Vaihu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 983
•23 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Vaihu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 983
File number(s): ADG 67 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 23 November 2022 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal affirming the delegate's decision to refuse a Partner visa - where the applicant did not satisfied Schedule 3 criteria - whether there were compelling reasons to waive the Schedule 3 criteria - where the applicant and his sponsor have been married for more than three years - whether the Tribunal failed to adequately discharge its statutory task - court not satisfied the Tribunal undertook active intellectual engagement with the reasons put forward by the applicant - application allowed Legislation: Migration Act 1958 (Cth) ss 65, 357A, 359AA
Migration Regulations 1994 (Cth) cl 1.03 801,221, 820.211
Cases cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 406 FLR 409
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Hinton v Minister for Immigration and Border Protection [2015] FCA 408
Minister for Home Affairs v G (2019) 266 FCR 569
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 44
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 94 ALJR 818
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 7 June 2022 Place: Darwin Counsel for the Applicant: Mr Young Solicitor for the Applicant: Gabito Lawyers Solicitor for the Respondents: Ms Calabrese for the Australian Government Solicitor ORDERS
ADG 67 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAULA LOTOMOUA VAIHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
23 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 14 January 2020.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 11 August 2017.
3.The First Respondent is to pay the costs of the Applicant fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 January 2020 affirming the decision of a delegate of the Minister (“the delegate”) made on 11 August 2017 to refuse the applicant a Partner (Temporary)(Class UK) visa under section 65 of the Migration Act 1958 (Cth) (“the Act”).
Background
The applicant is a citizen of Tonga. He first arrived in Australia in April 2011 as a holder of a visitor visa which expired in November 2011. After the expiry of his visitor visa the applicant continued to live in Australia without a visa. He appears to have lived with members of his family who resided in Australia and to have found employment.
In July 2015 applicant met his wife, an Australian citizen. The applicant and she married in July 2016. It is not suggested that the relationship is other than genuine. Both the applicant and his wife appear to have been aware of the irregular status of his residence in Australia.
In February 2017 the applicant, with his wife as sponsor, applied for a Partner visa. He was granted an associated bridging visa at the same time and, it appears, was permitted to work as a visa condition.
The applicant is 31 years old. His wife is 34 years old.
In August 2017 the delegate refused to grant the applicant a Partner visa on the basis that he did not satisfy the criteria under clause 820.211(2)(d)(ii) Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 820.211(2)(d)(ii) provides that:
(2) An applicant meets the requirement of this subclause if:
(d) in the case of an applicant who is not the holder of a substantive visa …:
(i) …
(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.
Criterion 3001 was applicable to the applicant and requires that the application must have been validly made within 28 days of the relevant day, being the last day the applicant held a substantive visa. The applicant remained in Australia without a substantive visa between 2011 and 2017, more than 5 years, before he made an application for a Partner visa. Accordingly, it was not in dispute that the applicant did not satisfy the applicable criterion in Schedule 3 (“the criterion”). The applicant sought to persuade the delegate that there were compelling reasons for not applying the criterion but failed to do so.
In August 2017 the applicant sought a merits review in the Tribunal which was heard in January 2020.
The Tribunal’s decision
The issue in the hearing before the Tribunal was whether there were compelling reasons not to apply the criterion.
The applicant appeared before the Tribunal to give evidence. His evidence was interpreted by a Tongan interpreter. The Tribunal also heard evidence from the applicant’s wife, mother-in-law and sister-in-law. The applicant relied on documents, including statements from relatives and others attesting to the genuineness of the relationship between the applicant and his wife, and financial documents indicative of a shared life and joint financial commitments.
At the hearing the applicant also produced other documents, including a medical report from a general practitioner confirming that the applicant suffers from diabetes and reporting that the applicant’s wife suffered from depression and anxiety, exacerbated by worry about the applicant’s immigration situation. The report said the applicant’s wife’s condition was managed by medication.
The applicant provided a report from his treating endocrinologist that described his diabetes in more detail. The endocrinologist said that more tests would be required to determine whether the applicant required insulin.
The applicant provided a copy of his and his wife’s residential lease and a copy of an invoice for a wedding reception. The applicant told the Tribunal that his wife had borrowed a large sum of money to pay for what was described as a “cultural wedding ceremony” in 2019.
The applicant advanced a number of reasons as to why the criterion should not be applied. He said he did not believe he would be able to find employment in Tonga. He said he wished to remain in Australia, to start a family and continue his current way of life.
The applicant said he suffered from diabetes, which was controlled with insulin, exercise and diet. He said his mother and sister, who resided in Tonga, also suffered from diabetes. Initially the applicant said he was not sure if insulin was available in Tonga but then confirmed to the Tribunal that his mother was treated with insulin in Tonga.
The applicant also told the Tribunal that he had had a “procedure” done to his left ear to improve his hearing and he continued to have regular check-ups. In response to the Tribunal member’s question about whether he had any documents about that he said his wife had the “paperwork”. It is not in dispute that the applicant’s wife did not give the Tribunal member the “paperwork” nor did the Tribunal member ask her for those documents. There was no further evidence before this court about the nature or effect of the applicant’s ear condition.
The Tribunal delivered its decision the following day. The Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criterion and therefore found that the Applicant did not satisfy clause 820.211(2)(d)(ii) of the Regulations. The application was refused.
Grounds of Review
In the application to this Court, the Applicant filed an amended application outlining multiple grounds of review for jurisdictional error. The amended application does not always set out each ground in a separate paragraph. Some paragraphs appear to be submission or argument or a mixture of submission and argument and grounds of review. Some paragraphs appear to repeat other grounds of review in a different form. There is substantial overlap between the grounds.
The applicant’s written submissions do not refer to specific paragraphs of the grounds of review but rather deal with general subject headings such as “procedural fairness”, “marriage”, “lifestyle”, “health”, and “finances”. Elsewhere in his submissions there are sub-headings with conventional descriptions of potential jurisdictional error such as “failure by the member to call evidence …”, “failure by the member to enquire …”, “failure by the member to alert the applicant to adverse points”, “consideration of irrelevant points …”, and “overall injustice in the manner and conduct of the hearing”. The submissions elaborate and, in some cases, expand the grounds of review.
I consider that the best course is to follow the grounds in the amended application but, where necessary, to describe them, as I interpret them with reference to the submissions, in my own words.
Ground 1
This ground alleges that the “Tribunal failed to act according to substantial justice and merits of the case, and/or failed to act in a way that is fair and just”. No particulars are provided. This is not a proper ground of review in its present form.
Ground 2
This ground alleges that the “Tribunal failed to consider and ignored critical evidence which supports the waiver of Schedule 3 of the Migration Regulations … in the Partner visa application of the applicant or otherwise failed to rely exclusively on relevant facts and information”.
The ground refers to a departmental policy instruction for decision makers, Procedures Advice Manual 3 (“PAM3”), relating to applications for a “Visa 820 - Partner”. The ground asserts that PAM3 recognised as a compelling reason for waiver of the criteria that “the applicant and the sponsor are already in a long-standing partner relationship (taken to be a relationship which has existed for at least two years”. This does not appear to be an accurate description or summary from the relevant PAM3. There was some argument about the applicable version of PAM3 and the court was then referred to what was said, by agreement, to be the applicable PAM3 at the time of the decision. That version recognised that a long-term relationship may be a ground for not applying the “two-year wait out period” after an application for a partner visa is made. However, part 8.7 of PAM3 reads:
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long-term relationship with the sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
…
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant circumstances may be considered compelling includes but are not limited to:
•any history of non-compliance by the applicant
•the length of time the applicant has been unlawful
•the reasons why the applicant became unlawful
•the reasons why the applicant did not seek to regularise their status sooner
•what steps, if any, the applicant is taken to regularise their status (other than applying for a Partner visa) (emphases in original)
The ground misstates the relevant effect of the policy instruction.
Counsel for the applicant pointed out in submissions that, in fact, the reference was to the Explanatory Statement to the Migration Regulations (Amendment) 1996 No. 75 (“the explanatory statement”), which refers to possible considerations in the waiver of the Schedule 3 criteria.
The relevant part of the explanatory statement says:
… The Schedule 3 requirements imposed certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
•where there are Australian citizen children; or
•where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the schedule 3 criteria were not waived.
In relation to a general policy, such as PAM3, a decision-maker is “entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the Migration Act”: see for example Drake v Minister for Immigration and Ethnic Affairs (1979) 406 FLR 409, per Bowen CJ and Deane J; also Minister for Home Affairs v G (2019) 266 FCR 569. Here the decision-maker did not expressly refer to the PAM3 but the decision is consistent with it.
An explanatory statement or memorandum does not supplant the statute. In statutory interpretation, explanatory memoranda have utility only insofar as they assist in elucidating the text of the statute: see, for example, Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 94 ALJR 818 at [66]-[67], per Gageler J.
Neither the terms of PAM3 nor the explanatory statement are essential legal criteria or mandatory considerations. The decision-maker was not obliged to comply with the terms of either but to discharge the task required by the statute.
The ground goes on to claim that the Tribunal “completely ignored” the “critical point” that the applicant and the sponsor were in a long-standing relationship of more than three years. This factually misstates the Tribunal’s reasons. At paragraph [13] of the reasons it said:
The Tribunal acknowledges the length of the relationship between the applicant and sponsor given that they have been married for approximately three and a half years …
At paragraph [14] of the reasons the Tribunal said:
The applicant reiterated on several occasions throughout the hearing that he wants to remain in Australia to be with his wife. The Tribunal is unable to see how the applicant’s preference to remain in Australia to be with his wife, start a family in future and continue his current lifestyle constitutes compelling reasons for it waiving the Schedule 3 criteria.
Counsel for the applicant was a critical of the final sentence of this passage in particular, submitting that it indicates that the Tribunal did not expressly evaluate whether a 3½ year marriage may in itself amount to a compelling reason to waive the criteria. In my view, while that submission is open, the preferable interpretation is that the sentence is an indication that the Tribunal was not subjectively persuaded that the fact of the applicant’s marriage alone was a sufficiently compelling reason to waive the criteria. The passage may also be a reference to part 8.7 of PAM3 (although as noted the Tribunal did not expressly refer to PAM3) which provides specific guidance to a decision-maker that the fact of a marriage or similar relationship should not, as a general rule, be considered compelling reasons for waiver.
Counsel for the applicant also submitted that the Tribunal gave insufficient consideration to the PAM3 policy. Perhaps somewhat inconsistently, the applicant also submitted that the Tribunal gave insufficient consideration to the Department’s Migration and Refugee Division Commentary about Partner visas which said at page 5:
Although decision-makers should have regard to the example set out in PAM3, care should be taken not to apply these inflexibly or to elevate any of these to the level of a legislative requirement.
While the Tribunal did not expressly refer to PAM3 in its decision, it may be assumed that the Tribunal was aware of the policy and had regard to it. There is no indication in the decision that the Tribunal elevated the policy guideline in PAM3 to the level of a legislative requirement. I am not satisfied that the Tribunal gave insufficient consideration to PAM3 or, conversely, elevated it to the level of a legislative requirement.
I am not satisfied the Tribunal failed to consider or ignored that the applicant and sponsor were in a long-term relationship of about 3 ½ years.
However, for the reasons that follow I am satisfied that the Tribunal has not adequately discharged its statutory task of review.
The nature and purpose of the statutory provision is apparent from its terms, elucidated by the explanatory statement. The components of any review will be determined by the statutory provision and the claims made in the particular case.
The object of the provision is to impose “restrictions on unlawful noncitizens who apply on-shore for residence on spouse grounds”: see Clause 10 of the explanatory statement. The purpose is strongly to discourage visa over stayers, such as the applicant, and to ensure that the Partner visa regime is not exploited or manipulated. However, a waiver provision exists if there are “strongly compassionate” grounds. The explanatory statement gives as an example of compassionate grounds the case where there is a long-standing relationship between the applicant and sponsor which has been in existence for two years or longer.
In the ordinary course, it appears that at least two years must pass between an application and the grant of a visa, unless the applicant was in a long-term partner relationship the time of the application: see clause 801.221 (6A) of the Regulations. “Long-term partner relationship” is defined as not less than three years in the case of an applicant and sponsor without children: see clause 1.03 of the Regulations.
If the applicant had applied offshore in February 2017 his relationship with his wife would not have satisfied the definition of “long-term partner relationship” and at least two years would be required to pass before the grant of a visa. If the applicant is now refused a visa and he makes a new application offshore, it appears that the waiting period of at least two years would not apply because he now satisfies the definition of “long-term partner relationship”.
Of course, this assumes that the applicant is able to demonstrate that his relationship with his wife is a “long-term partner relationship”. On this subject, and somewhat curiously, the Tribunal commented, “The Tribunal is not suggesting that the relationship between the couple is not genuine. This is a matter that the Department will determine”. There is no mention in the Tribunal’s reasons of any evidence suggesting that the relationship between the applicant and his wife was other than genuine. On the contrary, there was abundant evidence that the relationship was long-standing and loving, with a mutual commitment to a life together. Whatever the Tribunal meant by its reference to the Department, it was necessary, in my view, having regard to the applicant’s evidence, supported by evidence from his wife, that the Tribunal make a positive finding about the nature of the relationship between the applicant and his wife. Further, it was not enough in the circumstances of this case simply to find that the marriage was genuine (although the Tribunal did not make such a positive finding). It was also necessary to make an assessment of the likely effect of the separation of the applicant and his wife. The wife gave evidence, supported by medical evidence and evidence of her mother and sister, that her anxiety that the applicant may be forced to leave Australia to make an offshore application was adversely affecting her mental health. It is correct, as the Tribunal found, that the wife’s mental health was currently managed with antidepressant medication. However, the wife’s evidence, and that of her sister, went beyond that and expressed plausible fear about the wife’s mental health in the event that the applicant was forced to leave Australia for an indeterminate period in circumstances where it was entirely impracticable for her to follow.
The unchallenged evidence presented by the applicant and his wife was of a long-standing, genuine relationship accompanied by a significant additional factor: unchallenged and plausible evidence that the wife may suffer from significant mental ill health if separated from the applicant. In these circumstances, it was, in my view, necessary for the Tribunal to have regard to the effect on the persons involved of the removal of the applicant from Australia in a real and practical way.
Here, it seems that if the applicant made another visa application offshore he would not be required to wait for at least two years but potentially some lesser time. However, there was no consideration by the Tribunal about how long the applicant would be required to spend in Tonga before the grant of a visa. If, for example, the period the applicant was required to spend in Tonga was a short period then arguably the hardship suffered by the applicant and his wife would be mitigated. On the other hand, it might be thought that if the applicant was required only to be offshore for a short but indeterminate period, then the serious disruption to the lives of the applicant and his wife including marital separation for an indeterminate period, the risk to the wife’s mental health, the wife’s necessity to return to live with her parents and the applicant losing his employment, was a high price to pay to achieve the purpose of the provision.
The Tribunal referred to case law and correctly defined the meaning of “compelling reasons”. The assessment is subjective, although the Tribunal in discharging its statutory task must undertake an active intellectual engagement with the case presented by the applicant. Any subjective assessment of the kind required is a synthesis. The Tribunal need not identify every element of that synthesis and the weight attached to each element or apply a formulaic approach but there must be an evident active intellectual engagement with the matters presented and a real assessment of the likely consequences for the parties involved: see, for example, in a different statutory context, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3].
The Tribunal described its conclusion as follows:
The Tribunal is unable to see how the applicant’s preference to remain in Australia to be with his wife, start a family in the future and continue his current lifestyle constitutes compelling reasons for it waving the Schedule 3 criteria.
In my view, this description does not do justice to the claim that was advanced by the applicant before the Tribunal and which was supported by plausible, unchallenged evidence. At the time of the hearing the applicant and his wife had been married for about 3 ½ years. There was abundant evidence that they shared a loving commitment to a shared life together. The wife said she and the applicant wished to start a family, a significant factor that one might expect to be affected by any prolonged separation between the applicant and his wife.
The applicant had also found employment and was apparently working lawfully in Australia under the terms of his bridging visa. The applicant’s wife had been in steady employment for about 10 years. The wife said that it was not practicable for her to travel to Tonga for an indeterminate period to be with her husband because, by the inference, she would lose her job, her income and her ability to sustain herself and, if necessary, financially support her husband in Tonga. The wife said she would have to move back to live with her parents because she would not be able to afford rental accommodation by herself.
If the applicant now returned to Tonga and made a new application for a Partner visa it appears that he would not be required to wait for a minimum of two years between the application and the grant of a visa because he and his wife have now been married for more than three years. However, whether the actual waiting period between any application and grant of a visa was likely to be a short time or a long time is unknown and was not considered by the Tribunal.
This last point is of some significance because the unchallenged evidence of the applicant’s wife was that she suffered from and was treated for depression and anxiety related to their situation. The wife’s sister said she was worried for her sister’s mental health should the applicant be forced to return to Tonga. There was no indication that this was not a genuine and realistic worry.
The return of the applicant to Tonga is likely to cause real hardship not only for the applicant but also for his wife. Further, his return has potentially serious adverse consequences for his wife’s mental health. In my view, the Tribunal did not adequately, or objectively, describe these circumstances. Of course, the likelihood of hardship, should the criterion not be waived, does not of itself mean that the decision-maker must be, subjectively, satisfied there are compelling reasons to waive the criterion. However, if the statutory task is to be discharged, the matters said to constitute compelling reasons must be properly identified and characterised, and any serious consequences for the persons involved properly described and weighed, before any subjective assessment is undertaken. I am satisfied the Tribunal has not undertaken an active intellectual engagement with the matters put forward by the applicant. I am satisfied that this constitutes jurisdictional error and is material.
This ground succeeds.
Ground 3
This ground alleges that the “Tribunal failed to consider the principle laid down in the case of Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 …” which establishes that circumstances arising after a visa application may be taken into account in deciding whether or not there are compelling reasons to waive the criteria. The applicant asserted that the Tribunal did not take into account the period of the applicant’s marriage occurring after the visa application. The Tribunal expressly referred to Waensila and correctly described the principle in the case. The Tribunal expressly referred to the length of the applicant’s marriage at the time of hearing, that is, some 3 ½ years. This ground fails on a factual level.
Ground 4
The ground described at paragraph 4 of the applicant’s grounds alleges, by reference to a passage from some social research, that the applicant and his wife would be likely to experience distress should they be forced to separate. (The origin of the passage referring to the social research is unclear but the applicant’s submissions suggest that it was referred to in the decision in Waensila. However, I do not see any reference to that passage in that decision.) This ground alleges that the Tribunal did not adequately take this likely distress into account and/or its conclusion was unreasonable, illogical or irrational.
I am not satisfied that the Tribunal’s conclusion was irrational or illogical in the sense that no rational or logical decision-maker could have arrived at it on the same evidence: see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.
The ground also alleges that the Tribunal’s reasoning was illogical or irrational because the Tribunal found that the applicant’s and his wife’s “medical and health conditions was (sic) at best based on pure speculation”. This claim is factually incorrect. The Tribunal accepted that the applicant suffers from diabetes and specifically considered whether treatment would be available to him should he return to Tonga and found that it was.
This ground does not succeed.
Ground 5
This ground alleges that the Tribunal failed to give active intellectual consideration to the merits of the case. For the reasons given in relation to ground 2, I am satisfied this ground is established.
Ground 6 and accompanying grounds in paragraphs 7, 8, and 9,
This ground or these grounds allege that the Tribunal failed to make an obvious inquiry, amounting to jurisdictional error. The inquiry is not expressly identified but would appear to refer to the same claim raised in ground 10 about the applicant’s left ear problem.
Ground 10
This ground alleges that the Tribunal failed to seek evidence of the applicant’s “serious left ear problem …” from the applicant’s wife, despite the Tribunal being told such evidence existed.
The Tribunal noted at paragraph [15] of its reasons that the applicant said he was receiving treatment for hearing loss in his left ear but no evidence had been submitted about that to the Tribunal. The applicant referred to the transcript of hearing at 20:52 – 20:58 where the Tribunal member asked the applicant if he had any paperwork to support his claims about his hearing loss and treatment. The applicant replied that his wife “had the paperwork”. The Tribunal subsequently interviewed the applicant’s wife. The member did not ask her about the paperwork nor did the applicant’s wife offer any paperwork to the member. No paperwork was provided by the applicant to the member after the hearing. The applicant alleged this constituted a failure to make an obvious inquiry.
The Minister submitted that the Tribunal does not have any general duty to make its own inquiries or conduct an inquiry to discover whether the applicant’s case might be better put or be supported by other evidence: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, FCAFC 41 at [36], [49], as varied by Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 44.
Reference should also be made to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [25], where the plurality in the High Court said:
… The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.…
In that case, the High Court said at [26] there was nothing to indicate that further inquiry could have yielded any useful result.
Even if it is accepted that a duty to inquire arose, in this case there was nothing to indicate that further inquiry could have yielded any useful result: see also Hinton v Minister for Immigration and Border Protection [2015] FCA 408, [25]. The applicant did not provide any evidence about what the “paperwork” said or how it may have affected the outcome. There is no evidence that the information was critical or that it was material to the outcome.
This ground does not succeed.
Ground 11
This ground alleges that the Tribunal failed to inquire about or consider obviously relevant material regarding the applicant’s wife’s health, despite mention being made by her of her diagnosed anxiety and depression. It is alleged that the Tribunal failed to enquire as to the availability of appropriate treatment and medication for the sponsor in Tonga, in the event that she joined the applicant there.
This ground is subject to the same considerations as ground 10. The applicant’s wife provided medical evidence that she suffered from depression and anxiety and evidence about her current treatment. The Tribunal accurately summarised that evidence. It was for the applicant to bring forward any further evidence, if it existed, that any necessary treatment was not available in Tonga. As the Full Court noted in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
Further, there was no evidence that the applicant’s wife was likely to move to Tonga and she said to the Tribunal she would not move to Tonga. The applicant himself suggested this was unlikely because of his wife’s need for continuing employment.
This ground does not succeed.
Ground 12
This ground alleges that the applicant would be unable to obtain employment to sustain himself should he return to Tonga and that the Tribunal ignored this and/or was under a duty to inquire further. It is correct that the Tribunal did not discuss the applicant’s employment prospects in Tonga. It appears to have accepted that that he may suffer financial hardship but at paragraph [18] of its reasons the Tribunal found that the applicant’s claim of financial hardship, should he return to Tonga, was not a compelling reason to waive the requirement because he was able to live with his mother and sister in Tonga. The Tribunal was under no obligation to inquire about the applicant’s employment prospects. It was for the applicant to bring forward information to allow the decision-maker to reach the requisite state of satisfaction: see Lay Lat. If, as the applicant’s ground of review alleges, he would not be able to provide himself with food in Tonga or obtain necessary, life-saving medication, it was for him to provide evidence of that to the Tribunal. He did not.
This ground does not succeed.
Ground 13
This ground alleges that the financial hardship likely to be experienced by the applicant and his wife should he be forced to return to Tonga was ignored by the Tribunal and that the Tribunal failed to make obvious inquiries about the, “full extent of both their income and expenditure, and assets and liabilities” of the applicant and his wife.
The Tribunal considered the indebtedness of the applicant’s wife in relation to a personal loan taken out to pay for a cultural wedding ceremony in 2019. It also considered the tenancy agreement of the applicant and his wife at the time of hearing and the obligations under that agreement. That tenancy agreement was due to expire in March 2020. The applicant’s wife said she would not accompany her husband to Tonga if he returned but would remain in Australia to continue her employment for financial stability. She said she would live at her parents’ property.
The Tribunal considered each of the matters advanced by the applicant and his wife in relation to the claimed financial hardship. The Tribunal was under no obligation to inquire further about these matters or to seek further detail. There was nothing to indicate that further enquiry would yield any useful result: see SZIAI; Hinton; Lay Lat.
This ground does not succeed.
Ground 14
This ground alleges that the Tribunal failed to make obvious enquiries or otherwise consider, “the personal and traumatic effect on the Applicant and the Sponsor and their marriage of their separation if the Applicant was forced to return to Tonga but the Sponsor was compelled to remain in Australia due to health and/or financial reasons”.
The substance of this ground repeats the allegation in ground 4 that the Tribunal ignored the likely distress of the applicant and his wife should he be required to return to Tonga and does not succeed for the same reasons.
Ground 15
This ground alleges that in the hearing the Tribunal member failed to,
…make obviously necessary inquiries and/or afford the Applicant a reasonable opportunity to expand upon his potential compelling reasons to remain in Australia, particularly given the applicant’s unrepresented status and his limited capacity to understanding English and the criteria he must establish and present so he would be granted a visa.
This generalised claim does not identify any obvious or necessary inquiry beyond those identified elsewhere by the applicant. There is nothing in the materials or the transcript of the hearing before the Tribunal to indicate that the applicant was unable to bring forward the matters that he considered relevant and it was for him to bring forward any evidence or argument to permit the decision-maker to reach the required level of satisfaction: see Lay Lat.
Ground 16
This ground alleges that the Tribunal member asked the applicant, his wife, and his wife’s mother whether the applicant told them he was in Australia unlawfully. The ground alleges that this state of knowledge was not referred to in the decision as either a point in support of a compelling reason to waive the criterion or a reason not to grant a visa and alleges that the inquiry about and “repeated reference” to the applicant’s unlawful status was thus irrelevant to the Tribunal’s function.
The context in which the applicant was seeking a waiver of the criterion was his unlawful status prior to the grant of a bridging visa. He was seeking to persuade the Tribunal that there were compelling reasons to relieve him of the consequences of not having applied for a visa within 28 days of the expiry of his substantive visa. Any inquiry about these matters is likely to range widely. The fact that the applicant and his wife, at the time she began her relationship with the applicant, were aware that the applicant was in Australia without a visa may be relevant to that question. I am not satisfied it was an irrelevant consideration.
This ground does not succeed.
Ground 17
This ground alleges that the Tribunal member,
… failed to alert, explain, or explain adequately, to the Applicant or the Sponsor that the following adverse points may be factors in the Applicant being denied a visa, thereby unjustly not allowing the Applicant or the Sponsor to understand the effect of their responses, thereby not allowing them to expand and explain further:
a)That insufficient evidence was presented for the Applicant’s hearing loss;
b)That the Sponsor’s anxiety and depression was manageable;
c)That the Applicant’s financial hardship was not compelling just because he could live with his mother and sister in Tonga;
d)That their future plans were insufficient to be compelling.
This ground appears to refer to s 359AA of the Act which requires the Tribunal to give an applicant clear particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. “Information” for this purpose does not include the existence of doubts, inconsistencies or the absence of evidence. It does not include the Tribunal’s subjective appraisals, thought processes or determinations or identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal and weighing up the evidence: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549, [24].
This ground does not succeed.
Ground 18
This ground alleges that
… the hearing was conducted in just one hour and twenty-six minutes. Allowing for the fact that this time included introductory statements, and that the principal examination of the Applicant required lengthy duplicative translations this was insufficient time to conduct a fair and proper hearing. The [member] demonstrated actual or apprehended impatience (sic) and bias in his conduct of the hearing by:
a)Only making perfunctory enquiries, if any, of those elements supporting compelling reasons to allow a visa being granted as referred to above;
b)Focusing on the irrelevant point referred to in paragraph 16: and
c)Focusing narrowly and excessively upon those adverse points subsequently relied upon to deny the visa in the decision handed down at just 8.56 am the next day.
The member spent one hour interviewing the applicant with an interpreter. After brief preliminaries, the member began the interview by explaining to the applicant that he was looking to find compelling evidence why the applicant could not return to Tonga. He asked if the applicant and his wife had any children. He asked if the applicant had any health issues. The applicant replied that he suffered from diabetes and there was discussion of what treatment the applicant was receiving for that condition. The applicant also mentioned that a procedure had been performed on his left ear to improve his hearing. The member asked the applicant whether his wife had any health issues. The applicant said that up his wife had suffered from some mental health problems and explained that this was anxiety and depression. He said this was treated with medication and there was some brief discussion of treatment by the wife’s general practitioner. The member asked the applicant if his diabetes was controlled. The applicant suggested that insulin may not be available in Tonga. A discussion about that followed and the applicant said that both his mother and sister suffered from diabetes and were treated with insulin in Tonga. The member asked the applicant if there were any other relevant health issues concerning his wife.
The member discussed with the applicant the timeline of his arrival in Australia, the expiry of his visa and his overstaying. The member confirmed that the applicant and his wife had been married in 2016. He discussed with the applicant the making of his Partner visa application. The member asked the applicant when and how he and his wife had met. The applicant explained they had met through social media and family. The member asked the applicant if his wife knew he was in Australia without a visa. The applicant said she was aware of that from the time they began a relationship.
The member asked the applicant about the length of his marriage. He asked the applicant about his employment, where and by whom he was employed and his wage. He asked the applicant how he had supported himself before he found employment and the applicant responded that he had relied on family members in Australia. The member asked about the applicant’s wife’s employment, the length of her employment with that employer and her wage. The member discussed with the applicant the personal loan the applicant’s wife had taken out to pay for a cultural wedding ceremony and their consequent indebtedness.
The applicant asserted that he would not find employment in Tonga. The member asked where he would stay if he returned to Tonga and the applicant said that he would stay with his mother and younger sister. The member asked if the applicant’s wife would accompany him to Tonga. The applicant replied that his wife would not be happy in Tonga and she would lose her employment.
The member asked if there were any other reasons why the applicant could not return to Tonga and go through the offshore process for a Partner visa application. The applicant said that if he were required to return to Tonga it would cause a strain in the relationship with his wife. He said his future plan was to stay in Australia. The member asked if there was anything else the applicant wished to say. The interview with the applicant then concluded.
The member interviewed the applicant’s wife. Similar subjects to those discussed with the applicant were covered. Said she would not move to Tonga because she would need to continue working to support the applicant while they waited for the visa application to be considered. She talked about her anxiety about the current situation and said that she and the applicant depended upon each other. She said she and the applicant had been together so long that she could not imagine her life without him. She said she wished to have children and start a family with the applicant.
The member also interviewed the applicant’s mother-in-law who spoke about the genuine and close relationship between the applicant and her daughter and her concerns about her daughter’s mental health should her daughter and son-in-law be forced to separate.
On reading the transcript of the interview, I do not have the impression that the member exhibited impatience or hurried the interviewees. I do not have any impression that the questions asked by the member were perfunctory. The member did not focus on the applicant’s visa overstaying and the discussion about that took relatively little time, about two minutes of the total. The member did not focus excessively on adverse points.
I am not satisfied that due to the length of the interviews or for any other reason the applicant did not have a proper opportunity to present relevant material or that the interviews were in any way unfair.
This ground does not succeed.
Grounds 19 and 20
These grounds are catch-all grounds and generally allege that because of the above-mentioned grounds the Tribunal did not act in a fair and just manner, contrary to s 357A of the Act, and committed jurisdictional error.
These grounds do not succeed.
Conclusion
As grounds 2 and 5 succeed, the application is allowed.
The first respondent is to pay the applicant’s costs in the sum appearing in Schedule 2, Part 2, Division 1, Item 3 of the Rules, $7,853.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 23 November 2022
0
17
2