Choi v Minister for Immigration and Border Protection

1. The extension of time be granted; and
2. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to file and serve an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 9 October 2017. The Circuit Court dismissed the applicant's application for judicial review of the decision of the Administrative Appeals Tribunal, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa. 2 In the present appeal, the applicant seeks an extension of time to file the notice of appeal in accordance with r 36.05 of the Federal Court Rules 2011. This notice of appeal was required to be filed within 21 days of the handing down of the Circuit Court judgment; that is, by 30 October 2017. This was not done. The application for an extension of time was made two days after the last day for filing of a notice of appeal, on 1 November 2017. 3 The applicant submits in their written submissions filed 19 February 2018 that the reason for the delay is financial hardship on the part of the applicant. The explanation is as follows, and is not contested by the respondent: [11] On 19 May 2017, the applicant was granted a Bridging visa C (BVC) with a 'condition 8101 - no work' … subsequently she is without a viable personal source of income. [12] The applicant and her spouse derive income from the sponsor's pension … [13] As at 30 October 2017, the relevant Court fees payable by an appellant/applicant for a Federal Court of Australia migration matter was a combined total of $6,720 … [14] The applicant is not an Australian citizen or permanent resident therefore was not entitled to apply for an exemption of the Court fees. [15] The applicant was able to collate the funds required for the relevant fees by 31 October 2017 and the application for an extension of time was made on 1 November 2017. 4 The applicant submits that the explanation for delay is reasonable in the circumstances, especially since the delay was minimal and did not prejudice the respondent. Although the minimal delay and lack of prejudice is not contested by the respondent, the respondent raises lack of prospects of success as reason for refusing the application for an extension of time. 5 The history of the applicant is described in the reasons of the delegate, Tribunal and Circuit Court. The Tribunal stated at [2] of its reasons: The applicant is a national of Korea, born in July 1954. She first entered Australia in August 2003 and had been granted a number of visas in Australia, the last of which expired in March 2011. The applicant applied for the Partner visa on 8 October 2014 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant met Item 3001 and found there were no compelling reasons to waive that requirement. 6 Clause 820.211 of the Migration Regulations 1994 (Cth) requires that an applicant who does not hold a substantive visa at the time of application, such as the applicant in this matter, satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that "compelling reasons" exist for not applying those criteria. 7 These "compelling reasons" must be sufficiently powerful to lead the relevant decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; 141 FCR 285, [24] (Tamberlin, Conti and Jacobson JJ). The decision-maker must engage in an active, genuine and intellectual process to satisfy the mandatory consideration of whether such compelling reasons exist: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, [19]. 8 Whether the Sch 3 criteria ought to have been waived in the circumstances of the applicant is the only live issue in this appeal. Other grounds of appeal raised below are now not in contention, and so need not be canvassed in detail in these reasons. 9 The relevant criteria are extracted at [23] of the Tribunal's reasons, as follows: 3001 (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. 3002 The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)). 3003 If: (a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and (b) on 31 August 1994, the applicant was either: (i) an illegal entrant; or (ii) the holder of an entry permit that was not valid beyond 31 August 1994; the Minister is satisfied that: (c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and (d) there are compelling reasons for granting the visa; and (e) the applicant has complied substantially with the conditions that apply or applied to: (i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and (ii) any subsequent bridging visa; and (f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and (g) the applicant intends to comply with any conditions subject to which the visa is granted; and (h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia. 3004 If the applicant: (a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa; the Minister is satisfied that: (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and (d) there are compelling reasons for granting the visa; and (e) the applicant has complied substantially with: (i) the conditions that apply or applied to: (A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and (B) any subsequent bridging visa; or (ii) the conditions that apply or applied to: (A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and (B) any subsequent bridging visa; and (f) either: (i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or (ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and (g) the applicant intends to comply with any conditions subject to which the visa is granted; and (h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia. 10 The applicant appeared before the Tribunal on 19 April 2017 for review of the delegate's decision. The Tribunal also received oral evidence from the sponsor. The applicant conceded that at the time of her application for a partner visa, she was not the holder of a substantive visa, nor did she satisfy the above 3001, 3003 and 3004 criteria. As such, the key question was whether "compelling reasons" existed to waive these criteria. 11 From [13] to [32] of its reasons, the Tribunal considered the claims of the applicant. It accepted that: A genuine and long-standing relationship exists between the applicant and sponsor; "[T]he sponsor [suffered] from depression and insomnia at the time they started the relationship and … his symptoms improved after the relationship started"; The sponsor suffers from a number of physical ailments and is assisted and cared for by the applicant; The parties pool their resources and share their finances; The applicant and sponsor "rely on each other for comfort and emotional support"; and The parties may be separated if the waiver is not applied. 12 Nevertheless, the Tribunal affirmed the delegate's decision that compelling reasons for the waiver did not arise. The Tribunal found that the threshold of "compelling reasons" was not met as the existence of a genuine relationship and close emotional support is simply a normal indicia of marriage, the sponsor's mental and physical medical conditions were not of such severity as to meet the required threshold, the couple would not experience financial hardship if the waiver was not applied, and any separation would be, or could well be, temporary. The Tribunal concluded that there were not compelling reasons for not applying the Sch 3 criteria. 13 At the hearing before the Circuit Court, the applicant raised this same issue of whether to waive the Sch 3 criteria due to "compelling reasons", in addition to another ground of appeal which is no longer relevant. Both were dismissed by the primary judge, in short orders. In relation to the former, the applicant submitted that the Tribunal erred by not considering all of the circumstances surrounding the applicant when undertaking the "compelling reasons" exercise. Namely, the Tribunal failed to consider the death of her previous spouse and her lonely and tough life prior to the relationship with the sponsor. On this point, the primary judge found: [24] Whilst I accept that the Tribunal did not refer to the applicant's former partner's death. The Tribunal accepted that the sponsor and the applicant provide each other with comfort and emotional support. That finding subsumed the applicant's prior state of wellbeing. It is not necessary for the Tribunal to refer to every piece of evidence. [25] There was no failure by the Tribunal to engage in a proper and genuine consideration of the merits of the applicant's claims and evidence in determining whether there were compelling reasons for waiving the Schedule 3 criteria. 14 These two paragraphs form the basis of the applicant's present contention that the primary judge dismissed the appeal in error. The applicant contends that the Tribunal was required to consider and evaluate for itself the applicant's claimed circumstance prior her relationship with the sponsor in accordance with MZYPZ, and failed to do so. This is because the Tribunal failed to acknowledge the claimed circumstance and make a finding directly on it as it had for the other claimed circumstances; a comparison raised by counsel for the applicant in oral submissions. The applicant further submits that even if the Tribunal had "subsumed" its consideration of the applicant's loneliness together with general considerations of emotional support, as the primary judge found, it was cursory and insufficient to constitute genuine and proper consideration. 15 Having considered the reasons of the Tribunal and primary judge in detail, it appears more than likely that the consideration of the applicant's prior loneliness was indeed subsumed in the Tribunal's discussion at [26] of its reasons of the couple providing mutual "comfort and emotional support". There also do not appear to be any other claimed circumstances raised by the applicant or sponsor that were overlooked by the Tribunal. 16 First, the decision is not to be read with an eye attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259. As noted by the primary judge, it is not necessary for the Tribunal to address every single claimed circumstance individually in order for it to have given genuine and proper consideration to the totality of the applicant's circumstances. It is acceptable for consideration of such matters to be grouped, and assessed as such. In MZYPZ, at [12], Bromberg J stated that "[i]n the evaluative judgment to be made, 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". 17 The applicant raises the decision in MZYPZ in support of their contention that the Tribunal failed to give genuine consideration to the applicant's emotional state prior her relationship with the sponsor. In MZYPZ, the appeal was allowed on the basis that the Tribunal had failed to consider the appellant's fear of returning to Sri Lanka when determining whether or not compelling reasons existed to waive the Sch 3 criteria. Rather, it merely noted the applicant's claimed circumstance and dismissed it immediately because, in proceedings two years earlier, the claim had been dismissed by the Refugee Review Tribunal in an application for a protection visa. The Tribunal did not re-engage with the material at all. Nor was there any indication that the Refugee Review Tribunal's reasons or a record of those proceedings was before the Tribunal. The judge found that the Tribunal had "foreclosed and … not consider[ed] for itself" that particular claimed circumstance: [26]. 18 In contrast, in the present proceedings, the Tribunal expressly recognised the Statements by the applicant and sponsor (which contained the claims in respect of their prior loneliness). It is unlikely that the Tribunal would then have overlooked these statements. The Tribunal also gave more detailed consideration to each of the claimed circumstances than the delegate did, and came to some more favourable conclusions as to those circumstances. It is therefore much likelier that the Tribunal did indeed "subsume" its consideration of the applicant's loneliness as a widow in its broader consideration of emotional support. 19 Whilst the Tribunal's approach may not have been the most preferable, it was not unreasonable. Nor does it mean that the assessment was cursory or non-existent. To a great extent, the Tribunal's different ways of evaluating the different claimed circumstances can be explained by how each of the claimed circumstances were put to the Tribunal in submissions. 20 The sponsor's mental state was examined by the Tribunal at [22] and [31] of its reasons. There was medical evidence tendered in relation to the sponsor's depression and insomnia, and his improvement since his relationship with the applicant began. The Tribunal came to a more favourable conclusion than the delegate as to this claimed circumstance, although also came to the same conclusion that the sponsor's condition would not be adversely affected if the waiver were not applied. 21 The sponsor's physical state and the care provided by the applicant were examined from [23] to [25] and at [31] of the Tribunal's reasons. Ultimately, the Tribunal was not satisfied that the sponsor would be unable to obtain some level of care from his relatives and community. 22 The sponsor and applicant's financial situation was considered at [29] and [30] of the Tribunal's reasons. It appears the main contention below was that the sponsor would have financial difficulty going overseas with the applicant, and neither the applicant nor sponsor wished to ask family or friends for financial assistance. The inability of the sponsor to follow the applicant offshore and the couple's reluctance to ask for money was not accepted by the Tribunal as causing financial hardship if the waiver were not to be applied. 23 The claimed circumstance that is the subject of this appeal was dealt with at [26]-[27] of the Tribunal's reasons, under the umbrella of emotional support. 24 The applicant's evidence in respect of her loneliness as a widow prior the relationship with the sponsor was limited to the "Statement by Jinheung Choi" of September 2014. This document refers to her loneliness and difficulty finding someone to speak to freely. It was acknowledged at [16] of the Tribunal's reasons, together with a Statement by the sponsor addressing the sponsor's own loneliness prior the relationship and happiness during. 25 As noted earlier, at [26] of its reasons the Tribunal accepted that the parties rely on one another for comfort and emotional support. It also expressly referred to the couple being able to maintain frequent communication and provide each other with emotional support even if they are separated physically. At [32] of its reasons, the Tribunal made further comments about the hardship faced by the couple if they were to be separated: The Tribunal is mindful that if this relationship is genuine, the applicant will be able to make another application for a Partner visa offshore, so any period of separation would be temporary. It may be possible for the couple to travel and see each other while waiting for the processing of such an application but even if they are separated for a period of time, the Tribunal does not consider this to be a sufficiently compelling reason to apply the waiver. Separations are not uncommon in cases such as the present one. The couple will be able to maintain contact, despite any physical separation, by electronic means. While the Tribunal accepts that the couple would prefer not to separate, the Tribunal is not satisfied that a period of temporary separation would, in the circumstances of the case, give rise to compelling reasons for the waiver. 26 Together with the express acknowledgement of the Statements, it appears that the Tribunal did turn its mind to the company and comfort the applicant and sponsor gave each other. It recognised the loneliness and lack of emotional comfort that would result from any separation. This implicitly recognises the loneliness and lack of emotional comfort that may have existed before the relationship began, such as the applicant's loneliness as a widow. 27 Further, the argument raised as to the applicant's prior loneliness is not an argument comparable to those about the mental health history or physical ailments of the sponsor. The latter submissions had more evidence tendered in support and more detail provided as to the past medical history and improvements following the development of the relationship. The claimed circumstance of the applicant's loneliness was, in contradistinction, briefly canvassed by the applicant in one written Statement. It was therefore capable of being grouped under the broader umbrella of emotional support. 28 This grouping of mutual emotional support and comfort also makes sense on the basis that, as put by the Tribunal, emotional support is a normal indicia of a marriage, and hence a mutual experience. As noted earlier, it was not necessary for the Tribunal member to have considered every argument put by the applicant separately. For example, the Tribunal's determination on finances grouped consideration of both the applicant and sponsor's finances and is not challenged by the applicant. It was within the Tribunal's discretion to group submissions and deal with them as such. 29 In the hearing, there was also some discussion of whether consideration of "compelling reasons" requires more than merely consideration of hardship. In [32] of its reasons the Tribunal concluded: Overall, the Tribunal accepts that some hardship would be caused to the applicant and the sponsor if the waiver is not applied, most significantly because the applicant may have to leave Australia for a period of time. However, having considered the applicant's circumstances singularly and cumulatively, the Tribunal is not satisfied that the degree of hardship is such as to give rise to compelling reasons for the waiver. Having considered the totality of the applicant's circumstances, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl 820.211(2)(d)(ii). 30 In oral submissions, counsel for the respondent submitted that the reference to hardship was simply "by reference to the way that the claims are asserted before it because they did almost entirely focus upon matters of hardship". Counsel for the applicant did not make any submissions specifically on the issue. I am inclined to agree with the respondent on this matter. Although consideration of "compelling reasons" seems, in principal, to not be limited to hardship, hardship is the element most often referred to. This seems to be for three reasons. 31 First, in providing examples of potential "compelling reasons", the Explanatory Statement for the Migration Regulations (Amendment) 1996 No 75 states that a genuine long-standing relationship may justify waiver because of the hardship which could otherwise result. It also provides that: "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." This emphasises the primary role of hardship in the consideration of "compelling reasons". 32 The role of hardship in this consideration is further highlighted in Waensila v Minister for Immigration and Border Protection & Anor [2016] FCAFC 32; 241 FCR 121. In that case, Griffiths J noted that the Minister accepted that the mischief to which the waive provision was directed at was the hardship that could be caused by forcing a partner visa applicant to apply for the visa offshore: at [48], see also [56]. Robertson J also accepted that the purpose of the waiver provision was to "give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant": at [18]. 33 On a side note, it is notable that Department policy has narrowed the range of factual circumstances falling within the scope of the waiver. In the delegate decision for this matter, it was stated that the provisions are "not intended to facilitate persons who can leave Australia and apply for a partner visa offshore". Rather, it is aimed at persons who, due to involuntary circumstances beyond their control like illness or incapacity, became unlawful non-citizens and were prevented from regularising their immigration status. This seems directly contrary to the initial Explanatory Statement referred to above. Such an approach is also (perhaps implicitly) criticised by Crennan J in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; 143 FCR 204 at [37], stating "there is nothing in the express wording, or the context, which indicates that 'compelling reasons for the absence' must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person's control". 34 Second, the way in which arguments are pleaded in these cases tends to put focus on hardship. From a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Sch 3 criteria. This often means emphasising the hardship that would result (to the applicant, sponsor, or third parties) if the waiver is not granted. In Nagaki v Minister for Immigration & Anor [2016] FCCA 1070, when considering what constituted "compelling circumstances" in relation to the sponsor, the Circuit Court specifically looked at hardship suffered by the sponsor if the application were to be rejected and the extent, the importance of the ties the sponsor had to Australia, and the consequent hardship if the sponsor had to move offshore to be with the partner if the sponsorship were not approved. Although this was governed by a different legislative provision of the Migration Act, it is still useful in showing the role of hardship in determining whether compelling reasons or circumstances exist. Even where the argument focuses on the impact on a third party like a child, the focus is on the hardship that could be suffered by that child: see Migunda v Minister for Immigration & Anor [2009] FMCA 247. 35 Finally, even if it were a requirement that more than just "hardship" be considered by the decision-maker, it does not appear the Tribunal confined itself to a pre-conceived idea of hardships that could fall within the waiver's remit. Rather, it responded to the arguments put by the applicant. In this case, the arguments put forward by the applicant were about the hardship that would result from separation: the detrimental impact separation would have on the sponsor, the lack of financial means for the sponsor to follow the applicant offshore, and the loss of mutual emotional support. It was not unreasonable for the Tribunal to group these as falling within the concept of hardship. 36 This is not to say that hardship is the only factor to be considered in this exercise. In other circumstances, more than just the question of hardship may need to be assessed. The concept of "compelling reasons" arises elsewhere in the Migration Regulations. For example, under cl 202.222(2), the applicant's connection to Australia can give rise to compelling reasons or circumstances. There is nothing to indicate that similar reasons would be amiss in argument as to compelling reasons existing under situations governed by cl 820.211. 37 Nevertheless, no such submission was made in this case. The arguments put to the delegate and Tribunal concerned, broadly speaking, the hardship that would be suffered by the applicant and her sponsor if the applicant were forced to make the application offshore. There is no error or unreasonableness in the reasons or conclusion of the Tribunal, nor the Circuit Court, in this regard. 38 In the circumstances, I would grant the extension of time but dismiss the appeal with costs. 39 For those reasons, the orders of the Court are that: