Le v Minister for Immigration and Border Protection

Tribunal decision 4 On 9 August 2016, the appellant filed an application to review the delegate's decision at the Tribunal. The Tribunal conducted a hearing on 11 May 2017 at which the appellant was represented by his registered migration agent and assisted by a Vietnamese interpreter. In its written decision of 3 July 2017, the Tribunal found that: the appellant did not satisfy the Sch 3 criteria as required by cl 820.211(2)(d)(ii) of the Regulations; there were no compelling reasons to forgo applying these criteria; and the appropriate decision was to affirm the delegate's decision to refuse the partner visa application. 5 That the appellant did not hold a substantive visa was not in dispute and, therefore, the Tribunal determined the correct approach was to first decide whether the Sch 3 criteria were satisfied. The Tribunal noted that to at least meet the requirement of criterion 3001 of Sch 3, the application for the partner visa ought to have been made within 28 days of the cancellation of the appellant's substantive visa on 23 June 2015. The application was not made until 19 April 2016, which I note was approximately nine months after the 28-day time limit had expired. I further note that since criterion 3001 was not made out, the Tribunal was not required to engage with criteria 3004 and 3004. 6 Having established that, overall, the Sch 3 criteria were not met, the Tribunal then assessed the second limb of cl 820.211(2)(d)(ii) of the Regulations, namely whether there were "compelling reasons for not applying those criteria". It noted at [14] of its decision that, although "compelling reasons" is not a defined term, such reasons should be "sufficiently convincing to move the decision-maker to make a positive finding" in favour of not applying the Sch 3 criteria: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 particularly at [10]; see also Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [39], Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [24] and generally Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121. 7 The appellant argued that in his circumstances there were compelling reasons. In summary, he claimed that the Tribunal ought to have regard to: the longevity of his relationship with the sponsor (at [17]); the support he provides to assist with the care of the sponsor's ill mother (at [18]); the fear that he and the sponsor may be unable to sustain their relationship due to financial stress if he were make an offshore visa application (at [19]); the psychological and material hardship that would be suffered by the family unit if the sponsor travelled to Vietnam if the appellant had to apply for a visa offshore (at [20]); the possibility that the sponsor may be unable to meet her mortgage repayments for the "marital home" if the appellant departs Australia (at [21]); the appellant's stressors arising from earlier personal circumstances including the cancellation of his earlier student visa and a previous marriage that involved the birth of a child, an extra-marital affair by his former wife and an eventual divorce (at [22]); and the possibility that the sponsor's mental health and wellbeing may deteriorate if the appellant was unable to be with her (at [23]). 8 In summary, the Tribunal found that: the existence of a genuine and ongoing spousal relationship between the appellant and the sponsor was a basic requirement of the partnership visa (at [17]); the appellant and the sponsor were not the only people in Australia who could support the sponsor's ill mother, as other family members or government services could assist with her care (at [18]); it is not uncommon for parties to partner visa applications to face financial challenges when one member of the relationship is offshore (at [19]); the sponsor is not required to travel outside Australia, and the parties may need to consider making adjustments to their circumstances (at [20]); the sponsor managed the mortgage repayments prior to and during her relationship with the appellant and, though it would be an additional challenge, there was no evidence before it showing that the appellant would be unable to find work offshore to assist with income (at [21]); it was the appellant's responsibility to report changes in his circumstances that would affect his visa eligibility (at [22]); and the sponsor could seek medical assistance during times of stress resulting from separation from the appellant and other factors (at [23]) Accordingly, the appellant's claims did not amount to compelling reasons for not applying the Sch 3 criteria. 9 Overall, the Tribunal concluded at [26]: The Tribunal has considered the evidence individually and as a whole. The Tribunal is not satisfied that there are any compelling reasons for not applying the Schedule 3 criteria. Accordingly, the Tribunal finds that the applicant does not meet cl.820.211(2)(d)(ii). and at [29] affirmed the decision not to grant the partner visa.

Federal Circuit Court proceedings 10 The appellant applied to the Federal Circuit Court for review of the delegate's decision. There were originally four grounds of review; however, only grounds 2 and 3 were pressed at the primary hearing. These grounds were: Ground 2: Jurisdictional Error - The Tribunal failed to consider integers of the Applicant's Claims and thereby fell into error. PARTICULARS The Tribunal failed to consider the applicant's claim and contention amounting to a failure by the Tribunal to exercise its jurisdiction in circumstances where the applicant had a substantial, clearly articulated argument which it were considered could have established a "compelling reason." a) At paragraph 20 the applicant stated as one of its compelling reasons that "the sponsor cannot go to Vietnam because of the processing time of an offshore Partner Visa Application["] and "the family unit would suffer psychological and material hardship should the applicant depart Australia." In response, the Tribunal stated that the sponsor is not required to depart Australia and concluded that the Applicant had not satisfied the Tribunal that this is a compelling reason not to apply the Schedule 3 Criteria b) The Tribunal failed to consider the crux of the Applicant's claim - being that processing an offshore Partner Visa will mean that the couple will be separated for a long time. The Tribunal's response "However the sponsor is not required to depart Australia" failed to take into consideration the Applicant's claim which bordered on potential long-term separation c) Also, an integer of the Applicant's claim in paragraph 20 was that the family unit in Australia will suffer psychological hardship should the Applicant depart Australia. The Tribunal failed to consider this claim for the purpose of assessing whether it constitutes a compelling reason. Ground 3: Jurisdictional Error - The Tribunal misdirected itself and applied the wrong test in construing the regulation leading to a constructive failure to exercise its jurisdiction. PARTICULARS In Paragraph 2 of the Decision Record, the Tribunal noted that the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii). Pt 820.211(2)(d)(ii) provides that in the case of an applicant who does not hold a substantive visa, the applicant must satisfy the criteria described as 3001, 3003 and 3004 in Sch 3 to the Regulations. Application of Sch 3 criteria require that the Applicant satisfy "Sch 3 criteria 3001, 3003 and 3004" unless the Minister is satisfied that there are compelling reasons for not applying those criteria. In Paragraph 12, the Tribunal gave reasons why the applicant did not satisfy criterion 3001. Prior to proceeding to determine whether compelling reasons existed for not applying the criteria, the tribunal failed to determine why and in what way or circumstances the other criteria (being criteria 3003 and 3004) did not apply. If two or more of the criteria are capable of applying to the applicant, then the reasons why each of the relevant criteria do not apply should have been explored. (Original formatting.) 11 In relation to ground 2, the primary Judge observed at [27]-[28] that there was no claim before the Tribunal that suggested or explicitly stated that it would be impossible for the appellant and sponsor to be separated. His Honour also found that it was neither illogical nor unreasonable for the Tribunal to make adverse findings on the evidence before it in respect of the claims of the hardship the parties might suffer as a result of separation. At [29] the primary Judge noted the Tribunal's "real and meaningful engagement" with the appellant's submissions, and concluded that the alleged jurisdictional error was not made out. 12 As to ground 3, his Honour found at [31]-[35] that, having determined in "crystal clear" circumstances that the appellant did not meet criterion 3001, it was "meaningless" for the appellant's former Counsel to maintain that the Tribunal was required to engage in the "artificial unnecessary exercise" of evaluating whether criteria 3003 and 3004 applied. The proposition was held to be "not supported by authority" and "not reasonably arguable." His Honour went so far as to mention in obiter that "[h]ad that been the only ground advanced in the present case, this Court would have had to consider the consequences of s 486E of the Act in respect of both the solicitor for the applicant and counsel for the applicant." 13 The primary Judge therefore dismissed the application for review with costs.

Appeal to the Federal Court 14 On 6 March 2018, the appellant filed a notice of appeal at the Federal Court against the whole of the primary judgment on two grounds. In his written submissions filed 25 July 2018, the appellant stated: 17. At the hearing of the appeal on 9 August 2018, the appellant only presses ground 1 particular (d) in the notice of appeal. The appellant does not press the remaining grounds. 18. The argument advanced below concerning the nature of the jurisdictional error associated with ground 1 particular (d) is not identical to the argument advanced before Judge Street. Where an appellant challenges in the Federal Court a finding of a decision-maker which the appellant challenged at first instance, but on a different basis, the appellant may require leave to raise the varied ground on appeal. 15 Relevantly, ground 1(d) was as follows: Ground 1: Jurisdictional Error - The Tribunal failed to consider integers of the Applicant's Claims and thereby fell into error. PARTICULARS The Tribunal failed to consider the applicant's claim and contention amounting to a failure by the Tribunal to exercise its jurisdiction in circumstances where the applicant had a substantial, clearly articulated argument which, if it was considered, could have established a "compelling reason". … d) Also, an integer of the Applicant's claim was that the family unit in Australia will suffer psychological hardship should the Applicant depart Australia. The Tribunal failed to consider this claim for the purpose of assessing whether it constitutes a compelling reason. (Formatting amended for consistency.) 16 At the hearing however, Counsel for the appellant submitted that the tenor of the appellant's ground of appeal was actually as set out at [25] of his submissions, namely: … the Tribunal did not properly and genuinely consider (in a manner which constituted jurisdictional error) the appellant's claim that: a) the sponsor's mental health condition would deteriorate if the applicant is required to depart Australia to lodge his spouse visa application offshore; and b) the period of time for which the applicant would be offshore during the processing period was unknown. 17 The Minister did not oppose this course of action, and I am prepared to grant the leave sought.

Consideration 18 At the hearing Counsel for the appellant submitted, in summary, that [23] of the reasons of decision of the Tribunal failed to demonstrate engagement by the Tribunal with issues concerning the deterioration of the sponsor's mental health and the possibly indeterminate period of time for which the applicant would be offshore. The appellant relied on WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534, NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1. 19 Insofar as concerns the decision in WZAQU, my attention was drawn in particular to the following paragraphs: 12. In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is "the reality, and not the appearances, which matters": cf. Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in "an active intellectual process directed at that representation or submission": Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462 per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51. Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that "an active intellectual process" was required: [2005] FCAFC 134 at [46] per Hill J; see also [2005] FCAFC 134 at [212] per Madgwick J. … 23. Paragraphs [40] and [41], it is submitted on behalf of the Minister, expose a consideration of the letters dated 10 September 2011 and 14 December 2011. The reference in paragraph [42] to the "letter dated 7 November 2004" is a reference to the letter cited in the 14 December 2011 letter - but only by way of a "web" citation. It is evident, so the Respondent Minister contends, that the Independent Protection Assessor independently accessed that "web" citation and thereby obtained the date of the letter, that date only being available by that means. All of this, submits the Respondent Minister, exposes a detailed consideration of the claims and the materials relied upon. The letter dated 17 October 2011, it is further submitted, is not directed to the claims arising by reason of the now-Appellant's membership of the Ahwazian Community. 24. The difficulty for the Respondent Minister, however, arises not by reason of the Independent Protection Assessor not being aware of the claims being made and the material relied upon; the difficulty arises by reason of the manner in which those claims and materials were addressed and resolved. … 29. The fundamental and fatal difficulty exposed by paragraphs [98] and [99], with respect, is that it remains unclear what claims or what parts of the claims being advanced by the Appellant were being resolved. Reasons for the recommendation of the Independent Protection Assessor, it may be accepted, should not be construed in any overly critical manner: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the Independent Protection Assessor summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable the conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon. (Formatting omitted.) 20 In relation to NAJT my attention was drawn in particular to the following paragraphs in the decision of Madgwick J: 115 The delegate then said: 'On 22 May, 2002 a letter was received from Mr William Wei of the Fa Lun Fo Xue Association of Australia Inc. claiming that the [appellant] is one of 31 genuine Falun Gong practitioners seeking protection in Australia and that she would face serious persecution if she were required to return to China.' 116 I interpolate the full text of Mr Wei's letter on account of the importance I think it had: 'I'm hereby writing to you to express my deep concern about the application for humanitarian protection of one of our fellow Falun Gong practitioners, [the appellant (by name)]. According to the information we have, there are currently about 31 Falun Gong practitioners in Australia who are applying for refugee status. This is the number of genuine practitioners that we have confirmed after careful examination, and they will definitely be seriously persecuted by Jiang's regime if they go back to China. [The appellant (by name)] is the one on the name list of 31 Falun Gong practitioners, which I recently sent to the Hon. Philip Ruddock MP., Minister of DIMA. We sincerely wish DIMA could give sufficient consideration to her application in the process of your assessment.' 117 The delegate at no point provided any reason for depreciating Mr Wei's evidence. … 212 There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration'. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so. (Formatting omitted.) 21 My attention was also drawn in particular to the following paragraphs in Lafu: 46 The Delegate's decision was a privative clause decision: see s 474(2) of the Act. This Court had jurisdiction in relation to the decision: see s 476A(1)(b) of the Act. That jurisdiction was the same as the jurisdiction of the High Court under s 75(v) of the Constitution: see s 476A(2) of the Act. Section 483 of the Act had the effect of excluding the Court's jurisdiction to hear an "appeal" from the AAT in relation to its decision in this case. In order to succeed before her Honour, Mr Lafu had to establish jurisdictional error by the AAT: see Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160; (2008) 171 FCR 345 at [4]. 47 The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge's decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267]. 48 With respect, we consider that her Honour misapplied the statement made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 in inferring from other parts of the AAT's reasons that [124]-[127] were to be read as an engagement by the AAT in an "active intellectual process" (Tickner v Chapman (1995) 57 FCR 451 at 462). The High Court said at the passage referred to (and quoted by her Honour at [22]): ... reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 49 When the allowances called for by this passage are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that "[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value". 50 We do not think that the structure of the AAT's reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu 's case. 51 The Minister submits that [127] is a statement to the effect that, on the facts, general deterrence is a factor that must be given little weight. We do not accept the submission. At that paragraph the AAT was still stating the general position in relation to general deterrence. In Filipo, the comparable paragraph ([86]) authored by the same member was: While deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it should be taken into account, especially in the case of serious gang violence such as occurred here. [emphasis added] The words emphasised in the passage quoted show some application of the member's mind to the question whether, on the facts of Filipo, the particular case, the matter of general deterrence told in favour of a cancellation. Comparable words do not appear in the AAT's reasons for decision in the present case. 52 Arguably, the words "must be taken into account" in [127] of the AAT's reasons in Mr Lafu's case and the words "should be taken into account" in Filipo, mean that the AAT is required as a matter of law to take into account general deterrence as a factor telling against the individual in all cases. It can be accepted that in virtually all cases there would be at least one person other than the visa holder who will learn of a cancellation, so that, at least theoretically, general deterrence will always have some role, even if a miniscule one. We do not think, however, that a bland statement that as a matter of conceptual analysis, general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case, meets the requirements of paras 2.5(c) and 2.11 of Direction 21 set out earlier. Paragraph 2.11 states that general deterrence "may be relevant in a number of ways" and requires a decision-maker to consider and identify whether, and if so, the way in which, it is relevant on the facts of the particular case 53 We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu 's visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]-[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all. 22 Essentially, the appellant claims that, in simply stating that "The Tribunal encourages the [sponsor] to seek assistance from her health professionals during any stress or separation from the applicant" and encouraging the sponsor to seek assistance from her daughters, the Tribunal did not properly, genuinely and realistically consider the issues of mental health and length of separation, and failed to engage in an active intellectual process concerning these matters. The appellant submitted further that if the Tribunal had actively engaged with this claim and the relevant medical evidence, it might have concluded that there were compelling reasons to apply the Schedule 3 criteria. Counsel further submitted that [23] of the Tribunal's reasons for decision did not demonstrate engagement with the medical evidence before the Tribunal. 23 However, it is clear to me that this ground of appeal lacks merit. 24 Clearly the class of what may constitute "compelling reasons" is not closed, and could vary depending on the circumstances of each case. Issues of a compassionate nature are clearly relevant - as Griffiths J observed in Waensila: 56. The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a "strongly compassionate" nature, which include where there are Australian-citizen children from the couple's relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or "compelling reasons" post-date the time of application. (Emphasis added.) 25 The possible deterioration in the mental health of the sponsor in the absence of the appellant is a matter of a "strongly compassionate nature". At [23] the Tribunal discussed in detail the sponsor's medical conditions and referred to the evidence of consultant psychiatrists as well as lay witnesses in relation to the sponsor and the dysfunctionality of the family unit. The Tribunal accepted that the sponsor suffered from the conditions claimed by the appellant, and in that respect accepted the medical evidence on which the appellant relied. As the primary Judge observed, there was extensive engagement by the Tribunal with the possible psychological hardship the appellant's family unit in Australia, including the sponsor, would suffer should the appellant depart Australia. At [20] of its reasons the Tribunal acknowledged the uncertainty of timing for offshore processing, and that it could be of concern for the parties, including requiring them to make adjustments to their circumstances. 26 However it is apparent from the Tribunal's reasons that it was simply not satisfied that this hardship, and any deterioration in mental health which the sponsor could experience, constituted "compelling reasons" in circumstances where the sponsor had medical and family support on which she could rely during the appellant's absence from Australia. This was a finding of fact by the Tribunal. I am not satisfied that the reasons of the Tribunal in this case exhibit an absence of intellectual engagement in the claims of appellant, akin to the circumstances in WZAQU, NAJT or Lafu as claimed by the appellant.

Conclusion 27 The appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.