Okeke v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 477

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 13 November 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 October 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. The criteria for a subclass 820 partner visa are contained in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 820.211(2) relevantly provides:

An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

(c) the applicant is sponsored:

(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; and

(ii) if the applicant's spouse has not turned 18 - ... ; and

(d) in the case of the applicant who is not a holder of a substantive visa - either:

(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B) satisfies Schedule 3 criterion 3002; or

(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

1. The term "spouse" in cl 820.211(2) is defined in s 5F of the Act as follows:

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c) the relationship between them is genuine and continuing; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

1. Criterion 3001 in Schedule 3 to the Regulations provides that "the application is validly made within 28 days after the relevant day", with the "relevant day" relevantly defined as "the last day when the applicant held a substantive or criminal justice visa".

1. On 8 February 2018, the applicant lodged an application for a Partner (Temporary) (Class UK) (subclass 820) visa.
2. On 19 March 2019, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not meet criterion 3001, the delegate was not "satisfied that there are compelling reasons for not applying" criterion 3001, and therefore the applicant did not satisfy cl 820.211(2)(d).
3. On 26 March 2019, the applicant applied to the Tribunal for review of the delegate's decision.
4. On 16 September 2020, the Tribunal invited the applicant to attend a hearing on 14 October 2020, via Microsoft Teams.
5. On 14 October 2020, the applicant appeared at the Tribunal hearing, assisted by his representative, to give evidence and present arguments.
6. On 20 October 2020, the Tribunal affirmed the decision under review not to grant the applicant a subclass 820 partner visa.

1. The Tribunal at [23] noted that the issue in the present case was, with reference to cl 820.211(2)(d) of Schedule 2, whether the applicant met the relevant Schedule 3 criteria and, if not, whether there were compelling reasons for not applying those criteria.
2. The Tribunal, after finding at [28] that the applicant did not satisfy criterion 3001, commenced considering at [29] whether there were compelling reasons for not applying the Schedule 3 criteria.
3. The Tribunal at [31]-[33] considered whether there were circumstances beyond the applicant's control. The Tribunal did not accept there were circumstances beyond the applicant's control.
4. The Tribunal at [34]-[35] considered the relationship between the applicant and sponsor. The Tribunal accepted the parties were in a long-standing relationship.
5. The Tribunal at [36]-[40] considered the psychological condition of the sponsor and whether the sponsor would suffer if the applicant were to leave Australia. The Tribunal at [39] concluded that it was not satisfied that the sponsor would suffer severely from having the applicant absent from Australia.
6. The Tribunal at [41]-[44] considered the applicant's claim that he was a carer for the sponsor's son and this was a compelling reason. The Tribunal, after doubting the applicant's claim that he was a carer for the sponsor's son, found at [44] that it was not satisfied that the reasons claimed by the applicant in relation to the sponsor's son were compelling.
7. The Tribunal at [45]-[48] considered the financial impact of the applicant's absence on the sponsor. The Tribunal was not satisfied that the potential change to the sponsor's financial situation was such that it constitutes a compelling reason for not applying the Schedule 3 criteria.
8. The Tribunal at [49]-[52] considered the applicant's claim that he faced danger if were sent back to Nigeria. The Tribunal was not satisfied these were compelling reasons.
9. The Tribunal at [53], "having considered and weighed up all the evidence and the applicant's circumstances singularly and cumulatively, [was] not satisfied that there are compelling reasons for not applying the Schedule 3 criteria".

Judicial review application and procedural orders

1. On 13 November 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision. On 3 March 2025, the applicant filed a second amended application (Amended Application) which included three grounds as follows (as written):
   1. The Tribunal failed to exercise jurisdiction due to non-assessment of the genuineness of the parties' relationship (para 34 of the decision record).
   2. The Tribunal misdirected itself and conducted a flawed legal analysis by failing to interpret clauses - 3004(c) and 3004(d) as distinct clauses, resulting in jurisdictional error.
   3. The Tribunal failed to accord the applicant procedural fairness by ignoring or minimising relevant materials, failing to properly consider the evidence, adopting a narrow interpretation of 'compelling reasons' and ignoring established case law principles.
2. On 26 February 2025, the applicant filed a written submission (AS). On 5 March 2025, the first respondent filed a written submission.

1. At the hearing on 10 March 2025, Isaiah Okorie, solicitor, appeared for the applicant. Mr Okorie had no involvement in the matter on behalf of the applicant until January 2025. Greg Johnson of counsel appeared for the first respondent. A Court Book (CB) containing the Tribunal's decision and documents before the Tribunal was tendered. Mr Okorie and Mr Johnson made oral submissions which supplemented their written submissions.

1. The Tribunal at [23] stated that the issue before it was "whether the applicant meets the relevant Schedule 3 criteria and, if not, whether those criteria should not be applied". The Tribunal at [28] found that the applicant did not meet criterion 3001. Clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations provided as a time of application criterion that "the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria". In this context, the Tribunal at [29]-[52] considered whether there were compelling reasons for not applying criterion 3001.
2. In considering whether there were compelling reasons for not applying criterion 3001, the Tribunal at [34]-[35] stated:
   1. Although the Tribunal expressed concerns at hearing over the complete lack of evidence to show that the parties were in a genuine relationship since the delegate's decision, it has chosen to not make a finding on whether the parties' relationship is genuine and continuing. The Tribunal notes in this regard that a genuine relationship between the parties would not, of itself, satisfy it that compelling reasons exist for not applying the Schedule 3 criteria - not least because a necessary criterion for the grant of a partner visa under cl. 820.211(2)(a) and cl. 820.221(1)(a) is that the applicant be the spouse of the sponsor which requires a finding that the relationship between the parties be genuine and continuing (among other things). Moreover, while there may be some level of hardship experienced by parties who are separated due to the applicant applying for a partner visa offshore, such separation is common to most if not all parties in this situation and, to be frank, it would be unusual if there were not some level of hardship involved in parties to a genuine relationship needing to separate for a period. In this way, the fact of separation or even the hardship involved would not, of itself, satisfy the Tribunal that compelling reasons exist for not applying the Schedule 3 criteria, and there would need to be something about that separation or hardship that made it so.

Long-standing relationship

1. Although the Tribunal has above chosen to not make a finding on the genuineness of the parties' relationship, it must be mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl. 10. A cursory glance over the evidence of the parties' claimed relationship shows that they claim to have met in May 2016 and to have married in September 2017. They claim to have committed to a shared life together to the exclusion of all others in September 2017. Assuming for present purposes that their relationship was and continues to be genuine, the Tribunal finds that the parties had most likely been in such a relationship for a period of around one-and-a-half years in February 2018 when the visa was applied for. With the passage of time between the date of application and now, the parties' relationship has continued for over four years. Notwithstanding that the Tribunal accepts for present purposes that the parties' relationship is a long-standing one, it is not satisfied that this fact alone amounts to compelling reasons for not applying the Schedule 3 criteria. Other incidents of the separation and hardship, either individually or cumulatively, must cause the Tribunal to be satisfied that those compelling reasons exist. These are explored below.

1. It is contended in ground 1 that the Tribunal was required to assess "the genuineness of the parties' relationship" and its failure to do so involved a jurisdictional error. Mr Okorie has not identified any Federal Court or other court decision in support of this contention. Mr Okorie's written and oral submissions, beyond asserting that the Tribunal erred by not assessing the genuineness of the relationship between the applicant and sponsor, did not explain why the Tribunal was required to assess the genuineness of the relationship between the applicant and sponsor. With reference to the definition of "spouse" in s 5F of the Act, Mr Okorie did not explain why the Tribunal was required to assess and determine whether the relationship between the applicant and sponsor was "genuine" within the meaning of s 5F(2)(c), but not assess and determine any other component of the definition of "spouse".
2. It is stated at AS [26] that the "ongoing relationship was directly relevant to the assessment of compelling reasons". I agree. However, the Tribunal at [35] and in subsequent paragraphs had regard to the relationship between the applicant and sponsor in deciding whether there were compelling reasons for not applying criterion 3001. That the relationship between the applicant and sponsor was relevant to an assessment of whether there were compelling reasons for not applying criterion 3001 does not explain why the Tribunal might be required to determine whether the relationship was "genuine" within the meaning of s 5F(2)(c).
3. The applicant must persuade the Court that, based on principles of statutory construction, probably including the principle explained in paragraph (b) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 39-40, the Tribunal was required to "consider" (Peko-Wallsend at 39), and therefore "assess" (ground 1 of Amended Application) as a step towards considering, "the genuineness of the parties' relationship". The applicant has not persuaded the Court of this matter.
4. Ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. Criterion 3004 of Schedule 3 to the Regulations provides in part:

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 ...

1. It is stated at AS [32] that "the Tribunal essentially conflated [cl 3004(c) and (d)], leading to an incorrect decision". It is stated at AS [35] that "the Tribunal's failure to interpret cl 3004(c) and (d) as distinct criteria made it fall into error".
2. The Tribunal did not make any findings concerning cl 3004. Mr Okorie did not identify any paragraph of the Tribunal's decision which contained the error asserted in ground 2. I agree with the first respondent's written submission that this "ground is misguided".
3. Ground 2 does not identify a jurisdictional error in the Tribunal's decision.

1. As is apparent from the following paragraphs of this judgment:

(a) Under the banner of ground 3, Mr Okorie, in AS [42]-[67], made multiple assertions of errors in the Tribunal's decision.

(b) Mr Okorie did not, with reference to the Tribunal's findings and reasons in support of its findings, explain the asserted errors.

1. The following paragraphs address most of the assertions in AS [42]-[67]. I have considered all the assertions, even if I have not responded to every assertion in this judgment.

1. It is contended in ground 3 that the Tribunal failed to accord the applicant procedural fairness by "ignoring or minimising relevant materials". The applicant's written submission developed this contention in a number of ways which are addressed in the following paragraphs.
2. It is asserted at AS [43] that the Tribunal "dismissed key pieces of evidence that demonstrated the sponsor's reliance on the applicant ... including medical reports, financial dependency documents and statutory declarations". Mr Okorie did not identify the evidence asserted to have been "dismissed" in any more detail, or identify findings of the Tribunal in which it erroneously" dismissed the "key pieces of evidence". I am not persuaded that this assertion identifies a jurisdictional error in the Tribunal's decision.
3. It is asserted at AS [44] that the Tribunal "summarily minimised" two medical reports which detailed the sponsor's psychological conditions. The meaning of this complaint is unclear. The Tribunal carefully considered the sponsor's psychological condition at [36]-[39], including "a psychologist's report from March 2019": at [36]. That the Tribunal at [40] was "not satisfied that the applicant has made out compelling reasons" arising from the sponsor's psychological conditions does not mean the Tribunal erred in dealing with the evidence. This complaint does not identify a jurisdictional error in the Tribunal's decision.
4. It is asserted at [45] that the Tribunal "disregarded" "substantial financial support" provided by the applicant to the sponsor allegedly evidenced in "joint financial documents, including bank statements and utility bills". Mr Okorie did not in his written or oral submissions identify any of the alleged evidence. The Tribunal at [45]-[48] considered the financial impact of the applicant's absence on the sponsor. In considering this matter, the Tribunal at [45]-[46] recorded the applicant's claim "that he gives the sponsor 70 per cent of his money through bank transfers and cash", but noted that the claim "suffers from having little if any substantiating evidence" and "there is no evidence to show that he gives the sponsor 70 per cent of his money as claimed by him". Mr Okorie, beyond the broad assertions at AS [45], has not identified a particular financial document which the Tribunal disregarded. I am not persuaded this assertion identifies a jurisdictional error in the Tribunal's decision.
5. It is asserted at [46] that the Tribunal "dismissed the financial hardship claims without requesting further clarification or additional documentation, thereby failing to give the applicant a chance to address perceived deficiencies in the evidence". Reliance is placed on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL). The Tribunal has an obligation, through s 360 of the Act, to notify an applicant of "the issues arising in relation to the decision under review". Mr Okorie appears to contend that an issue arising in relation to the decision under review was "perceived deficiencies in the [applicant's] evidence". However, such a contention is inconsistent with the proposition in SZBEL at [48] that "procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given". This matter does not identify a jurisdictional error in the Tribunal's decision.
6. It is asserted at [48] that the Tribunal "minimised the sponsor's emotional reliance on the applicant". This assertion does not identify a jurisdictional error in the Tribunal's decision.
7. It is asserted at [49] that the Tribunal "erroneously disregarded the applicant's role as a caregiver and provider for his sponsor and her son". However, the Tribunal at [41]-[43] considered the applicant's claim that he was a carer for the sponsor's son and at [45]-[46] considered the applicant's claim that he provided financial support to the applicant. I do not accept that the Tribunal "disregarded" these claims by the applicant and the applicant's evidence in support of these claims.

"adopting a narrow interpretation of 'compelling reasons'"

1. It is contended in ground 3 that the Tribunal failed to accord the applicant procedural fairness by "adopting a narrow interpretation of 'compelling reasons' and ignoring established case law principles". The applicant's written submission developed this contention in a number of ways which are addressed in the following paragraphs.
2. It is asserted at AS [51] that the Tribunal "adopted an overly narrow interpretation of 'compelling reasons'". However, Mr Okorie did not explain, with reference to the Tribunal's reasons, the manner in which the Tribunal adopted an overly narrow approach. It is also asserted at AS [51] that the Tribunal "fail[ed] to assess the applicant's circumstances holistically". However, the Tribunal's reasons for decision indicate that the Tribunal, as stated at [53], "considered and weighed up all the evidence and the applicant's circumstances singularly and cumulatively". The assertions at AS [51] do not identify a jurisdictional error in the Tribunal's decision.
3. It is asserted at AS [53] that the Tribunal failed to consider "the cumulative impact of all relevant circumstances" in determining whether there were compelling reasons. Again, the Tribunal's reasons for decision indicate that the Tribunal, as stated at [53], "considered and weighed up all the evidence and the applicant's circumstances singularly and cumulatively".
4. It is asserted at AS [54] that the Tribunal "did not give sufficient weight to the unique circumstances surrounding the applicant's relationship with his Australian citizen sponsor ... and the hardship they would face due to separation". It is clear from the Tribunal's reasons for decision that it considered the applicant's relationship with the sponsor and the alleged hardship they would face due to separation. The "weighing of various pieces of evidence is a matter for the Tribunal": Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33]. That the Tribunal was not persuaded by the applicant's evidence concerning these matters is not a jurisdictional error.
5. It is asserted at AS [55] that the Tribunal "ignored the emotional support and stability the applicant provides to his child". However, the Tribunal considered the applicant's claims and evidence concerning this issue under the heading "The Sponsor's son" at [41]-[43]. The Tribunal did not ignore the applicant's claims and evidence.
6. It is asserted at AS [59] that the Tribunal "erred at paragraph 35 in failing to give reason as to why the applicant's long-standing relationship with his then spouse ... does not amount to compelling reasons". The Tribunal's reasons at [35] are set out in paragraph 25 above. A failure to give reasons in support of a finding is not, without more, a jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. In any event, the Tribunal at [34]-[35] gave reasons to explain why the parties' long-standing relationship alone did not amount to compelling reasons.

1. It is contended in ground 3 that the Tribunal failed to accord the applicant procedural fairness by "failing to properly consider the evidence". The applicant's written submission developed this contention in a number of ways which are addressed in the following paragraphs.
2. It is asserted at AS [62] that "the Tribunal dismissed the applicant's contributions to the child's welfare as non-essential, which constitutes a failure to properly consider the evidence". The meaning of this contention is not clear. The Tribunal at [41]-[43] considered the applicant's claims and evidence that he was a carer for the sponsor's son. The Tribunal did not find that the applicant's contributions were "non-essential". Instead, the Tribunal at [43] doubted that the applicant was a carer for the sponsor's son.
3. It is asserted at AS [63] that "the Tribunal erred and misdirected itself when it stated that the applicant missing his biometric testing for an earlier protection visa due to factors beyond his control was irrelevant". The Tribunal at [10] recorded that it asked the applicant why there were circumstances beyond his control for not lodging the partner visa application within time, and the applicant replied that "after he had lodged the first protection visa application he had not heard from the Department about the biometric testing but then received an email to say that his visa had been cancelled", and "he then lodged a second protection visa application". The Tribunal then stated at [32]:

It is also difficult for the Tribunal to see how the applicant's missing his biometric testing in 2016 in relation to the first protection visa application would have affected his ability to be able to lodge the present visa application within time so as to avoid the Schedule 3 criteria. As was explained to him at the hearing, if the biometric testing did proceed as scheduled and the first visa application proceeded as normal, the visa application would ultimately have resulted in one of two outcomes - (1) it would have been refused, in which case the relevant day would have stood as 16 May 2016; or (2) it would have been granted and the applicant would have then become the holder of a permanent protection visa and this would have precluded the need for the present visa application. ... In any case, the fact of the applicant missing the biometric testing (for whatever reason) is irrelevant.

1. Mr Okorie did not explain the manner in which the Tribunal erred and misdirected itself. There is force in the Tribunal's observation at [32] that "it is ... difficult ... to see how the applicant's missing his biometric testing in 2016 in relation to the first protection visa application would have affected his ability to be able to lodge the present visa application within time so as to avoid the Schedule 3 criteria". This observation supports the Tribunal's conclusion at the end of [32] that "the fact of the applicant missing the biometric testing (for whatever reason) is irrelevant". I am not persuaded there is an error by the Tribunal in this reasoning process.
2. It is asserted at AS [65] that the Tribunal breached s 359A by failing to give to the applicant particulars of "any information that it was intending to rely on the applicant's previous application for protection visa". The meaning of this contention is unclear. One reason is that the contention does not specify the "information" the subject of the alleged breach of s 359A. A second reason is that the contention does not identify the finding of the Tribunal the subject of the alleged breach of s 359A. I am not persuaded there is an error by the Tribunal in relation to this issue.
3. Ground 3 does not identify a jurisdictional error in the Tribunal's decision.

1. At the conclusion of the hearing, the Court invited submissions from the parties on costs. Mr Johnson sought costs in the amount of $5,900. Mr Okorie stated that his client was indigent and did not have work rights. He requested that the costs order be for a lower amount. In circumstances where the scale amount is $8,371.30, which is "a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case" (Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12 (Gehlert) at [69]), I consider the amount of $5,900 sought by the first respondent is reasonable. Indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is "fair and just in the circumstances": Gehlert at [67]. I will make an order in this amount.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.