Zhang v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 490
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 490
File number(s): PEG 358 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 22 June 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – citizen of the People’s Republic of China – whether failure to consider circumstances cumulatively when applying criteria – whether conclusions made that were not open on the evidence – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 65, 140, 474, 476
Migration Regulations 1994 (Cth) Sch 2, cl 820.211, Sch 3, cll 3001, 3003, 3004
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285
BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114; (2019) 77 AAR 253
Buchwald v Minister for Immigration [2016] FCA 101; (2016) 242 FCR 65
BWC15 v Minister for Immigration and Border Protection [2017] FCA 199
Choi v Minister for Immigration and Border Protection [2018] FCA 291
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
D’Amore v Independent Commission Against Corruption [2012] NSWSC 473
GKX18 v Minister for Home Affairs & Anor [2019] FCCA 2028
Liu v Minister for Immigration and Border Protection [2015] FCA 1368
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
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
Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115; (2010) 117 ALD 259
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALJR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13; (2021) 395 ALR 403
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Home Affairs and Another [2020] FCAFC 7; (2020) 274 FCR 506
Singh v Minister for Immigration & Anor [2020] FCCA 3245
SZUDO v Minister for Immigration and Border Protection [2018] FCA 194
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission/s: 27 October 2021 Date of hearing: 27 October 2021 Place: Perth Counsel for the Applicant: Mr R. S. Jahnke Solicitor for the Applicant: Estrin Saul Counsel for the First Respondent: Ms G. Ellis Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 358 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUMEI ZHANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
22 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 30 November 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The applicant, Ms Shumei Zhang (“Ms Zhang”), filed an application for judicial review on 30 November 2020 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application is made in respect of a decision of the Administrative Appeals Tribunal handed down 27 October 2020 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively), of the then Minister for Home Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant Ms Zhang a Partner (Temporary) (Class UK) visa (“Partner Visa”).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 230 pages (“Exhibit 1”);
(b)the affidavit of Reuben Saul Jahnke affirmed 30 November 2020, annexing the Tribunal Decision;
(c)Ms Zhang’s written submissions filed 1 October 2021 (“Ms Zhang’s Submissions”);
(d)the Minister’s written submissions filed 15 October 2021 (“Minister’s Submissions”); and
(e)the transcript of the hearing on 27 October 2021 (“Transcript”).
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)Ms Zhang is a citizen of the People’s Republic of China (“China”): CB 3, who arrived in Australia in May 2014 as the dependant/spouse of her then-husband Mr Xiaojing Liu (“Mr Liu”), the holder of a Temporary Work (Skilled) (Subclass 457) visa (“Mr Liu’s 457 Visa”): CB 157;
(b)in or around September 2014 Ms Zhang separated from Mr Liu: CB 224 at [25];
(c)on 26 May 2016, allegedly unbeknown to Ms Zhang, Mr Liu lodged a further Temporary Work (Skilled) (Subclass 457) visa application (“May 2016 457 Visa Application”) which included Ms Zhang as his dependent/spouse, even though they were separated: CB 157;
(d)on 10 June 2016 Ms Zhang met the sponsor of her current Partner Visa application, Mr Mladen Naumoski (“Mr Naumoski”): CB 116-117;
(e)on 9 October 2016 Ms Zhang and Mr Naumoski made a mutual commitment to a shared life together to the exclusion of all others: CB 71;
(f)on 29 June 2017 Mr Liu’s 457 Visa was cancelled, and as a consequence, Ms Zhang’s 457 Visa was also cancelled: CB 157;
(g)on 16 September 2017 Ms Zhang and Mr Liu’s divorce was finalised: CB 118;
(h)on 3 November 2017 Ms Zhang and Mr Naumoski married: CB 118-119;
(i)on 17 November 2017 the May 2016 457 Visa Application was refused: CB 157;
(j)prior to its cancellation, Ms Zhang’s 457 Visa was due to expire on 25 March 2018: CB 157. Ms Zhang claims to have been unaware of the cancellation of Mr Liu’s 457 Visa: CB 125-126;
(k)on 20 March 2018 Ms Zhang applied for the Partner Visa: CB 1-30;
(l)on 22 March 2019 the Delegate refused to grant Ms Zhang the Partner Visa, finding that she did not meet cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), which required her to satisfy the public interest criteria in cll 3001, 3003 and 3004 of Sch 3 to the Migration Regulations (“Schedule 3 Criteria” and “Criterion 3001”, “Criterion 3003” and “Criterion 3004” respectively): CB 161 at [5]. The Delegate was also not satisfied that there were compelling reasons not to apply the Schedule 3 Criteria: CB 302 at [40];
(m)on 4 April 2019 Ms Zhang made an application to the Tribunal for review of the Delegate’s Decision: CB 203-205;
(n)on 8 June 2020 Ms Zhang attended a Tribunal hearing (“Tribunal Hearing”): CB 217; and
(o)on 27 October 2020 the Tribunal Decision was to affirm the Delegate’s Decision not to grant Ms Zhang a Partner Visa: CB 221-227.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)recorded that it had explained to the parties that the Delegate had not made an assessment of whether Ms Zhang met the Schedule 3 Criteria to be considered the genuine spouse or de facto partner of Mr Naumoski and that the Tribunal would restrict its review to the issue decided by the Delegate: CB 223 at [11];
(b)recorded Ms Zhang’s and Mr Naumoski’s evidence on why they considered that there were compelling reasons not to apply the Schedule 3 Criteria: CB 223 at [12]-[14];
(c)recorded that it was not in dispute that Ms Zhang did not have a substantive visa at the time of the Partner Visa application: CB 223 at [17];
(d)found that Ms Zhang last held a substantive visa on 29 June 2017 when Mr Liu’s 457 Visa was cancelled and this was the “relevant day” as defined in Criterion 3001(2);
(e)found that Ms Zhang’s Partner Visa application was lodged on 21 March 2018, which was more than 28 days after the relevant day, meaning that Ms Zhang did not satisfy Criterion 3001: CB 224 at [19]-[21];
(f)found that Ms Zhang did not meet the relevant Schedule 3 Criteria, and it was therefore required to consider whether there were compelling reasons for not applying the Schedule 3 Criteria: CB 224 at [22];
(g)considered Ms Zhang’s explanation for not holding a substantive visa, including the separation from Mr Liu and her claimed ignorance of Mr Liu’s 457 Visa cancellation: CB 224 at [25], but found that these were not compelling reasons to waive the Schedule 3 Criteria;
(h)recorded that Ms Zhang had not made any reasonable attempts to discuss her situation with the Department, or to regularise her status once she was no longer the dependent or spouse of the 457 Visa holder (Mr Liu): CB 224 at [26];
(i)recorded that information was available on the Department’s website in Mandarin and the Department made use of interpreter services so that immigration information was available in several forms in a wide range of languages: CB 224 at [26];
(j)was not satisfied that the duration of Ms Zhang and Mr Naumoski’s relationship or the involvement of Mr Naumoski’s children in the relationship were compelling reasons to waive the Schedule 3 Criteria in circumstances where:
(i)Ms Zhang and Mr Naumoski had been married in November 2017;
(ii)Mr Naumoski’s youngest child was 19 years old;
(iii)Mr Naumoski’s children did not live with Ms Zhang and Mr Naumoski;
(iv)Mr Naumoski talked with his children a few times a week on the telephone; and
(v)Mr Naumoski no longer had a child support obligation for his children: CB 225 at [28]-[29];
(k)acknowledged Ms Zhang and Mr Naumoski’s preference to remain in Australia together while the Partner Visa application was processed, and that they may suffer some distress if Ms Zhang was required to go offshore to make the Partner Visa application, but found that the distress they might suffer was no more than that experienced by many couples who meet, fall in love and commit to each other and are then required to be apart while they get their affairs sorted out. The Tribunal considered that parties in a relationship who were required to be apart routinely maintained their relationship, personal contact and communication by telephone and electronic media: CB 225 at [30], and was therefore not satisfied that any emotional distress that Ms Zhang and Mr Naumoski might experience if separated was a compelling reason to waive the Schedule 3 Criteria: CB 225 at [31];
(l)acknowledged that Ms Zhang and Mr Naumoski might suffer some financial hardship if Ms Zhang was required to go offshore, but noted that:
(i)there was no requirement for Mr Naumoski to leave Australia, in circumstances where leaving Australia would result in him losing his employment;
(ii)his children were adults and he no longer had a child support obligation for them; and
(iii)Ms Zhang was not employed in Australia: CB 225 at [32];
(m)acknowledged it was likely Mr Naumoski would be required to make some financial adjustments if he was to support Ms Zhang financially while she was offshore, but it was not satisfied the financial adjustments the parties would need to make were a compelling reason to waive the Schedule 3 Criteria: CB 225 at [33];
(n)acknowledged Ms Zhang’s claim she may suffer some embarrassment returning to see her family in China having been divorced, but found that Ms Zhang was now remarried and “her presence with her family would presumably be a short-term arrangement pending processing of her Partner visa application”: CB 225 at [34];
(o)was not satisfied the embarrassment Ms Zhang would suffer was a compelling reason to waive the Schedule 3 Criteria: CB 225 at [34]-[35];
(p)recorded that it had considered Ms Zhang’s reasons to waive the Schedule 3 Criteria individually and cumulatively: CB 225 at [36], and was not satisfied that compelling reasons existed not to apply them: CB 225 at [37]; and
(q)found that Ms Zhang did not meet cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations, and therefore affirmed the Delegate’s Decision: CB 225 at [37]-[39].
LEGISLATIVE SCHEME
The relevant criteria, set out at cl 820.211(2) of Sch 2 to the Migration Regulations are as follows:
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
…
(c) the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii)if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa—either:
(i) ….
(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.
Of the Schedule 3 Criteria, only Criterion 3001 is relevant and it provides as follows:
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i)the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.
JUDICIAL REVIEW APPLICATION
Grounds
The Judicial Review Application contains two grounds which are set out below at [13] (ground 1) and [30] (ground 2).
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance 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, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: 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.
An instance where the Tribunal has made findings that are legally illogical, irrational and otherwise unreasonable may amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “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.”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J; SZMDS at [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths and Rangiah JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Ms Zhang to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (“VAAD”) at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 (“Maroun”).
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine Ms Zhang’s claim for a Partner Visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1.The Administrative Appeals Tribunal (Tribunal) failed to properly consider or have regard to all of the circumstances in determining whether the matters raised by the Applicant, considered cumulatively, amounted to compelling reasons to not apply criteria 3001, 3003 and 3004 of Schedule 3 of the Migration Regulations 1994 (Cth) (Schedule 3 criteria).
Particulars
a.Clause 820.211(2)(d)(ii) requires the Tribunal to consider whether there are ‘compelling reasons’ for not applying the Schedule 3 criteria.
b.Clause 820.211(2)(d)(ii) requires a cumulative assessment of the matters relied upon by the Applicant: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, per Bromberg J at [12].
c.Despite the Tribunal’s generally expressed comment at paragraph [35] (sic [36]) that it ‘considered the applicant’s reasons to waive the Schedule 3 requirement individually and cumulatively’, the decision record is bereft of any consideration as to why the individual factors discussed by the Tribunal did not cumulatively give rise to ‘compelling reasons’.
d.In doing so, the Tribunal fell into jurisdictional error by failing to properly consider whether collectively the Applicant’s overall circumstances amounted to ‘compelling reasons’.
Ms Zhang’s Submissions
Ms Zhang’s Submissions in relation to ground 1 are as follows:
(a)it was clear on the facts that Ms Zhang did not meet the Schedule 3 Criteria, as she was unable to satisfy Criterion 3001: CB 224, but the Tribunal Decision to affirm the Delegate’s Decision turned on its assessment of whether there were “compelling reasons” to not apply the Schedule 3 Criteria;
(b)the Tribunal noted that the term “compelling reasons” is not defined for the purposes of the Schedule 3 Criteria, but stated that the reasons must be “sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 (“MZYPZ”) at [10] per Bromberg J and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [24] per Tamberlin, Conti and Jacobson JJ (“Babicci”): CB 224 at [23];
(c)in MZYPZ at [12] per Bromberg J the Federal Court determined that decision-makers must turn their mind to the circumstances as a whole when determining whether there are compelling reasons for not applying the Schedule 3 Criteria, observing as follows (emphasis in Ms Zhang’s Submissions):
In the evaluative judgment to be made [in relation to the Schedule 3 Criteria], the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
(d)when the Tribunal is turning its mind to the circumstances, as a whole, the Federal Court in MZYPZ at [19] per Bromberg J held that the Tribunal must engage in “an active intellectual process” and give genuine consideration to the issues raised, observing as follows at [19]-[20] per Bromberg J (emphasis in Ms Zhang’s Submissions):
[19] In my view, the process required by the clause entails a duty to consider whether compelling reasons exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the Tribunal was bound to take into account. To comply with the duty conferred, the Tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives [the Tribunal’s] genuine consideration”: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [57] (Stone, Foster and Nicholas JJ), citing Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462 (Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (Gleeson CJ and Gummow J).
[20] In Tickner, Burchett J stated at 476 that to “consider” required the decision-maker to apply “his own mind to the issues raised”. The decision-maker may be assisted by others to collect the relevant facts but it is the decision-maker’s task to “evaluate” them. Whilst an administrative decision-maker must exercise his or her own judgment, not every step in the decision-making process must be personally done by him or her. Reliance may be placed on facts found by others (such as advisers to a Minister), provided that the decision-maker acts on the basis of an accurate summary of the relevant evidence and submissions upon which the facts have been found: Asiamet (No 1) Resources Pty Ltd v Commissioner of Taxation [2003] FCA 35; (2003) 126 FCR 304 at [116] (Emmett J) approved on appeal Commissioner of Taxation (Cth) v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73; (2004) 137 FCR 146 at [217]- [218] (Allsop J, with whom Ryan and Finkelstein JJ agreed).
(e)in the present matter, the Tribunal turned its mind to the individual circumstances that Ms Zhang put forward as compelling and engaged in an active intellectual process to determine that it was not satisfied that these circumstances, when considered on their own, were compelling: CB 224 at [25]-[27] and 225 at [28]-[29] and [30]-[35];
(f)the ultimate question put forward in MZYPZ is whether these circumstances as a whole compel the Tribunal to exercise the discretion with which it is conferred. This is the question that the Tribunal should have turned its mind to and in relation to which it ought to have engaged in an active intellectual process;
(g)the Tribunal’s only reference to Ms Zhang’s cumulative circumstances can be found at [36] of the Tribunal Decision: “The Tribunal has considered Ms Zhang's reasons to waive the Schedule 3 requirement individually and cumulatively”: CB 225 at [36];
(h)the cumulative analysis that the Tribunal states it undertook is not reflected elsewhere in the Tribunal Decision. In fact, a cumulative analysis of Ms Zhang’s circumstances as a whole is absent from the Tribunal Decision. Put simply, the Tribunal failed to properly and intellectually engage with the question of whether the circumstances presented, as a whole, compelled the Tribunal to exercise its discretion; and
(i)as the Tribunal did not turn its mind to the ultimate question (as described in MZYPZ), the Tribunal therefore misapplied the test set out in cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations.
Minister’s Submissions
In relation to ground 1 the Minister submitted that:
(a)the Tribunal considered the factors individually, and provided cogent reasons as to why none of them amounted to compelling reasons for waiving the Schedule 3 Criteria;
(b)no case was made before or put to the Tribunal to indicate that there was an interaction between the factors that would call for specific comments in the Tribunal Decision;
(c)the Tribunal expressly stated that it had considered the factors “individually and cumulatively”; and
(d)an in-depth analysis of the cumulative force of Ms Zhang’s reasons for waiver was not required and the Tribunal properly discharged its duty.
Consideration – ground 1
The Tribunal Decision should not be read in a search for error or an attempt to discern some inadequacy: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [87] per McClennan CJ at CL. And brevity of reasoning alone does not amount to jurisdictional error: Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115; (2010) 117 ALD 259 at [91] per Rares J.
MZYPZ is primarily cited as authority for the proposition at [10] per Bromberg J that the reasons must be sufficiently convincing to move the decision-maker to exercise discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria (see too Babicci at [24] per Tamberlin, Conti and Jacobson JJ): Singh v Minister for Home Affairs and Another [2020] FCAFC 7; (2020) 274 FCR 506 (“Singh – FCAFC 2020”) at [27] per Derrington J; SZUDO v Minister for Immigration and Border Protection [2018] FCA 194 (“SZUDO”) at [8] per Logan J. In Singh – FCAFC 2020 at [73] per Derrington J it was said that the real question is whether “the relevant state of mind has been achieved, namely satisfaction of the evidence of “compelling reasons” for not applying the Sch. 3 criteria”. In BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114; (2019) 77 AAR 253 (“BIL17”) at [61] per Griffiths, Gleeson and Colvin JJ the Full Court of the Federal Court said that the question to be asked is “whether, on the available materials and a proper consideration of the reasons (that is, with an eye that is not attuned to the discovery of error) there has been a performance of the statutory task of undertaking a review, by reference to the available evidence, of the merits of the claims made by the appellants before the Tribunal”.
A careful reading of MZYPZ at [12] per Bromberg J also demonstrates that the Federal Court was not there suggesting that an active intellectual engagement or process for the purposes of cumulative consideration of relevant matters required a separate “rolled up” consideration of all the relevant matters. Rather, it is said that a single circumstance or a multitude of circumstances might be considered, and ultimately the question is whether the circumstances as a whole compel the exercise of the discretion conferred. Nowhere is it suggested that consideration of this question requires further detailed consideration of each of the matters already considered as part of a decision-maker’s consideration. Indeed, the Federal Court in MZYPZ at [13] per Bromberg J went on to simply say, in familiar terms, that “[t]he decision-maker needs to be “satisfied” that compelling reasons exist”. In Liu v Minister for Immigration and Border Protection [2015] FCA 1368 (“Liu”) the Federal Court, having cited MZYPZ: Liu at [38] per Markovic J, went on at [39] to observe that “the decision-maker needs to be satisfied that compelling reasons exist. The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria”.
MZYPZ must also be considered in light of its particular facts. In MZYPZ the then Migration Review Tribunal was found to have failed to consider for itself a claim as to the applicant’s safety, and to have instead relied upon an earlier rejection of those claims by the then Refugee Review Tribunal: MZYPZ at [26] per Bromberg J, and it was the consequent failure to “consider and evaluate for itself” the risk to the applicant’s safety that amounted to a failure to consider whether compelling reasons existed, and which therefore constituted jurisdictional error: MZYPZ at [30] per Bromberg J. It was thus a failure to engage with a specific matter that constituted the error in MZYPZ, and not a failure to undertake a “rolled up” or collective consideration of all matters, which is what is posited in this case to be the error relied upon by Ms Zhang.
In SZUDO, MZYPZ was distinguished on the basis that the Tribunal in SZUDO, unlike the Refugee Review Tribunal in MZYPZ, undertook “an act of engagement … with the particular merits” of the case: SZUDO at [14] per Logan J. In Choi v Minister for Immigration and Border Protection [2018] FCA 291 (“Choi”) at [17] per Allsop CJ, the Federal Court considered that in MZYPZ the Refugee Review Tribunal “did not re-engage with the material at all”.
In dismissing the appeal in Choi the Federal Court observed that the Tribunal’s detailed consideration of the circumstances may have resulted in an aspect of the applicant’s claim being subsumed in a broader consideration of a related matter: at [18] per Allsop CJ. The Federal Court went on to observe that whilst that approach “may not have been the most preferable, it was not unreasonable” and “[n]or does it mean that the assessment was cursory or non-existent” and that the manner in which the Tribunal dealt with and evaluated the circumstances could to “a great extent … be explained by how each of the claimed circumstances were put to the Tribunal in submissions”: Choi at [19] per Allsop CJ.
In Singh v Minister for Immigration & Anor [2020] FCCA 3245 (“Singh – FCCA 2020”) this Court (then styled as the Federal Circuit Court of Australia) was confronted with a Tribunal’s similarly worded findings about the cumulative consideration of reasons relating to not being satisfied that there were compelling reasons for not applying the Schedule 3 Criteria: Singh – FCCA 2020 at [59] per Judge Reithmuller. In Singh – FCCA 2020 at [64]-[65] per Judge Reithmuller, the Court said as follows:
64.Unlike the circumstances in both ATT20 and Daneshpour, it is not put in this case that there were facts or circumstances overlooked by the Tribunal member. Nor was it specifically put to the Tribunal member that the various factors combined or compounded in a specific way that would require further reasons beyond that set out in paragraph [64], as quoted above.
65.Ultimately the question is whether, on viewing the decision as a whole, there is a basis for drawing the inference that the decision maker did not consider the reasons given by the applicant ‘as a whole’ (sometimes expressed as being in ‘totality’ or ‘cumulatively’). The statement of the decision maker in paragraph [64] of the decision tells strongly against the argument of the applicant. Whilst the large number of findings as to specific matters indicate a focus upon the minutia of the various incidents of the applicant and his sponsor’s circumstances, the statement at paragraph [47] of the decision also shows an awareness and consideration of the need to consider not simply individual parts of the claim, but those parts cumulatively. It is not put that there was an interaction between the various matters that would call for specific comments in the reasons (nor were submissions made in this regard to the member). Ultimately I am not persuaded that the applicant has established that the member failed to carry out the task in the way that the member set out in paragraph [64] of the decision.
In the Tribunal Decision, the Tribunal expressly stated that it had considered Ms Zhang’s reasons to waive the Schedule 3 requirement “individually and cumulatively”: CB 225 at [36]. The question is whether this is, in all of the circumstances, a sufficient undertaking of the statutory task of review: Migration Act, s 65.
It is apparent that the Tribunal set out and understood the relevant test from MZYPZ at [10] per Bromberg J: CB 224 at [23].
The Tribunal examined the individual factors raised by Ms Zhang, and considered:
(a)the circumstances around her not holding a visa: CB 224 at [26];
(b)the aspects of Ms Zhang’s relationship with Mr Naumoski: CB 225 at [29];
(c)the emotional distress of being separated: CB 225 at [31];
(d)the potential financial hardship: CB 225 at [32]; and
(e)the embarrassment Ms Zhang might suffer because of her divorce: CB 225 at [34].
In relation to each of the individual factors, the Tribunal found, after proper consideration, that it was not satisfied that any of them were compelling reasons to waive the Schedule 3 Criteria. In acknowledging the potential difficulties that Ms Zhang and Mr Naumoski might face, the Tribunal provided clear explanations as to how it considered they might overcome these difficulties and why none of them amounted to a compelling reason to waive the Schedule 3 Criteria. Furthermore, it is apparent that the Tribunal did not accept the reasons for waiver put forward by Ms Zhang. The Tribunal found, as did the Delegate, that Ms Zhang’s separation from Mr Liu and her alleged ignorance of Mr Liu’s 457 Visa cancellation: CB 224 at [25], were insufficient explanations for her breach. The Tribunal was critical of Ms Zhang for having not made any reasonable attempts to discuss her situation with the Department or to regularise her status: CB 224 at [26]. In those circumstances, it was reasonable for the Tribunal to conclude that, cumulatively, the factors put forward by Ms Zhang did not amount to compelling reasons to warrant waiver of the Schedule 3 Criteria, and in so doing, the Tribunal actively engaged in a non-cursory way with the matters put forward by Ms Zhang as compelling reasons: SZUDO at [14] per Logan J; Choi at [17]-[19] per Allsop CJ. For the reasons set out above, and in Singh – FCCA 2020 at [64]-[65] per Judge Reithmuller particularly, it was not necessary for the Tribunal to engage in a cumulative re-assessment of each of the factors in the manner suggested in and by Ms Zhang’s Submissions and her oral submissions.
The Tribunal’s assessment of the cumulative factors was also responsive to the way Ms Zhang put forward the issue to the Tribunal. Ms Zhang did not specifically put to the Tribunal that the individual factors combined or compounded in a specific way that would require further consideration and findings beyond that which was ultimately done, and it was not necessary in those circumstances for the Tribunal to consider the nature of its cumulative consideration in a manner other than that which it undertook at CB 225 at [36], considered in the light of the remainder of the Tribunal’s reasons and its evident understanding of the test to be applied: Choi at [19] per Allsop CJ; Singh – FCCA 2020 at [64]-[65] per Judge Reithmuller.
The Tribunal Decision shows that the Tribunal was not satisfied that any of the claims, as individually raised, gave rise to a compelling reason, it did not accept Ms Zhang’s explanation for the breach and found that there were effective means by which the parties could overcome any difficulties arising from separation. In these circumstances, an in-depth analysis of the cumulative force of Ms Zhang’s reasons for waiver was not required. The Tribunal Decision at CB 224 at [10] and 225 at [36] shows an awareness of the relevant test, and consideration of the need to consider not simply individual parts of the claim, but those parts cumulatively. In circumstances where it is evident that the Tribunal has thoroughly considered the reasons individually, the reasons themselves do not reveal some obvious manner in which together they may compound, and the matter has not been put before the Tribunal in a way such as to suggest that the individual reasons do have some greater cumulative effect, the statement by the Tribunal that “[t]he Tribunal has considered the applicant’s reasons to waive the Schedule 3 requirement individually and cumulatively” ought not be disbelieved: Choi at [19] per Allsop CJ. It follows that the Tribunal achieved the relevant state of mind as to, in this case, satisfaction as to the evidence in support of the “compelling reasons” for not applying the Schedule 3 Criteria: Singh – FCAFC 2020 at [73] per Derrington J; Babicci at [24] per Tamberlin, Conti and Jacobson JJ; MZYPZ at [10] per Bromberg J; Liu at [39] per Markovic J. This is a case where the Tribunal understood and undertook the statutory task of review as it was required to do: BIL17 at [61] per Griffiths, Gleeson and Colvin JJ, without error.
For the reasons set out at [16]-[28] above, Court finds that ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2.The Tribunal made conclusions that were not open to it on the evidence.
Particulars
a.The Tribunal did not consider ‘the circumstances surrounding the applicant not holding a substantive visa to be compelling reasons to waive the Schedule 3 criteria’ because, amongst other things, there was ‘[i]nformation is available on the Department’s website in Mandarin and the Department make use of interpreter services so that immigration information is available in several forms in a wide range of languages.’
b.However, there was no reliable evidence before the Tribunal to support the finding that there was information relevant to the Applicant’s circumstances in the Mandarin language on the Department’s website during the relevant period of time (i.e. between 30 June 2017 and 21 March 2018).
c. Additionally, the Tribunal considered the Applicant’s claim that ‘she may suffer some embarrassment returning to see her family in China having become divorced’ but found that ‘her presence with her family [in China] would presumably be a short-term arrangement pending processing of her Partner visa application.’
d.However, there was no reliable evidence before the Tribunal to support the finding that waiting outside Australia during an offshore Partner visa application would be a ‘short-term arrangement’.
Ms Zhang’s Submissions
Ms Zhang’s Submissions in relation to ground 2 are as follows:
(a)the Tribunal found that it did not consider “the circumstances surrounding Ms Zhang not holding a substantive visa to be compelling reasons to waive the Schedule 3 criteria”: CB 224 at [26];
(b)two central aspects of the Tribunal’s reasoning that Ms Zhang’s circumstances were not compelling were that:
(i)there was “[i]nformation […] available on the Department’s website in Mandarin and the Department make use of interpreter services so that immigration information is available in several forms in a wide range of languages”: CB 224 at [26]; and
(ii)despite the claim that “she may suffer some embarrassment returning to see her family in China having become divorced … her presence with her family [in China] would presumably be a short-term arrangement pending processing of her Partner visa application”: CB 225 at [34];
(c)these findings were, in reality (and at best), assumptions unsupported by any evidence. It follows that it was not open to the Tribunal to conclude on the evidence (because the evidence before the Tribunal did not provide any basis to find) that there were no compelling reasons for not applying the Schedule 3 Criteria;
(d)had the Tribunal not made these findings, there is a real possibility that the conclusion that Ms Zhang’s circumstances were not compelling could not – on the evidence – be sustained. These findings therefore formed a critical step in the Tribunal’s ultimate conclusion that there were no compelling reasons for not applying the Schedule 3 Criteria;
(e)a finding without evidence can amount to a jurisdictional error if the finding concerns a jurisdictional fact: Buchwald v Minister for Immigration [2016] FCA 101; (2016) 242 FCR 65 at [39] per Bromberg J. In the present case, the relevant jurisdictional fact is the Tribunal’s “state of satisfaction” that the relevant visa criteria are met: SZMDS at [20] per Gummow ACJ and Kiefel J;
(f)the Tribunal’s findings that there was “[i]nformation is available on the Department’s website in Mandarin”: CB 224 at [26], and that Ms Zhang’s “presence with her family [in China] would presumably be a short-term arrangement pending processing of her Partner visa application”: CB 225 at [34], were “findings” as to the “satisfaction” of the criteria in s 65 of the Migration Act; and
(g)these findings of fact (made with no evidence) concern a jurisdictional fact and, as such, the Tribunal Decision is vitiated by jurisdictional error.
Minister’s Submissions
The Minister’s Submissions in relation to ground 2 are as follows:
(a)the Tribunal’s findings with respect to information on the Department’s website in Mandarin and the Department making use of interpreter services were a clear reference to the Delegate’s factual findings at CB 160 where it recorded (in the context of finding that it was Ms Zhang’s responsibility to maintain lawful status in Australia and to inform the Department that her relationship with Mr Liu had ended):
There are various avenues available to you, such as the Visa Entitlement Verification Online system (VEVO) is accessible for visa holders to check their visa status and condition at any time. You could have access [sic] VEVO to check your immigration status, as you have explained you did in your Partner visa application comments. In addition, there is the Translating and Interpreting Services (TIS), and our Departmental website information in your language. You could have taken any of these steps to understand, check or resolve your immigration status prior to your lodgement of the Partner visa application.
(b)there was therefore no error in the Tribunal concluding as it did at CB 224 at [26], by relying on factual findings in the Delegate’s Decision that information was available on the Department’s website in Mandarin and the Department made use of interpreter services so that immigration information was available in several forms in a wide range of languages;
(c)this is particularly so in circumstances where Ms Zhang did not take issue with the factual findings in the Delegate’s Decision in any way during the Tribunal review. Indeed, Ms Zhang provided the Delegate’s Decision to the Tribunal with her review application: CB 204. When the Court engages in judicial review it must consider the Tribunal Decision “in the light of the basis upon which the application [to the Tribunal] was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 at [1] per Gleeson CJ;
(d)the Tribunal is also entitled to rely on its own knowledge and experience so long as it has been put to Ms Zhang for comment: NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927. The fact that these factual findings were in the Delegate’s Decision meant that they were put to Ms Zhang and she had sufficient notice to be able to dispute them if she desired to, but she did not do so;
(e)Ms Zhang’s complaint that there was no reliable evidence to support the Tribunal’s finding that waiting outside Australia during an offshore Partner visa application would be a “short-term arrangement” misconstrues the finding. The Tribunal was not making a finding about the length of time Ms Zhang would be required to spend offshore awaiting the determination of her visa application, but rather it was a finding that, based on the parties’ evidence, Ms Zhang’s intention was to live in Australia with Mr Naumoski for the “long-term” such that any time offshore would necessarily have been for the “short-term”; and
(f)in the alternative to (e) above, in making the factual finding that it would only be a short-term arrangement, the Tribunal relied upon evidence from Ms Zhang’s own submissions, wherein she provided the estimate that the time it would take to process a Partner Visa application from offshore would be 14-19 months: CB 126, and it would not be unreasonable for the Tribunal to use Ms Zhang’s own estimate to draw the conclusion that the length of time would be short-term.
Consideration – ground 2
Ground 2 asserts that there was “no reliable evidence” of the two factual matters challenged by ground 2. In submissions this became an argument that there was no evidence of the two factual matters challenged.
In order to succeed on a no evidence ground, Ms Zhang must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137, CLR at 356 per Mason CJ. Even “a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail”: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J, and that if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It is not required that evidence to support a finding be direct, and it may be found in material that permitted the Tribunal to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ.
It is convenient to deal separately with the two findings alleged to have been made without evidence.
Factual Finding 1 - Information relevant to Ms Zhang’s circumstances in the Mandarin language on the Department’s website
For Factual Finding 1, the relevant finding in the Tribunal Decision at CB 224 at [26] is as follows (emphasis added):
26.The Tribunal does not consider the circumstances surrounding the applicant not holding a substantive visa to be compelling reasons to waive the Schedule 3 criteria. The circumstances in which she held a visa changed when she separated from her then husband. The applicant did not make any reasonable attempts to discuss her situation with the Department, or to regularise the status once she was no longer the dependent or spouse of visa holder. Information is available on the Department’s website in Mandarin and the Department make use of interpreter services so that immigration information is available in several forms in a wide range of languages.
The Tribunal was entitled to rely upon its specialist knowledge and expertise gathered by reason of its experience as a decision-maker in this field of administrative decision-making: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALJR 421; (2001) 65 ALD 1 at [180] per Hayne J; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [40] per Rares J, its specialist knowledge and expertise necessarily extending to knowledge of the Department’s systems (and in this case the content on the website). Since this matter was argued, the High Court has said that the Minister, in making personal decisions to cancel a visa on character grounds, is able to rely on personal or specialised knowledge in exercising a cancellation power: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13; (2021) 395 ALR 403 at [17]-[18] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
It is important to clarify precisely what is being said, or not said, by the Tribunal in the passage highlighted in Factual Finding 1. First, it is that “[i]nformation is available on the Department’s website in Mandarin”, which is a statement about the availability of information on the Department’s website, and second, that interpreter services are used so that that information is available in Mandarin. It is not a statement that the Department’s website is in Mandarin, but rather that information is available on the website in Mandarin, and that interpreter services are used so that “immigration information is available”. It is thus not the case, that the statement highlighted in [36] above from CB 224 at [26] meant that the Department’s website was available in Mandarin. Furthermore, it is unclear whether the Tribunal placed reliance on what was said in the Delegate’s Decision at CB 160 (set out at [32(a)] above) in respect of the same issue: what was said in the Delegate’s Decision it is not expressly referred to in the Tribunal Decision, and nor is what was said in the Tribunal Decision at CB 224 at [26] in the same terms as what was said in the Delegate’s Decision.
The view expressed by the Tribunal at CB 224 at [26] as to the content of the Department’s website, and the availability of interpreter services in relation to the information therein, was a matter of specialist knowledge reposed in the Tribunal, and as such was evidence or material to which the Tribunal could have regard in coming to a finding as to the availability to Ms Zhang of information or services in relation to her Partner Visa application. Reliance upon the Tribunal’s specialist knowledge means that in relation to Factual Finding 1 there was, first, reliable evidence for the finding, and second, it follows that the no evidence ground is not made out. Furthermore, it can be inferred from CB 223 at [13] that the issue of Ms Zhang’s interaction with the Department concerning her visa status was dealt with and discussed at the Tribunal Hearing, it being noted in the Tribunal Decision that Ms Zhang:
(a)“thought the visa granted to her as the dependent of her then husband was like a contract and remained valid until March 2018 and so did not inform the Department she had separated from him”: CB 223 at [13]; and
(b)“did not know her previous … visa was cancelled in June 2017,
and the Tribunal therefore, it can be inferred, discussed the issue related to its specialist knowledge with Ms Zhang, as it was required to do: GKX18 v Minister for Home Affairs & Anor [2019] FCCA 2028 at [133]-[135] per Judge Nicholls; BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 at [16] and [21] per Bromberg J.
It follows that it is unnecessary to deal with Ms Zhang’s contention that the Minister had the opportunity to place into evidence any documentation or proof that would reveal that the Department website was in, or available in, Mandarin, but did not do so: Transcript, p 6, because, for the reasons set out at [38] above, that is not what the Tribunal found at CB 224 at [26]. Further, the contention is one that seeks to reverse the onus of proof in migration judicial review proceedings: VAAD at [45] per Hill, Sundberg and Stone JJ; Maroun at [26] per Jagot J.
Alternatively, if there is an error in relation to Factual Finding 1 as asserted by Ms Zhang, the Court does not consider that is of sufficient materiality to amount to jurisdictional error. To be a jurisdictional error the error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as set out at [10] above.
The Court considers that the dispositive finding in the Tribunal Decision in this regard was that “[t]he applicant did not make any reasonable attempts to discuss her situation with the Department, or to regularise the status once she was no longer the dependant or spouse of visa holder” and it is for that reason that the Tribunal concluded that it “does not consider the circumstances surrounding the applicant not holding a substantive visa to be compelling reasons to waive the schedule 3 criteria.”: CB 224 at [26]. Further, it is incorrect to assert, as Ms Zhang did, that “it [the finding] went to the core of her understanding of the situation, which she argued was a mitigating factor when it came to the compelling reasons.” The evidence before the Tribunal was that it was not until about the time of submitting the Partner Visa application that Ms Zhang became aware that her visa status may have changed, and there was no evidence that she then made any inquiries with the Department, or otherwise engaged with the Department’s website, concerning her visa status: CB 223 at [13] and 224 at [25]-[26]. The language of the Department website is therefore immaterial because there is no evidence that, prior to applying for the Partner Visa, Ms Zhang attempted to engage with the website in order to better understand her situation. It cannot, therefore, be said that the language of the website contributed to why she did not understand that her 457 Visa had been consequentially cancelled under s 140 of the Migration Act and, therefore, could not have materially affected the determinative finding in the Tribunal Decision that “[t]he applicant did not make any reasonable attempts to discuss her situation with the Department, or to regularise the status once she was no longer the dependant or spouse of visa holder”: CB 224 at [26].
The Court, therefore, finds that the no evidence, alternatively no reliable evidence, ground is not made out in relation to Factual Finding 1.
Factual Finding 2 – Ms Zhang’s presence with her family in China would be a short-term arrangement pending processing of her Partner Visa application
For Factual Finding 2 the relevant finding in the Tribunal Decision at CB 225 at [34] is as follows (emphasis added):
The Tribunal acknowledges the applicant’s claim she may suffer some embarrassment returning to see her family in China having become divorced. The applicant is however now remarried, and her presence with her family would presumably be a short-term arrangement pending processing of her Partner visa application.
The use of the expression “pending processing of her Partner visa application” plainly indicates that the time frame imagined by the Tribunal was directly related to the processing time of the Partner Visa application: CB 225 at [34]. The Court, therefore, rejects the Minister’s argument that the Tribunal was not making a finding about the length of time Ms Zhang would be required to spend offshore awaiting the determination of the Partner Visa application, but rather it was a finding that, based on the parties’ evidence, Ms Zhang’s intention was to live in Australia with Mr Naumoski for the “long-term” such that any time offshore would necessarily have been for the “short-term.”
The argument that the Tribunal in making the factual finding that it would only be a “short-term arrangement” drew from Ms Zhang’s own submissions, wherein she estimated that the time it would take to process an offshore Partner Visa application would be 14-19 months: CB 126, is more persuasive. It was not unreasonable for the Tribunal to use Ms Zhang’s own estimate of the time she might be required to be off-shore to conclude that that length of time was “short-term”. There is no established definition of “short-term” in the Migration Act context, and the Tribunal made an evaluative judgment as to the relevant period being “short-term” based on facts of Ms Zhang’s making. In the circumstances, it was open for the Tribunal to conclude that the length of time was short-term, and it is a finding with which this Court ought not interfere: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court, therefore, finds that the no evidence, alternatively no reliable evidence, ground is not made out in relation to Factual Finding 2.
Conclusion – consideration – ground 2
For the reasons set out at [33]-[47] above, the Court finds that neither Factual Finding 1 nor Factual Finding 2 has been made out, and it therefore follows that ground 2 has not been made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that neither of the grounds of the Judicial Review Application have been made out, and that no jurisdictional error has been established in the Tribunal Decision. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 22 June 2022
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