Babicci v Minster for Immigration & Multicultural & Indigenous Affairs

The Tribunal's decision 5 In its reasons for decision, the Tribunal referred to the relevant regulations and sections of the Procedures Advice Manual ("the Manual"). It then set out the evidence advanced on behalf of the applicant and summarised the evidence the applicant had given at a hearing on 24 March 2004. The Tribunal set out reg 1.20J as in force at that time: (1) Subject to subregulations (2) and (3), the Minister must not approve: (a) the sponsorship of an applicant for: (i) a Spouse (Provisional) (Class UF) visa, a Partner (Provisional) (Class UF) visa or a Prospective Marriage (Temporary) (Class TO) visa, as the spouse or prospective spouse of the sponsor; or (ii) an Interdependency (Provisional) (Class UG) visa or a Partner (Provisional) (Class UF) visa, as a person in an interdependent relationship with the sponsor; or (b) the nomination of an applicant for an Extended Eligibility (Temporary) (Class TK) visa or a Partner (Temporary) (Class UK) visa as the spouse of, or as a person in an interdependent relationship with, the nominator; unless the Minister is satisfied that: (c) not more than 1 other person has been granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, the sponsor or nominator on the basis of a sponsorship or nomination; and (d) if another person has been granted a relevant permission in the circumstances referred to in paragraph (c) - not less than 5 years has passed since the date of making the application for that relevant permission; and (e) if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, another person on the basis of a sponsorship or nomination - not less than 5 years has passed since the date of making the application for that relevant permission. (1A) In subregulation (1): relevant permission means: (a) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made during the period from 1 November 1996 to 30 June 1997 (inclusive) - a visa; and (b) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made on or after 1 July 1997 - permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit. (2) Despite subregulation (1), the Minister may approve the sponsorship or nomination of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor or nominator. (3) Subject to subregulation (4), this regulation applies in relation to an application for a visa made on or after 1 November 1996. (4) This regulation does not apply in relation to an application by a person who: (a) was the holder of a Subclass 300 visa that was granted on the basis of an application for a Prospective Marriage (Temporary) (Class TO) visa that was made before 1 November 1996; and (b) has applied for an Extended Eligibility (Temporary) (Class TK) visa; and (c) is seeking to remain permanently in Australia on the basis of the person's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Prospective Marriage (Temporary) (Class TO) visa. (Emphasis added) It can be seen that reg 1.20J(2) empowers the Minister to approve the sponsorship even though reg 1.20J(1) has not been satisfied. The Minister could do so if the Minister was satisfied, relevantly, there were compelling circumstances affecting the sponsor. Approval of the sponsorship was necessary because a criterion for the visa was that, at the time of the application, the applicant was sponsored and, at the time of the decision, the Minister had approved the sponsorship. 6 After setting out reg 1.20J in its reasons, the Tribunal noted there was no statutory definition of "compelling circumstances". It referred to matters identified in the Manual, which might constitute "compelling circumstances". The Tribunal identified "general aspects that may be particularly important" by reference to the Manual. They were the nature of the hardship or detriment that would be suffered by the sponsor if the sponsorship were not approved (it indicated greater weight should be given to hardship or detriment stemming from breaches of a person's human rights rather than stemming from circumstances that are normally encountered in daily life) and the extent and importance of the ties the sponsor had to Australia and the hardship or detriment that would be suffered if the sponsorship were not approved. The Tribunal then said: 32. According to the Macquarie Dictionary "compelling" means "to force or drive, especially to a course of action" It can be seen that Tribunal referred to a meaning of "compelling" which is the defined meaning of the verb "to compel". It appears to have done so on the basis that the word "compelling" in the regulation might be viewed as the present participle of the verb "to compel". 7 After endeavouring to give the phrase "compelling circumstances" content and meaning, the Tribunal proceeded to consider the circumstances relied on by the applicant: 34. The review applicant suffers from a number of physical ailments. The Tribunal accepts Dr William's report that the review applicant has high blood pressure, an umbilical hernia, is overweight, and suffers from the effects of a fractured ankle. The Tribunal also accepts that he may suffer from sleep apnoea. The Tribunal also accepts that the visa applicant's presence would alleviate some of the symptoms the review applicant suffers because of these ailments. She would, for instance, be able to help with the housework thus alleviating the pain in the review applicant's leg. However, the Tribunal does not regard the alleviation of some of the symptoms as a compelling circumstance for the waiver of the prohibition contained in subregulation 1.20J(1). Discomfort and pain from physical ailments are matters met with in day-to-day existence. He does not need to rely on the visa applicant to attend to them. 35. The Tribunal also accepts that the visa applicant's presence in Australia would permit the review applicant to more effectively deal with matters arising from the illnesses he suffers. He may well be able to control his eating habits better if the visa applicant were in Australia. He may have the sleep apnoea tests conducted sooner if the visa applicant were in Australia. However, the Tribunal does not regard this assistance as comprising a compelling circumstance for the waiver of the prohibition contained in subregulation 1.20J(1). The problems the review applicant encounters because of his health are matters arising from day-to-day circumstances. He does need to rely on the visa applicant to attend to them. 36. The Tribunal accepts that the review applicant works very hard in order to provide child support to his son, and to provide funds to the visa applicant. The Tribunal accepts that if the visa applicant were in Australia, the review applicant would, perhaps, need to work less, and that he would be less stressed as a result. However, the Tribunal does not regard the fact that the review applicant meets his legal obligations to his child and to his wife (if there are any such legal obligations), as comprising a compelling circumstance for the waiver of the prohibition contained in subregulation 1.20J(1). If the review applicant is obliged to support his wife and child he must do so whether the visa applicant is in Australia or otherwise. 37. The Tribunal accepts that the review applicant did not cause the break-up of his 2 earlier marriages. The Tribunal also accepts that his first marriage ended over 10 years ago. However, the Tribunal does not regard these circumstances as comprising a compelling circumstance for the waiver of the prohibition contained in subregulation 1.20J(1). The innocence of the review applicant in the early marriage failures, whilst it arouses the Tribunal's sympathy, does not drive the Tribunal to the view that the prohibition should be waived. 38. The review applicant has not had regular psychiatric counselling. However, the Tribunal has considered very closely the report of Dr Williams. In the report the doctor sets out the review applicant family and relationship histories. The Tribunal recognises that the review applicant had a difficult childhood. The Tribunal recognises that review applicant has had a series of, at least, 4 relationships, which, through no fault of his own, have not succeeded. Two of the relationships ended tragically. The Tribunal feels compassion for the review applicant in the circumstances. However, the Tribunal does not regard the circumstances as comprising a compelling circumstance for the waiver of the prohibition contained in subregulation 1.20J(1). The waiver can only be used where the Tribunal is compelled to exercise its discretion. The waiver is not to be used to redress matters that occurred in the past, unless the matters so impinge on the present that they comprise a compelling circumstance. The review applicant has dealt with theses (sic) matters in the past without assistance, and continues to do so. (Emphasis added) The Tribunal then considered the psychiatric evidence in more detail. 8 In the above passages the Tribunal assessed whether particular circumstances comprised "a compelling circumstance for the waiver of the prohibition" contained in reg 1.20J(1). After considering a number of the particular circumstances and rejecting that they constituted compelling circumstances, the Tribunal went on to consider the cumulative effect of the various circumstances: 42. The Tribunal has found that there is no single circumstance that persuades the Tribunal that there are compelling circumstances for the waiver of the prohibition. The Tribunal now considers whether considered as a whole the circumstances affecting the review applicant constitute compelling circumstances for the waiver. The Tribunal is not satisfied that the review applicant's circumstances when considered as a whole comprise compelling circumstances. The Tribunal feels sympathy and compassion for the review applicant. However, the Tribunal is not forced or driven to waive the prohibition in subregulation 1.20J(1). 43. The Tribunal has found that, when considering subregulation 1.20J(2), there are not compelling circumstances affecting the review applicant that allow the Tribunal to approve the sponsorship of the visa applicant. The Tribunal is therefore prevented by subregulation 1.20J(1) from approving the sponsorship of the review applicant. As the sponsorship of the visa applicant is not approved, the visa applicant does not satisfy clause 309.222. The visa applicant is therefore not entitled to the grant of a subclass 309 (Spouse or Partner) visa. (Emphasis added)

Grounds for Review 9 The applicant seeks writs in the nature of certiorari quashing the decision of the Tribunal and mandamus directing the Tribunal to rehear and redetermine the application according to law. He also seeks a declaration that the decision is not a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth) and a writ of prohibition preventing the Minister from giving effect to that decision. He relies on the following grounds: The second respondent (hereafter, "the Tribunal") failed to exercise its jurisdiction according to the law. Particulars (a) The Tribunal failed to properly consider and address the applicant's claim that there were compelling circumstances affecting him and grant the Visa. (b) The Tribunal erred in addressing the issue of "compelling circumstances", in that i. It addressed the term "compelling" as meaning "to force or drive, especially to a course of action", rather than its meaning in the context of "compelling circumstances" in which context it ought not be so limited. ii. The Tribunal erroneously directed itself that it was the Tribunal itself which needed to be compelled or driven to a course of action. iii. The tribunal failed to enquire properly and determine whether there were compelling circumstances affecting the applicant and if so to consider whether to approve the Visa application under subregulation 1.20J(2). iv. The Tribunal erred in addressing a question to itself whether it was forced or driven to waive the prohibition in subregulation 1.20J(1) rather than whether it was empowered under subregulation 1.20J(2) to grant the Visa by virtue of compelling circumstances affecting the applicant. 10 At the hearing the applicant sought leave to add the following grounds. Counsel for the Minister did not oppose the amendment: 2. The Tribunal committed jurisdictional error of law in that it failed to take into account considerations made relevant by Migration Regulation 1.20J(2), being those matters personal to the applicant which went towards the alleviation of his ailments and improvement of his health and general wellbeing. 3. The Tribunal took an irrelevant consideration into account, that being the fact that the applicant's health and welfare are aspects of his day to day existence. 11 Counsel for the applicant submitted the Tribunal erred in its construction of the phrase "compelling circumstances". He referred to the meaning given to "compelling" in the New Oxford Dictionary, namely as "evoking interest, attention… in a powerfully irresistible way". Reference was also made to the judgment of Mason CJ in Van der Meer v R (1988) 62 ALJR 656 at 661. He identified the Tribunal's reasoning that it must be compelled to exercise its discretion (see [42] of its reasons set out at [8] above) as a misconception of the test to be applied. The Tribunal considered whether it felt "forced or driven to waive the prohibition in subregulation 1.20J(1)" rather than whether there were compelling circumstances affecting the sponsor and it was submitted that, in so doing, the Tribunal asked itself the wrong question. As a consequence the decision was attended by error of law which amounted to jurisdictional error. 12 Counsel for the applicant also submitted that reg 1.20J(2) focuses on matters affecting the sponsor personally and so the Tribunal could not lawfully put aside such matters because they were a part of the applicant's day to day life. In written submissions, he submitted that: by so disregarding circumstances like the alleviating effect that Mrs Babicci's presence may have on the applicant's ill health and the positive effect that it may have on his general welfare, the Tribunal failed to have regard to considerations made relevant by the governing legislation. By so doing it took into account an irrelevant consideration. It was submitted that this too was a jurisdictional error. 13 Counsel for the Minister submitted that the proper construction of the phrase "compelling circumstances" was a question of fact, not a question of law, and any error would not result in jurisdictional error. Reference was made to judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 481. Counsel submitted that any distinction between the approach the Tribunal took and whether there were "compelling circumstances affecting the sponsor" was a distinction without a difference. As long as the circumstances affecting the sponsor were addressed there was no error in the Tribunal asking whether those circumstances were such that they compelled the exercise of the discretion. Counsel referred to [43] of the Tribunal's reasons (set out at [8] above). 14 Counsel for the Minister also submitted that the Tribunal's treatment of Departmental policy merely suggested that less weight should be given to factors that are normally encountered in daily life, not that no weight should be given to them. Giving them less weight was, in the Minister's submission, what the Tribunal had done.

Consideration 15 It can be seen that in the second sentence of [42] and the first sentence of [43] (set out at [8] above), the Tribunal paraphrased the question it was required to address. The way it did so was unexceptionable, though it has merged into the one notion the task of considering whether the sponsorship should be approved with the criterion which requires its approval and which, in the absence of approval, would result in refusal of the visa. That is, it treated the non-approval of the sponsorship as a refusal of the visa. However, counsel for the applicant did not rely on the merging of these elements in arguing that the Tribunal had fallen into jurisdictional error. The focus of the submissions concerned the consequences of adopting the definition of "compelling" as a verb. That is apparent in the last sentence of [42], in which the Tribunal imported into what it perceives to be the test, the defined meaning of "to compel" discussed earlier. That is, it treated "compelling" as a present participle and not an adjective. 16 I am satisfied the Tribunal mistakenly adopted a meaning of "compelling" apt to describe the present participle of the verb "to compel" and did not resort to the meaning the word "compelling" has as an adjective. The question that arises is whether this resulted in jurisdictional error. I am not satisfied that the approach adopted by the Tribunal discloses jurisdictional error. The Tribunal appears to have approached the matter on the basis that somehow it had to be sufficiently moved by the circumstances established by the applicant to exercise the power to waive the prohibition in reg 1.20J(1) in favour of the applicant. It is not entirely clear whether it proceeded on the footing that it might be required to assess its subjective response or reaction to the circumstances. That view might be open because it indicated in the penultimate sentence in [42] that it felt sympathy and compassion for the applicant but that, as indicated in the next sentence, it was not forced or driven to waive the prohibition. The better view, however, is that it was then simply expressing its sympathy towards the applicant (as it had done earlier in its reasons) before moving on to consider whether the material revealed "compelling circumstances" affecting the applicant. 17 The Tribunal's choice of words, whether it was "forced or driven to waive the prohibition", was curious (but understandable because of an earlier decision of the Tribunal in Re David James Shannon (IRT Decision No. W98/00234, 12 January 1999) which adopted that formulation and to which the applicant referred in written submissions submitted to the Tribunal). Nevertheless, it reveals an approach consistent with what is required. That is, the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal. Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship. 18 In addition, the way the Tribunal actually went about assessing the circumstances indicates that it did not misunderstand its function. It may well be, as the applicant sought to demonstrate, that the Tribunal did not deal with all material as precisely as it could have with regard to the case advanced by the applicant. However, whatever deficiencies the Tribunal's reasons reveal in its analysis, they do not demonstrate error of the character that would constitute jurisdictional error. The Tribunal was aware of what it had to do, went about assessing the material with that in mind and made a decision applying an appropriate test. 19 The application should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 16 December 2004 Counsel for the Applicant: G Nicholson QC with L Karp

Solicitor for the Applicant: Anne O'Donoghue & Associates

Date of Hearing: 6 December 2004

Date of Judgment: 16 December 2004