Luu v Minister for Immigration and Citizenship [2025] FedCFamC2G 1103

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).

1. The applicant is a national of Vietnam who entered Australia in 2015 on a student visa. The applicant applied for a partner visa on 15 December 2017, on the basis of his relationship with his sponsor (Sponsor).
2. On 21 February 2019, the Delegate refused the application.
3. On 8 March 2019, the applicant applied to the Tribunal for review of the Delegate's decision. The applicant attended a hearing before the Tribunal on 14 December 2020.
4. On 14 December 2020, the Tribunal affirmed the Delegate's decision.

1. The Tribunal summarised the relevant criteria and the background to the matter at [1]-[7] of its decision. The Tribunal found that the issue before it was whether the applicant satisfied the Schedule 3 criteria and, if not, whether there were compelling reasons for not applying those criteria: cl 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). For the applicant to satisfy criterion 3001, the application for the visa needed to have been lodged within 28 days of his last substantive visa. As the applicant's student visa had been cancelled some months before his partner visa application, the applicant was unable to meet criterion 3001 (at [4]-[12]).
2. The Tribunal proceeded to consider whether there were compelling reasons for not applying the criterion. The Tribunal accepted that the applicant did not become a non-citizen intentionally nor did he willingly delay the lodgement of his partner visa application. However, the Tribunal did not accept that the applicant was not properly notified of his visa cancellation or that he was denied procedural fairness. The Tribunal did not accept that the circumstances surrounding the cancellation of the applicant's previous visa and the applicant becoming an unlawful non-citizen amounted to a compelling reason for waiver (at [13]-[17]).
3. The Tribunal was prepared to accept that the applicant and Sponsor may be in a genuine long-term relationship. However, the Tribunal did not consider this sufficient to establish the existence of a compelling reason for not applying the Schedule 3 criteria. The Tribunal was not satisfied that the genuineness, mutual commitment, emotional and physical support, continuing nature and longevity of the relationship or the (likely temporary) separation of the applicant and his Sponsor, were compelling circumstances for not applying the Schedule 3 criteria. The Tribunal concluded that it was not satisfied that the relationship was a compelling reason for not applying the criteria (at [18]-[20]).
4. The Tribunal considered that it would be possible for the applicant to communicate by electronic means with the Sponsor and her family and continue, through such means, to provide emotional support. Although the Tribunal accepted that the nature of support would not be the same, the Tribunal was not satisfied that it would be inadequate. The Tribunal considered that the applicant and the Sponsor would be "able to communicate and support each other and rely on each other for comfort and emotional support whether or not they reside in the same country". The Tribunal did not consider that changes to the nature of such support constituted a compelling reason for waiver (at [21]-[23]).
5. The Tribunal was not satisfied that the family were unable to meet their financial obligations on account of withdrawal of the applicant's financial support. The Tribunal was not satisfied that the financial support provided by the applicant in the past, or his aspiration to resume such support in the future, constituted compelling reasons for waiver (at [25]).
6. The Tribunal accepted that the applicant provided certain practical assistance to the family and that the assistance was needed. However, the Tribunal was not satisfied that alternative arrangements could not be made (at [27]).
7. The Tribunal accepted a diagnosis of post-traumatic stress disorder and adjustment disorder, with mixed anxiety and depressed mood, in relation to the Sponsor. The Tribunal accepted that separation of the applicant and the Sponsor may affect the Sponsor's health. However, the Tribunal did not accept that the Sponsor's condition was of such nature and severity that "any adverse effect" from the separation would, in the Sponsor's particular circumstances, constitute a compelling reason for the waiver (at [26]-[31]).
8. The Tribunal accepted that the applicant's departure from Australia was likely to cause a certain degree of hardship to the family. The Tribunal considered that the needs of the Sponsor's baby brother would be met, however, whether or not the applicant's support was withdrawn. The Tribunal was not satisfied that such interests would be significantly affected if waiver were not granted (at [32]).
9. The Tribunal did not consider that the applicant's desire to remain in Australia and his reluctance to return to his home country constituted compelling reasons for the waiver. Nor did the Tribunal accept that the couple's desire to have a baby or purchase a property in the future constituted compelling reasons (at [34]-[35]).
10. The Tribunal concluded at [36]:
    1. The Tribunal has considered the totality of the circumstances singularly and cumulatively. Overall, the Tribunal accepts that the sponsor has been diagnosed with a condition and that the applicant provides help and support to her, as well as general support to the sponsor's family. The Tribunal accepts that the sponsor's condition may be affected if the applicant was to leave the country and that the family will experience a degree of hardship if that was to occur. However, the Tribunal has formed the view that the applicant will be able to continue to provide emotional support to the sponsor and the family. The Tribunal has formed the view that the best interests of the sponsor's brother would not be adversely affected if the waiver is not applied. The Tribunal has formed the view that the circumstances put forward by the applicant, whether considered singularly or cumulatively, are [in]sufficiently convincing to move the Tribunal to exercise its discretion to waive the requisite criteria or sufficiently powerful to lead the Tribunal to make a positive finding in favour of waiving the required criteria.
11. Having regard to the above, the Tribunal found that that the applicant was unable to meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations. Accordingly, the Tribunal affirmed the Delegate's decision (at [37]-[39]).

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 12 January 2021. The matter remained in the central migration docket for some years and was docketed to another Judge before being allocated to my docket more recently and listed for hearing. The following sole ground of review was ultimately pressed:
   1. The Second Respondent (the Tribunal) failed to properly consider relevant evidence.

Particulars

1. The Applicant relied on evidence including a psychological report prepared by Dr Sandra Nguyen in respect of his sponsor... in support of his application for review, in which the central issue was whether there were compelling reasons to waive the Schedule 3 criteria for the purposes of cl.820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth).

b. In her report, Dr Nguyen found that among other things:

1. [The Sponsor] suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood;
2. That her condition was a result of unwanted memories and nightmares of having suffered sexual abuse at the hands of a family friend as a child and having witnessed the murder of a former boyfriend;
3. That [the Sponsor] was struggling to cope with her fear and anxiety of being separated from the Applicant;
4. That from a psychological perspective, it was very common for children to disassociate when they experience trauma as a coping mechanism, which [the Sponsor] seemed to have done; and
5. That [the Sponsor] tried to cope with her trauma on her own as she did not consider her mother to be emotionally available to her.

   1. The Tribunal, at [31] of its decision, found that [the Sponsor]'s condition was not of such nature and severity that any adverse effect caused by her separation from the Applicant would constitute a compelling reason to waive the Schedule 3 criteria.

d. In making the findings referred to above at (c) the Tribunal:...

1. Failed to have proper regard to the nature of the abuse suffered by [the Sponsor] and its consequential impact on [the Sponsor].
   1. The matters referred to above at (a)-(d) were material to the Tribunal's findings in determining not to waive the Schedule 3 criteria. Consequently the Tribunal's decision was affected by jurisdictional error.

1. The Tribunal considered Dr Nguyen's report at [26]-[31] of its decision. The Tribunal's reasoning in those paragraphs included the following:
   1. In his submission to the Tribunal the applicant refers to the sponsor's past and present mental health. The applicant states that the sponsor had been subjected to abuse in the past and tried to overcome it by herself but had recently sought help because she was distressed about him having to leave the country. The applicant provided to the Tribunal a psychological report from Dr Nguyen and states that the sponsor's mental health issues have become more severe. The applicant states that the sponsor relies on his support to maintain family structure and safety. As noted above, the Tribunal is of the view that care and support can be provided even when the parties are geographically separated, even in the specific circumstances such as those that arise here where the sponsor claims to have suffered from a particular trauma that had affected her mental health...
   2. The Tribunal has considered the report of Dr Nguyen. The Tribunal considers it significant that the sponsor saw the psychologist in October 2020, shortly before the Tribunal hearing, and the report indicates that the referral for psychological assessment was done in relation to the applicant's visa application. The applicant's evidence is that the sponsor has not sought treatment previously and he told the Tribunal that his wife was worried about his visa and possible separation and for that reason she sought professional support. However, the Tribunal is mindful that the visa application was made some three years ago and at that time the applicant was aware of the Schedule 3 issue. The applicant did not present any medical evidence relating to the sponsor at the time of making the application. There was also an obvious possibility of separation once the applicant's visa application was refused, and the sponsor did not seek professional help at the time. It was not until the present hearing that the sponsor sought support from the health professional, apparently to assist the applicant with this visa application.
   3. The sponsor told the Tribunal that she did not seek treatment earlier, or since seeing Dr Nguyen three times, because of the high cost. But she also told the Tribunal she has not explored Medicare-funded treatment and had not explored her options with a GP or another health professional. It appears that, having obtained the report for the benefit of the present review, the sponsor determined that no further treatment was required. The Tribunal is concerned that the failure to seek treatment before October 2020 or since the report was written, is not consistent with the parties' claims about the nature of the sponsor's condition and her reliance on the applicant.
   4. The Tribunal is mindful that Dr Nguyen's report refers to the self-reporting questionnaires such as K10, PCL and DASS 21. The Tribunal has formed the view that the sponsor approached Dr Nguyen in order to assist the applicant with the visa application. In such circumstances, the Tribunal considers any self-reporting to be opportunistic and self-serving.
   5. Nevertheless, the Tribunal accepts Dr Nguyen's diagnosis of post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. The Tribunal also acknowledges Dr Nguyen's support for the applicant to remain in Australia based on the psychological effect it would have on the sponsor, should the separation occur. It is not apparent form the report that Dr Nguyen considered the nature of the separation and, importantly, that any such separation is more likely to be temporary than permanent, should the applicant make another visa application in the future. The Tribunal accepts that separation of the applicant and the sponsor may affect the sponsor's health. However, in circumstances where the sponsor saw Dr Nguyen on three occasion and had not sought professional treatment or support earlier or since the report was prepared, the Tribunal does not consider that the sponsor's condition is of such nature and severity that any adverse effect that separation from the applicant may cause would, in the sponsor's particular circumstances, constitute a compelling reason for the waiver.
2. The applicant contended that the Tribunal had not attempted to engage with the facts of the claim of abuse made by the Sponsor, but had simply dismissed it because it had not been raised earlier. I accept the Minister's submission that this does not accurately convey the approach that was taken by the Tribunal. The Tribunal did not, as was suggested by the applicant, simply reject the claim on the basis of "recent invention". The Tribunal did not, at least expressly, reject the claim at all.
3. However, it is apparent from the above extracts from the Tribunal's decision that the timing of the Sponsor's engagement with Dr Nguyen informed the Tribunal's unwillingness to accept that the Sponsor's condition was of the "nature and severity" claimed. In this regard, the Tribunal was concerned that (a) the Sponsor had not sought treatment earlier, and (b) the Sponsor had not demonstrated ongoing treatment.
4. As was submitted by the applicant, the problem with the Tribunal's reliance upon the Sponsor's failure to seek treatment earlier was that Dr Nguyen's report also provided a potential explanation for the Sponsor's delay in seeking treatment and reporting the abuse. In this regard, the applicant relied upon various parts of Dr Nguyen's report. Most notably, the applicant relied upon the following extracts:
   1. ... She never informed her mother or the police. She never disclosed this trauma to anyone else until now... When asked why she had not disclosed her experiences to sexual abuse to Mr Luu, [the Sponsor] stated that she wanted to forget about her past, block them out and not think about them. She explained that it has been her coping mechanism to help her manage her trauma...
   2. ... From a psychological perspective, it is very common for children to disassociate when they experience trauma, which [the Sponsor] seemed to have done. This acts as a coping mechanism to help a child cope as their psyche is unable to deal with the trauma at the time...
   3. ... [The Sponsor] acknowledged that she has not disclose[d] her experiences of sexual abuse to him or to anyone else besides myself. This significant trauma has been very difficult for her to acknowledge and face head on. She continues to use her dissociative coping strategy to deal with her emotions, which was evident in the assessment sessions.
5. As the applicant submitted, this evidence was centrally relevant to the Tribunal's decision. The Tribunal's concern that the Sponsor had not sought treatment earlier was referenced in a number of paragraphs of the Tribunal's decision. Dr Nguyen's evidence about dissociation provided a potential explanation for the delay.
6. I accept, as the Minister submitted, that the report did not directly state that the Sponsor's dissociative coping strategy was the reason why the Sponsor did not seek psychological help until October 2020. I also accept that the Sponsor provided other reasons for not seeking treatment that were considered by the Tribunal (such as cost). However, the evidence relied upon in Dr Nguyen's report provided a further explanation for the delay by the Sponsor in seeking treatment.
7. I do not accept the Minister's submission that an inference should be drawn that the Tribunal had regard to the entirety of Dr Nguyen's report, including the evidence in question. I accept that the Tribunal stated that it had considered the report (at [28]). However, this is not determinative of whether the Tribunal considered the particular parts of the report relied upon by the applicant. Although I accept that the Tribunal referred to other parts of the report in some detail, it is difficult to understand why the Tribunal made no reference to the parts relied upon by the applicant if those parts had been considered. This is within the context of the Tribunal's reasons for decision. It is apparent from the Tribunal's reasons that the fact that the Sponsor had not sought treatment earlier was of substantial concern to the Tribunal. In these circumstances, it seems likely that the Tribunal would have referred to the potential explanation provided for this in the report, had the relevant parts of the report been considered.
8. Having regard to the above, I accept the applicant's submission that the Tribunal did not consider evidence that was centrally relevant to its decision. The Tribunal thereby fell into the species of error considered in cases such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) (Robertson J). Jurisdictional error has been demonstrated on this basis.
9. In coming to this conclusion, I have not accepted the Minister's submission that any error in this regard was immaterial because the Tribunal was also concerned by the Sponsor not seeking subsequent treatment. As set out above, it is apparent that both this concern and the Tribunal's concern that treatment had not been sought earlier informed the assessment undertaken by the Tribunal. If the Tribunal had considered the disassociation evidence in relation to the latter concern, then it is possible that the Tribunal's assessment may have been different.
10. At the hearing of this matter, the applicant contended that the Tribunal also did not consider evidence regarding:

(a) the sexual abuse claimed to have been suffered by the Sponsor;

(b) evidence in Dr Nguyen's report about the need for the applicant's physical presence in Australia; and

(c) evidence of context regarding the report.

1. I have not been persuaded that these submissions are capable of demonstrating jurisdictional error on the part of the Tribunal.
2. Although the Tribunal did not expressly refer in detail to the nature of the abuse, it considered the abuse in its decision (at [26]-[31]). It is apparent, from context, that this was the type of abuse that was considered by the Tribunal. Although the Tribunal did not make a clear finding on whether the abuse occurred, I have not been persuaded that the Tribunal was required to do so. It was the Sponsor's condition and the potential effect of her separation from the applicant that were raised as compelling reasons for not applying the Schedule 3 criteria. These matters were considered by the Tribunal. Although, as found above, that consideration was affected by error, I am not persuaded that the Tribunal failed to consider the claims that had been made regarding the nature of the abuse (as distinct from the disassociation evidence).
3. I accept that Dr Nguyen's report included evidence supporting the Sponsor's need for the applicant's physical presence in Australia. It is apparent from the report that Dr Nguyen was concerned about the impact upon the Sponsor if she were physically separated from the applicant. However, I am not persuaded that this evidence was overlooked by the Tribunal. Rather, the Tribunal appears to have placed limited weight on this evidence by reference to the concerns that it identified at [26]-[31] of its decision. Having regard to those concerns and the Tribunal's consideration that some level of support could be provided remotely, the Tribunal did not accept that the Sponsor's condition was "of such nature and severity that any adverse effect that separation from the applicant may cause would, in the sponsor's particular circumstances, constitute a compelling reason for the waiver" (at [31]).
4. I am also not persuaded that the Tribunal overlooked the context of the report. At the hearing, the applicant raised that the report had been provided following an invitation by the Tribunal to provide documents and after the applicant had engaged a new representative. However, this did not necessarily answer the Tribunal's concerns about why treatment had not been sought earlier or subsequently. I was not taken to evidence of these aspects of the context having been submitted by the applicant to the Tribunal as an explanation for why treatment had not been sought earlier by the Sponsor. I am not persuaded that the Tribunal was obliged to reason in the manner suggested by the applicant, nor that a failure to do so warrants an inference being drawn that these aspects of the report's context were not considered.
5. However, for the reasons given above, I accept that the Tribunal's reasoning in relation to the report demonstrates that the disassociation evidence was not considered. On this basis, I accept that jurisdictional error has been demonstrated.

1. For the above reasons, the application before the Court succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.