Minister for Immigration and Citizenship v Singh [2026] FCAFC 42

... Further, while the Tribunal notes the applicant and his wife's concern regarding the tensions between Pakistan and India, there is no evidence that either the applicant or his wife actually faces any personal threat to their well-being should either travel and stay in India. The claims by the applicant's wife that the Indian authorities might refuse her a visa (to enter India because she is Pakistani) or that they would suspect her of being a "spy", have been made without any corroborative evidence whatsoever. In these circumstances, and having considered the other circumstances outlined above, the Tribunal finds that none is so forceful a circumstance such that it compels the Tribunal to not apply the Schedule 3 criteria.

In respect to the parties "fertility concerns," and the lengthy timelines the parties may have to wait should for [sic] the processing of the applicant's partner visa application offshore, the Tribunal notes the applicant's wife is able to travel abroad to join him, as it has found, (and while she is free to join him in India, the parties may also travel to a "third-country". The parties are presently free under Australian law to seek exemption(s) to travel, or utilise the existing "extended period of stay" provisions for the applicant's wife to join the applicant abroad should they wish to do so. Combined, because of the options the parties have to be together, even should they reside temporarily in different countries, the Tribunal has not found these circumstances so forceful such that they compel the Tribunal, in this case, to not apply the Schedule 3 criteria.

(Emphasis added.)

1. Mr Singh's argument focusses particularly on the italicised passage. The parties agree that the reference to "exemptions" was to exemptions to travel restrictions imposed by the Australian government in response to COVID-19, and that the reference to "extended period of stay" provisions was to requirements under the laws of India.
2. The primary judge held that the Tribunal did not make a positive finding that Ms Roberts would be granted a travel exemption or that she would be eligible under the Indian "extended period of stay" provisions. The reasoning and conclusion of the primary judge in relation to this issue were correct.
3. The Tribunal's reasons should not be read as making a finding that Mr Singh's wife, Ms Roberts, would be granted a travel exemption, or that she would be given permission to remain in India pursuant to "extended period of stay provisions". In the context of [51] of the Tribunal's reasons, the statement in [52] that Ms Roberts was "free to join him in India" was a reference to its earlier rejection of the submission, advanced by Mr Singh, that Ms Roberts would not be able to obtain a visa to join him in India because she was a citizen of Pakistan. As the preceding paragraph made clear, that submission was rejected because Mr Singh had advanced no corroborative evidence to support it.
4. The sentence in the Tribunal's reasons (at [52]) which immediately follows the statement which is the focus of Mr Singh's submission recognised that the prospect of Ms Roberts being able to obtain a travel exemption or to utilise the extended period of stay provisions was something that "the parties" (meaning Mr Singh and Ms Roberts) were "free ... to seek". In that context, the Tribunal's reference to "the options the parties have to be together" is to be understood as a reference to the potential options available to Mr Singh and Ms Roberts to pursue opportunities to see each other during any period while any offshore visa application made by Mr Singh was under consideration. It was not an assessment of the feasibility of those options. In circumstances where those "options" were available, the Tribunal found that the circumstances of Mr Singh and Ms Roberts were not "so forceful" that the Tribunal would find them to amount to "compelling circumstances" not to apply the Schedule 3 criteria.
5. The Tribunal was not required to make a finding as to whether Ms Roberts would be able to obtain a travel exemption or whether she would be permitted to access extended stay provisions, in circumstances where Mr Singh had not advanced evidence in support of those contentions. There was nothing irrational, illogical or unreasonable in determining that the circumstances (for not applying the Schedule 3 criteria) were not "compelling" on the basis of the availability of a recourse, in the absence of a positive determination as to the outcome of that recourse.
6. It is to be recalled that the Tribunal was considering whether it was "satisfied" that there were compelling reasons not to apply Schedule 3 criterion 3001. If the Tribunal was not positively so satisfied, given that Schedule 3 criterion 3001 was not satisfied, it was required to refuse to grant Mr Singh a Subclass 820 visa. Mr Singh did not advance any evidence suggesting that Ms Roberts would not be granted a travel exemption, or that the Indian government would not permit her to access extended period of stay provisions. The interpretation of the Tribunal's reasons which the primary judge accepted is consistent with the assessment that the Tribunal was required to make.
7. Mr Singh contends that the present case is comparable to Chan v Minister for Immigration and Border Protection [2018] FCA 1323. However, in that case, the sponsor had given evidence that he had a medical condition which could be exacerbated by the stress of separation from the visa applicant, and that he had seen a doctor who had prescribed medication for a medical condition. The Tribunal made a finding that the sponsor's medical condition "appeared to be responding to medication". There was no basis for that finding of fact, and it was held that the finding was irrational, and gave rise to jurisdictional error. In contrast, in the present case, on the construction of the Tribunal's reasons which we favour, the Tribunal did not make any express finding that Ms Roberts would receive a travel exemption.
8. Mr Singh also relied on an analogy with the reasoning of Charlesworth J in ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 at [46]- [52]. In that case, the Tribunal considered country information that indicated that persons who were returned to Sri Lanka after departing in breach of Sri Lankan immigration laws were routinely granted bail if a family member could provide surety. The Tribunal found that there was a possibility that the appellant would be held for a period of up to a fortnight while awaiting bail. Justice Charlesworth held that it was a jurisdictional error for the Tribunal to find that the duration of the appellant's detention would be for a relatively brief period, in circumstances where there was no evidence to support what Charlesworth J found to be an implicit assumption that he had a family member who would provide surety for bail. The decision demonstrates that a decision may be illogical or unreasonable if the reasons in support of it depend on a factual assumption that is not supported by evidence. In the present case, however, for the reasons given above and by the primary judge, the Tribunal's reasons should not be understood as making a positive finding that Mr Singh would receive a travel exemption or that extended stay provisions would apply to Ms Roberts.
9. For these reasons, grounds 1-3 of the notice of contention should be rejected.

(a) the primary judge was correct to hold that cl 820.211(2)(d)(ii) of Sch 2 to the Regulations is not invalid;

(b) the primary judge erred in holding that the Tribunal's decision was affected by jurisdictional error because it confined its consideration to whether the requirement in Schedule 3 criterion 3001 was met and whether the Tribunal was satisfied that there were compelling reasons for not applying that criterion, and failed to consider Schedule 3 criterion 3004; and

(c) the primary judge was correct to hold that the Tribunal's decision was not based on a finding for which there was no evidentiary basis.

1. It follows that the appeal should be allowed. Orders 3-5 made by the primary judge should be set aside. In lieu of those orders, orders should be made dismissing the application for judicial review with costs. Mr Singh should pay the Minister's costs of the appeal. Given that the appeal has succeeded on a question of law, we will make orders enabling Mr Singh to consider whether to apply for a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, McDonald and Younan.