for her.
Particular (d) is not made out, and fails to identify any jurisdictional error in the Tribunal Decision.
Particular (e)
Particular (e) contends the Tribunal failed to determine or overlooked the existence of a jurisdictional fact as to whether there was a long-standing relationship with her Mr O’Brien.
In Ali v Minister for Immigration & Anor [2018] FCCA 121; (2018) 328 FLR 275 at [28] per Judge Riley it was found that an incorrect finding as to when the relationship began could not amount to jurisdictional error as it was not a jurisdictional fact. While the length of a relationship may be a relevant consideration, whether the relationship was long-standing is not a jurisdictional fact. Specifically, the fact that the Tribunal did not make a finding that the relationship was long-standing, or what the length of the relationship was, does not mean that the Tribunal has failed to undertake its statutory task.
Ms Tung’s reliance on PAM3 is misplaced, and there appears to have been an assumption that if the relationship was “long-term” then there were “compelling reasons” for waiving the criteria. While the previous PAM3 may have suggested that a “long-term relationship” was itself a compelling reason, the PAM3 at the time of the Tribunal Decision did not so indicate. In full, PAM3 indicates:
8.7 Other unlawful non-citizens
Clause 820.211(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 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 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 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 have been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and a sponsoring partner, and/or 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 so 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 provisions should not be applied where it is reasonable to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discouraged 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 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)
It is simply not the case that PAM3 creates an “assumption” that if the relationship was “long term” then there were “compelling reasons” for waiving the criteria. Indeed, in Ms Tung’s circumstances there appear to be indications in the PAM3 that there ought not to be a finding of compelling reasons in her case in circumstances where she might have obtained an unfair advantage by reason of her earlier failure to comply with visa conditions, a matter addressed by the Tribunal at CB 507 at [47], and where she might have left Australia and applied for the Partner Visa from outside of Australia, a matter addressed by the Tribunal at CB 507 at [49]. Further, and expressly PAM3 indicates that the existence of a genuine spouse or defacto relationship, and hardship suffered from the separation from leaving such a relationship, do not, of themselves, constitute compelling reasons, a matter addressed at least in part by the Tribunal at CB 507 at [48].
In any event, even if it were the case that PAM3 created an assumption, PAM3 is only procedural and policy guidance to officers applying the Migration Act and the Migration Regulations: El Ess v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J (“El Ess”). The Tribunal is not bound by PAM3, and PAM3 is not a “relevant consideration” and therefore it cannot be said that a failure to make a finding on a matter stated in the PAM3 is a “jurisdictional fact”: El Ess at [45] per Gray J; Baston v Minister for Immigration & Border Protection [2018] FCA 73 at [68] per Siopis J; Dhimal v Minister for Immigration & Anor [2016] FCCA 194 at [23] per Judge Lucev.
In the Tribunal Decision at CB 506-507 at [44]-[45] the Tribunal states:
44. With respect to the length of the relationship, it is the applicant’s claim that she had been in a de facto relationship with the former sponsor from November 2010 until their marriage in July 2012 (a period of one year and 9 months) and then in a spousal relationship from July 2012 until the relationship ended in October 2012 (a further period of three months). The Tribunal notes that the relevant policy has termed relationships of at least two years to be long−term.
45. Divorced from the context of an ongoing relationship and given the largely declaratory evidence presented as to the length of the relationship, I do not consider this to be a compelling reason for waiving the relevant criteria.
The Tribunal did not make a finding of the duration of the relationship between Ms Tung and Mr O’Brien, but there was no need for it to do so. The Tribunal noted what Ms Tung claimed in respect of the length of the relationship and noted the policy termed relationships of at least two years to be “long term”: CB 506 at [44]. The reason the Tribunal did not need to determine the length of the relationship is found in the opening phrase of the first sentence of CB 507 at [45] of the Tribunal Decision where the Tribunal refers to the relationship as one “[d]ivorced from the context of an ongoing relationship…”. It was not necessary for the Tribunal to make a positive finding on the length of relationship as it can be inferred that the Tribunal considered that in circumstances where the relationship was not ongoing, it was not “compelling”. The Court is satisfied that, in circumstances where there was an absence of an ongoing relationship, the duration of the relationship was not a matter of significance, and was not a basis on which it was open and logical for the Tribunal to conclude that there were compelling reasons to waive the criteria.
Particular (e) is not made out, and fails to identify any jurisdictional error in the Tribunal Decision.
Particular (f) and cumulative consideration
Particular (f) appears to be an assertion that taking into account each of the matters in particulars (a)-(e) it can be inferred that the Tribunal failed to exercise its jurisdiction appropriately, and in particular, that the manner in which it arrived at its conclusions, was illogical, irrational and unreasonable.
The question was asked how the Court could be satisfied that the Tribunal was acting with an evident and intelligible justification, in a Li sense. The Minister suggested the Court refer to Minister for Immigration & CitizenshipvSZMDS [2010] HCA 16; (2011) 240 CLR 611; (2011) 84 ALJR 369; (2011) 266 ALR 367; (2011) 115 ALD 248 at [130]-[131] per Crennan and Bell JJ (“SZMDS”), however SZMDS goes to the point of whether a rational or reasonable mind may come to the same conclusion, whereas the Court was concerned with whether there was an evident and intelligible justification for the Tribunal to arrive at the conclusion.
Section 368 of the Migration Act dictates what is required in the “written statement”, or Tribunal Decision:
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based;
…
In Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [31] per French CJ and Kiefel J it was stated (with reference to s.430 of the Migration Act which is identical in terms to s.368 of the Migration Act):
Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:
1. Identification of the relevant evidence or material upon which findings of fact can be based.
2. Making findings of fact based on the relevant evidence or material.
3. Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
The Tribunal Decision does ultimately convey an evident and intelligible justification for the conclusions reached. The Tribunal refers to the reasons Ms Tung submitted as compelling, and the evidence before the Tribunal, and against the background of the legal principles referred to at CB 504-505 at [33]-[37] of the Tribunal Decision, the Tribunal determined if it is satisfied the “reasons” are compelling. In that regard, the Tribunal:
a)identified Ms Tung’s evidence that she had been in a relationship for approximately two years, and noted that in the context of the relationship having ended and the “declaratory” evidence it was not satisfied the circumstances were compelling: CB 507 at [46];
b)considered, and accepted, Ms Tung had lived in Australia for eight years and noted Ms Tung’s visa history, including that each visa Ms Tung had held did not give rise to a long-term expectation of residence, rather they were “temporary” or short-stay visas and therefore this was not a compelling reason, and that she had been an unlawful non-citizen for a period of time: CB 507 at [47];
c)with reference back to the previous finding that Ms Tung’s visa status did not give rise to an expectation of long-term residence did not consider that Ms Tung’s friends and employment were “compelling reasons”: CB 507 at [47];
d)accepted that there may be difficulties if Ms Tung returned to China or Hong Kong (Ms Tung having claimed she would return as an older unmarried and divorced woman), and referred to Ms Tung’s evidence that she left China in the same circumstances (having separated from her first husband prior to leaving China): CB 507 at [48];
e)did not consider, in the circumstances, that the effect on the sponsor was a compelling reason: CB 507 at [48];
f)referred to the submission that Ms Tung would not be able to apply for an offshore visa application, but given that she is no longer in a spousal relationship this was not a compelling reason: CB 507 at [49]; and
g)accepted that Ms Tung’s circumstances, and the physical, mental and financial effects on her, were unfortunate and that the Tribunal had compassion for Ms Tung, though this was not considered sufficiently compelling to waive the criteria: CB 507 at [50].
The Tribunal’s reasons were evident, transparent and intelligible: Li at [105] per Gageler J; Pandey at [41(d)] per Wigney J, and they were logical and open to be made. Further, it is not the case that no reasonable decision-maker could not have come to the same conclusion for the same reasons that the Tribunal did: SZMDS at [131] per Crennan and Bell JJ.
The Court is satisfied that the Tribunal has exercised its jurisdiction according to law. It has carried out the statutory task it was required to undertake, and that Ms Tung did not satisfy the Tribunal there were “compelling reasons” to waive the criterion was, in the absence of any unreasonableness or illogicality, a matter that was entirely for the Tribunal and not for this Court.
Insofar as Ms Tung argues that while the individual grounds may not amount to a jurisdictional error, cumulatively they may, the Court does not agree. For reasons already explained above, there was an intelligible, rational and reasonable justification for the Tribunal’s finding there were not “compelling reasons”. Considered cumulatively, particulars (a) to (e) do not disclose there was jurisdictional error in the Tribunal concluding at CB 507 at [51] that there were no “compelling reasons” to waive the relevant criteria.
Particular (f) is not made out, and fails to identify any jurisdictional error in the Tribunal Decision.
Conclusion
Ms Tung has failed to satisfy the Court that there is any jurisdictional error in the Tribunal Decision. The application must, therefore, be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 August 2019
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