Kumar v Minister for Immigration, Citizenship and Multicultural Affairs

GROUND OF APPEAL 6 The appeal to this Court was confined to a single ground: [The Circuit Court] erred in not finding that the Tribunal failed to consider the substantial and clearly articulated claim that the long-standing relationship between the Appellant and his sponsor was a compelling reason not to apply the Schedule 3 criteria. In particular, the [Circuit Court] erred in finding at [24] that "it is clear that the Tribunal is aware of the period of time that the Applicant and sponsor have been in a relationship". 7 In essence, the ground was whether the Circuit Court erred in not concluding that the Tribunal had failed to exercise its jurisdiction by failing to consider a substantial and clearly articulated submission that the length of the relationship between the Appellant and his sponsor was, of itself, a compelling reason not to apply the Schedule 3 criteria.

Submission 8 The Appellant was represented before the Tribunal by his registered migration agent. The submissions made to the Tribunal on the Appellant's behalf included the following: I am advised that the [Appellant] and the Sponsor have co-habited [sic] at 13 Sputnik Court Whittington since 5 August 2014. This relationship is now more than 2 years and 8 months at time of writing. … In summary I believe that the [Appellant] would have met all the criteria for the visa grant in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa. I wish also to stress that the [Appellant] and the Sponsor have been in a long term and continuing relationship since August 2014.

Tribunal Reasons 9 The Tribunal correctly stated that, in the context of cl 820.211(2)(d)(ii), "compelling reasons" means reasons which are "sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria": Tribunal reasons [14]. 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) 127 ALD 510 at 512 [10] (Bromberg J); [2012] FCA 478, citing Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at 289 [24] (Tamberlin, Conti and Jacobson JJ); [2005] FCAFC 77. 10 The Tribunal accepted that the Appellant's sponsor had suffered back pain and had not worked since a fall at work in March 2009. The sponsor walked with the aid of walking sticks and was prescribed medication, and attended physiotherapy: Tribunal reasons [16]. 11 The Tribunal considered that the evidence presented to it "involved the claim that the sponsor was dependent on the [Appellant] due to her physical disabilities" and considered whether hardship to the sponsor would amount to "compelling reasons": Tribunal reasons [15]. 12 In examining that claim, the Tribunal looked at the circumstances relating to the sponsor (Tribunal reasons [16]-[25]) and the nature of the assistance provided to the sponsor by the Appellant (Tribunal reasons [26]-[31]). In the course of its consideration, the Tribunal stated (Tribunal reasons [28]): In the sponsor's statement she records she met the [Appellant] in August 2014, and he first moved into her home on 3 March 2015. The tribunal accepts the [Appellant] has moved into the sponsor's home, and that since he moved into the home of the sponsor he has assisted her in the home with housework and gardening tasks, and driven her to some appointments. 13 The Tribunal reached the following conclusions in relation to the effect on the sponsor should the Appellant be required to lodge his visa application offshore (Tribunal reasons [32]-[33]) (emphasis added): [32] The tribunal has considered all the evidence before it. The tribunal accepts it would be difficult for the sponsor if the [Appellant] was not there to do the household tasks or to drive her to appointments. The tribunal accepts that it would be difficult when the pain is more severe not to have the support of the [Appellant]. However, the tribunal is not satisfied that the sponsor's disabilities make her so physically dependent on the [Appellant] that if the [Appellant] was required to lodge the application offshore, the effect on the sponsor would amount to compelling reasons for not applying the Schedule 3 criteria. [33] The tribunal has considered there is no psychological report that is evidence of the sponsor's psychological or emotional dependence upon the [Appellant]. The tribunal has considered the sponsor's evidence that she depends on the [Appellant] for support. The tribunal has considered the sponsor's statutory declaration dated 19 April 2017 in which she declares he is caring, supportive and genuine. The tribunal has considered the representative's submission which states the [Appellant] provides care and support, and that leaving the sponsor on her own in Australia would affect her emotionally and psychologically. There is little evidence before the tribunal that the sponsor is more psychologically dependent upon the [Appellant] or would be more seriously emotionally affected by the departure of the [Appellant], than other sponsors who have been with their partners for a similar period of time. The tribunal is not satisfied that the sponsor is so psychologically dependent upon the [Appellant] that if he was required to lodge the application offshore, the effect upon the sponsor of not having the [Appellant] to support her would amount to compelling reasons for not applying the Schedule 3 criteria. 14 The Tribunal considered (and addressed) the following claims made in the Appellant's written submissions: (1) A claim that India was not a safe place for him to return because of threats from his first wife and family. Based on the evidence before it, the Tribunal was not satisfied that claimed threats made or perceived from the Appellant's first wife and/or her family in India constituted "compelling reasons" for not applying the Schedule 3 criteria: Tribunal reasons [34]. (2) A claim that the Appellant would have difficulty obtaining employment in India. The Tribunal was not satisfied that this claim was a "compelling reason": Tribunal reasons [35]. (3) A claim made in written submissions to the Department that the Appellant would suffer financial costs with responsibility for managing two households and that the sponsor would be at risk of being marginalised if the Appellant were required to leave Australia. The Tribunal was "satisfied that the sponsor has financially provided for the [Appellant] over the last two years": Tribunal reasons [36]. The Tribunal was not satisfied that if the Appellant were required to lodge the partner visa application offshore, the sponsor would be marginalised or there would be a financial effect on the sponsor's household, or that there would be financial hardship to either the Appellant or the sponsor: Tribunal reasons [36]. (4) A claim made in written submissions to the Department that the sponsor would face medical problems if she travelled to India. The Tribunal was not satisfied that the sponsor intended to travel to India if the Appellant were required to lodge the visa application offshore. The effect of travel to India on the sponsor's treatment was not a compelling reason for not applying the Schedule 3 criteria: Tribunal reasons [37]. (5) A claim that the Appellant had been threatened by his second wife and her family. This claim was considered as not constituting a compelling reason: Tribunal reasons [38]. 15 The Tribunal considered the above claims individually and collectively and was not satisfied that they amounted to compelling reasons for not applying the Schedule 3 criteria: Tribunal reasons [39].

PROCEEDINGS BEFORE THE CIRCUIT COURT 16 The Appellant's application to the Circuit Court for judicial review of the Tribunal's decision advanced a ground of review, set out in the reasons for judgment of the primary judge as follows (at [13]): 1. The Tribunal failed to complete its jurisdiction by failing to consider a substantial and clearly articulated submission. Particulars a) It was a substantial and clearly articulated submission that the relationship between the [Appellant] and his sponsor was a long‑standing one of two years or longer, and that this was a compelling reason not to apply the Schedule 3 criteria (the claim). b) The Tribunal failed to consider the claim. 17 The primary judge considered that the issue in dispute was a narrow one, confined to whether the submission set out at para [8], above, was considered by the Tribunal and, if not, whether that failure constituted a material jurisdictional error: primary judge reasons [15]. 18 The primary judge considered that there were three aspects to the claim or submission (primary judge reasons [20]). First, that the Appellant and the sponsor had "co-habited" [sic] since 5 August 2014. Second, that the relationship was "more than two years and eight months". Third, that the relationship was "a long‐term and continuing one". 19 The primary judge concluded that the Tribunal had considered each aspect of the claim, based on a review of the Tribunal's reasons. That review disclosed that the Tribunal had carefully examined the nature of the relationship between the Appellant and the sponsor: primary judge reasons [26]. The primary judge expressed the following conclusion (emphasis in original): The matters I have referred to above demonstrate that the Tribunal considered closely the various aspects of the relationship between the [Appellant] and the sponsor. Importantly, it considered those aspects of the relationship to which I have referred in a context where it was aware (because it expressly said so) that the [Appellant] had moved into the sponsor's home in March 2015, and that the [Appellant] and the sponsor were "partners". It cannot be said, in my view, that there was a failure by the [Tribunal] to engage with and consider the Claim when these matters are considered.

SUBMISSIONS OF THE PARTIES 20 Before this Court, the following was common ground between the parties: (1) The claim or submission set out at para [8], above, was made and was clearly articulated. (2) It was an established fact that the Appellant and his sponsor had been in a relationship for more than two years. (3) The Tribunal considered the evidence and the established fact. (4) The length of a relationship can, on its own, constitute a "compelling reason" for the purposes of cl 820.211(2)(d)(ii) of Sch 2 of the Act. 21 The parties adopted different positions on whether the claim was considered by the Tribunal and, if the Tribunal had failed to consider the claim, whether that failure was material to the decision it made. 22 The Appellant contended that his submission concerning the length of his relationship with his sponsor should be understood in light of the Explanatory Statement to the Migration Regulations (Amendment) 1996 No 75 (Cth) (Explanatory Statement). It was submitted that, although the Explanatory Statement was not expressly referred to by the Appellant in his submissions to the Tribunal or the delegate, as decision-makers in this field, they should be taken to have knowledge of and be aware of that Explanatory Statement. 23 The Explanatory Statement relevantly states (italicised emphasis added): Clause 10 - Schedule 2, Part 820 (Spouse) Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise. It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as: • where there are Australian-citizen children from the relationship; or • where the applicant and his or her nominator are already in a long‑standing relationship which has been in existence for two years or longer. In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived. 24 Reliance was placed on the reasons of Logan J in Singh v Minister for Home Affairs (2020) 274 FCR 506 at [5]-[11]; [2020] FCAFC 7 where his Honour considered the first of the "strongly compassionate" examples cited in the Explanatory Statement. Though affirming that the existence of circumstances cited in those examples was not a "relevant consideration" required to be taken into account by a decision‐maker in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40, Logan J went on to state (at [11]): I am prepared to accept that, in the absence of an explanation given in advance by or on behalf of the Minister, or in his place by the Tribunal, a visa applicant is entitled reasonably to assume that a regulation will be administered in accordance with a statement given in a related explanatory statement. Good public administration demands no less. However, as Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at [37], "Fairness is not an abstract concept."

PRINCIPLES 25 In the context of cl 820.211(2)(d)(ii), the existence of "compelling reasons" is a matter of which the Minister - and, upon review, the Tribunal - must be satisfied. It is the decision-maker and not the Court on judicial review who must be satisfied that "compelling reasons" exist. 26 A failure by a decision-maker to consider a substantial and clearly articulated claim or submission can constitute jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at 426-7 [27] (Kiefel CJ, Keane, Gordon and Steward JJ), 447 [105] (Gleeson J); [2022] HCA 17; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ); [2019] HCA 3; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 326 [24]-[25] (Gummow and Callinan JJ); [2003] HCA 26. As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20 [63] (Black CJ, French and Selway JJ); [2004] FCAFC 263: It is plain enough, in the light of [Dranichnikov 73 ALD 321], that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 27 A Tribunal has a duty to consider the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself: Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593 at 604 [44] (French, Sackville and Hely JJ); [2003] FCAFC 184. A failure to consider a clearly articulated and substantial argument supported by established facts results in the Tribunal failing to conduct the review required by the Act: SZMTA 264 CLR at 436 [13] (Bell, Gageler and Keane JJ); Dranichnikov 73 ALD at 394 [24]-‍[25], 395 [32] (Gummow and Callinan JJ). 28 A failure to consider a clearly articulated claim or submission can also constitute a failure to accord procedural fairness. Procedural fairness requires that an applicant not only have the opportunity to make submissions but to be heard. The requirement to be heard encompasses a requirement that the decision-maker address clearly articulated submissions of substance: SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-6 [75]-‍[82] (Griffiths J); [2014] FCA 863. 29 For a failure to consider a submission to constitute jurisdictional error, it is necessary to determine both whether: (1) a submission of substance was clearly articulated (or clearly emerges from the material before the Tribunal): SZSSC 142 ALD at 172-6 [75]-[82] (Griffiths J); AXD18 v Minister for Home Affairs [2019] FCA 1329 at [24] (Banks-Smith J); BOV15 v Minister for Immigration and Border Protection [2018] FCA 648 at [27] (Thawley J). As part of this task, it is necessary to identify with some precision the submission which was so articulated or which clearly emerged from the materials before the decision‐maker; and (2) the Tribunal failed to consider (Dranichnikov 73 ALD at 408 [95] (Hayne J)), or respond to (Dranichnikov 73 ALD at 394 [24] (Gummow and Callinan JJ)), the claim or submission. This requires an examination of the Tribunal's reasons. 30 Whether there has been a failure to consider a claim or submission is to be determined as a matter of substance, and not a matter of form, of the Tribunal's published reasons: Applicant WAEE 236 FCR at 604 [45] (French, Sackville and Hely JJ); SZSSC 142 ALD at 174-6 [81] (Griffiths J). Even if a contention is not expressly dealt with in the Tribunal's reasons, an inference that a Tribunal failed to consider an issue is not too readily to be drawn where the reasons are comprehensive and the issue is at least identified at some point. As the Full Court said in Applicant WAEE 236 FCR at 604-5 [47]: It may be that it is unnecessary to make findings on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

The Claim Made 31 Whilst it was not contested that the submission or claim set out at para [8], above, was made and was clearly articulated, there may have been a difference between the parties as to what was encompassed by that claim. 32 The Minister's submissions adopted the primary judge's analysis of the claim, as set out at paras [16]-[19], above. 33 The Appellant contended that the submission which had been made to the Tribunal was that the length of the relationship, in and of itself, was sufficient to justify a conclusion that "compelling reasons" existed for not applying the Schedule 3 criteria. 34 The Appellant contended that the submission or claim set out at para [8], above, was made in the context of regulations in respect of which there was an Explanatory Statement and, therefore, the reference to the fact that the Appellant and sponsor had been in a long term and continuing relationship since August 2014 was to be construed as a claim that the length of the relationship was, in and of itself, a matter which justified a conclusion that "compelling reasons" existed. 35 The Appellant's construction of the submission or claim is not accepted. The submission at para [8], above, refers to the length of the relationship between the Appellant and his sponsor. But it does no more than raise the length of that relationship as a circumstance to be weighed in favour of forming a view that "compelling reasons" existed. The submission does not involve a contention that the length of the relationship is a matter that, in and of itself, justified the conclusion that there were "compelling reasons" to waive the Schedule 3 criteria. 36 The Appellant accepted that the reasons of the Tribunal expressly took into account the length of the relationship between the Appellant and his sponsor in the context of its consideration of the totality of the circumstances relating to their relationship. On a fair reading of its reasons, the Tribunal considered the length of the relationship as a factor in its assessment of the entirety of the overall circumstances in reaching its state of satisfaction concerning the existence of compelling reasons. There was no failure by the Tribunal to consider an established fact (and the Appellant did not suggest otherwise). 37 Furthermore, as the primary judge found, each of the elements of the claim as articulated had been considered by the Tribunal. Accordingly, there was no jurisdictional error on the part of the Tribunal by reason of a failure to consider a clearly articulated substantive submission or claim. It follows that the Circuit Court did not err in concluding that no jurisdictional error had been established.

Statutory Task 38 If this construction of the submission or claim is not correct, a failure by the Tribunal to consider a claim that the length of the relationship between the Appellant and his sponsor was, of itself, sufficient to demonstrate "compelling reasons" would not have amounted to jurisdictional error. 39 The Appellant's contention before this Court was that, although not mandating the existence of "compelling reasons", it was possible that the length of the relationship between the Appellant and his sponsor could be determinative if considered in isolation from other circumstances. It followed, according to the Appellant, that the Appellant's claim that the length of the relationship was, of itself, sufficient to constitute "compelling reasons" (which I have concluded was not the claim made) was a claim that the Tribunal was required to consider and address separately. 40 The Appellant's contention to this Court relied heavily on the examples in the Explanatory Statement. Counsel for the Appellant accepted that absent the Explanatory Statement, the Appellant's case would have been "pretty weak". 41 The content of the Explanatory Statement does not have the significance the Appellant sought to attribute to it. 42 A statement in an explanatory statement in respect of subordinate legislation cannot be a substitute or proxy for its text any more than an explanatory memorandum can be in relation to the text of a statute: Singh 274 FCR at 510 [8] (Logan J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41. By its terms, cl 820.211(2)(d)(ii) does not confine the manner in which the decision‐maker is to reach the state of satisfaction. 43 In any case, the Explanatory Statement here does not suggest that the length of the relationship between the Appellant and his sponsor can, of itself, dictate that compelling reasons exist. The existence of a child (as cited in the first example in the Explanatory Statement) was rejected as dictating a conclusion that compelling reasons existed in Singh 274 FCR 506 and Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184. The second example does not stand any differently. As Derrington J said in Singh 274 FCR at 521 [61] (Reeves J concurring at 511 [15]) (emphasis added): [T]he Explanatory Statement, to the extent it assists, tends to suggest that the Convention is not a mandatory requirement. Firstly, the reference to "greater flexibility" indicates a degree of decisional freedom such that the matters which might be taken into account in forming the state of mind are unconfined, which is coordinate with the unconfined manner in which the task is imposed on the decision-maker. There is nothing in the statement which suggests the existence of some mandatory considerations. Second, the terms of the statement indicate that the circumstances may justify a waiver if hardship is involved, which again suggests an amount of decisional freedom. It should be observed that the language of "waiver" employed in the statement is incongruous with the terms of the clause. There is no discretionary power to waive any requirements. The clause simply requires that an assessment be made as to the existence of compelling reasons for not applying the [Schedule] 3 criteria. If the decision-maker is satisfied there are, the exception will apply. If the required state of satisfaction is not reached, the requirement of cl 820.221(2)(d)(ii) will not have been met. 44 The Appellant referred to paras [17]-[19] of the reasons of the primary judge, which are relevantly in the following terms (emphasis in original): [17] There is little doubt that the length of a relationship can be a "compelling reason" for waiving the Schedule 3 criteria. So much is clear from the Explanatory Statement … This regulation introduced clause 820.211(2)(d)(ii) in its present form … [18] The significance of the Explanatory Statement is a matter that has attracted some comment: see the comment of Griffiths J in Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 … at [37]. I also note and accept the comments of Logan J in [Singh 274 FCR] at [11] … [19] In light of these matters, the Minister's acknowledgement that the length of a relationship may on its own constitute a "compelling reason" is appropriate. Equally, however, as noted by Griffiths J in [Chhetri [2019] FCA 1026] at [38], the Tribunal is not confined to considering only the matters referred to in the Explanatory Memorandum, but rather those matters are to be weighed with other relevant considerations. 45 These comments must be understood in the statutory context. The statutory task for the Tribunal was to form a view on whether "compelling reasons" existed to justify a waiver of the Schedule 3 criteria. The task required the Tribunal to perform an evaluative exercise on the basis of the material before it. It was not only open to the Tribunal to consider the length of the relationship in the context of the relationship between the Appellant and his sponsor as a whole, the statutory task required the Tribunal to consider the length of the relationship in the context of all of the relevant facts and undertake an evaluative exercise in reaching its state of satisfaction. In determining whether or not there were "compelling reasons", the matters identified in the Explanatory Statement were matters to be weighed with other relevant matters: Chhetri [2019] FCA 1026 at [38] (Griffiths J). 46 Although it may be accepted that the length of the relationship between a sponsor and a visa applicant may justify a conclusion that "compelling reasons" exist for not applying the Schedule 3 criteria, that is not because all other circumstances are to be disregarded. Rather, it may be that, in the particular circumstances, the length of the relationship carries such weight that the decision‐maker is satisfied that "compelling reasons" exist. 47 The Appellant accepted (correctly) that the Tribunal did not err in considering the totality of the circumstances and the nature of the Appellant's relationship with his sponsor. 48 The Tribunal performed the task required of it. The Tribunal's conclusion was reached by balancing the entirety of the circumstances relating to the relationship between the Appellant and his sponsor. The Tribunal expressly recognised that the Appellant first moved into the sponsor's home on 3 March 2015: Tribunal reasons [28]. The Tribunal considered the length of the relationship in the course of its reasons. The Tribunal thus considered the factual premise underlying the Appellant's claim concerning the length of his relationship with his sponsor in a manner that was open to it, in reaching its conclusions. 49 It was not part of the Tribunal's task to reach a state of satisfaction based on the consideration of one matter in isolation and to the exclusion of all other matters, even if (contrary to my view) the Appellant had submitted to the Tribunal that it should undertake such an exercise. The Appellant's submission that the length of his relationship with his sponsor, of itself, constituted a "compelling reason" was not a submission that was required to be separately addressed by the Tribunal in order for the Tribunal to discharge its statutory duty. It was necessary and sufficient for the Tribunal to consider the length of the relationship in its course of reasoning.

Materiality 50 It follows from the foregoing that "materiality" is not an issue. First, as explained above, the submission (recorded at [8], above) that the length of the relationship was, of itself, sufficient to constitute "compelling reasons" was not made. Secondly, even if the submission had been made, the statutory task required of the Tribunal was to assess whether "compelling reasons" existed having regard to all relevant circumstances. That is precisely what the Tribunal did. That statutory task could not be discharged by considering only the length of the relationship between the Appellant and his sponsor and ignoring all other relevant circumstances. It follows that, if the submission had been made, the outcome could not have been different. 51 The proper construction of the Appellant's submission is that the Appellant contended that particular weight should be given to the length of the relationship between the Appellant and his sponsor. It is clear that the Tribunal understood that submission, engaged with it and addressed it in its reasons. It is not for this Court to revisit the Tribunal's assessment of the weight to be accorded to the length of that relationship.

conclusion 52 The appeal is dismissed. The Appellant is to pay the First Respondent's costs of the appeal to be assessed by a Registrar on a lump sum basis if not agreed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.