Rajak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 5 Mr Rajak applied for the visa on 27 January 2015, based on his relationship with Ms Ah Jack who is an Australian citizen. 6 The Minister's delegate refused to grant the visa on 28 August 2015. 7 The applicant sought review of that decision in the Tribunal. On 2 June 2016, the Tribunal affirmed the decision under review. The applicant then sought judicial review of the Tribunal's decision and, on 9 September 2016, the matter was remitted by consent to the Tribunal for reconsideration. 8 On 14 December 2016, the applicant appeared before the Tribunal (differently constituted) with the assistance of his migration agent to give evidence and present arguments. The sponsor also appeared at the Tribunal hearing and gave evidence. On 21 June 2017, the Tribunal affirmed the decision under review.

Tribunal's decision 9 The Tribunal identified the requirements for the visa in cl 820.211(2)(d) of the Migration Regulations, noting that an applicant must "satisfy criteria in Schedule 3 to the Regulations unless the Minister is satisfied that there were compelling reasons for not applying those criteria". The Tribunal further noted that in order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days after the last day he held a substantive visa. Noting that the applicant had not done this, the Tribunal proceeded to consider whether there were compelling reasons for waiving that requirement. 10 The Tribunal addressed the meaning of "compelling reasons" (at para 7 of its decision record) as follows: The Regulations do not define the term "compelling reasons". However, they should be sufficiently convincing to move the decision-maker to exercise the discretion to waive the criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of doing so: MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478 at [10]; [Babicci v Minister for Immigration, Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [24]]. 11 After recording matters concerning the applicant's immigration history, the Tribunal made factual findings concerning the relationship between Mr Rajak and Ms Ah Jack; the impacts of a lengthy separation between Mr Rajak and Ms Ah Jack that would occur if Mr Rajak was required to return to Nepal to obtain another visa to live in Australia; the risk of harm to Mr Rajak in Nepal; the significance of the April 2015 Nepali earthquake; the likely pressure on Mr Rajak to marry another person in Nepal; and Ms Ah Jack's living arrangements and financial circumstances. 12 At para 19 of its decision, the Tribunal addressed the risk of harm to Mr Rajak if he were to return to Nepal as follows: The Tribunal asked Mr Rajak why he thought that Maoists would target him after such a long time and he said they told his family they are looking for him and his father is paying money to them regularly even though his business is in difficulty after the earthquake. The Tribunal found this evidence to be unconvincing because it is self-serving and uncorroborated. It is not satisfied that Mr Rajak is at any particular risk because of an incident that occurred many years ago. 13 At paras 30 to 33 of its decision record, the Tribunal set out the following conclusions: 30. The Tribunal is not satisfied Mr Rajak is at any particular risk of harm if he returned to Nepal because of an incident that occurred many years ago and does not accept his concerns arising from his family's political affiliations are well-founded. It has had regard to information provided by the Australian Government to travellers but does not find on that evidence that Mr Rajak would not be safe if he returned to Nepal to apply for a visa. 31. The Tribunal accepts the evidence of a lengthy relationship and that Mr Rajak and Ms Ah Jack would suffer emotional hardship during a lengthy separation if the Schedule 3 criteria apply. It also takes account of the current adverse circumstances that affect Mr Rajak's family home and business in Nepal. However, it does not accept he could not live independently of his family in Nepal and infers that, if necessary, Ms Ah Jack would provide him with a similar level of financial support as she currently provides. Ms Ah Jack does not wish to live alone but is not able to move to live in her family home because it is already overcrowded. However, she could live with others in her current home or in other shared accommodation, which would reduce the cost of accommodation and free up funds to assist Mr Rajak if that is necessary. It might be that Mr Rajak's family would pressure him to marry someone else if he lived in Nepal for a lengthy period. Mr Rajak said he would resist the pressure but the Tribunal accepts that it might cause some discomfort or conflict with family members. 32. Each of circumstances in the previous paragraph give rise to some hardship or difficulty for Mr Rajak and/or Ms Ah Jack. However, the hardship and difficulties are endurable and surmountable in each case and the cumulative effect is not so significant that it gives rise to compelling reasons to waive the Schedule 3 criteria. 33. As there are no compelling reasons to waive the Schedule 3 criteria and Mr Rajak does not satisfy clause 820.211(2)(d)(ii). [sic] The Tribunal will affirm the decision under review for that reason.

Proceedings in the FCCA 14 The FCCA judge addressed each of the applicant's five grounds of review separately as follows.

Ground 1: interpretation of "compelling reasons" 15 Ground 1 is addressed at [21]-[26] of the FCCA judge's reasons. 16 The FCCA judge noted that the applicant accepted the accuracy of the statement at para 7 of the Tribunal's decision record (set out at [10] above). The FCCA judge rejected the applicant's contention that, by para 32 of the AAT's decision record (set out at [13] above), the Tribunal required the applicant to demonstrate hardships and difficulties which were unendurable and insurmountable, giving the following reasons (at [25]): The Tribunal did not set a threshold for the requirement that there be compelling reasons. All it did was to explain why the circumstances were not compelling reasons even though it accepted that there may be difficulties or hardship. The fact that it used different words does not, itself, establish that it placed a gloss on the words of the criterion. Given the subjective nature of the term "compelling" [see, for example, McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096] it is to be expected that different decision-makers will be satisfied that different circumstances will amount to "compelling reasons". In each case, as here, it will be a matter for the decision-maker to explain why he or she was, or was not, so satisfied and an explanation that resorts only to the words of the criterion will not be of much assistance in that explanation.

Ground 2: length of marital relationship 17 Ground 2 is addressed at [27]-[30] of the FCCA judge's reasons. 18 At [27] of his Honour's reasons, the FCCA judge recorded the following relevant facts: The applicant claimed that he and his sponsor had formed a relationship in February 2012, had moved into an apartment together in mid-2012 and were married in January 2015. The Tribunal accepted that the applicant and his sponsor had been living together as a couple for some years: [10]. The Tribunal took into account the fact that the relationship was lengthy and that that, together with the other circumstances accepted by it, would give rise to some hardship or difficulty; nevertheless, it was not satisfied that there were compelling reasons for not applying the sch.3 criteria: [31]-[32]. 19 At [29], the FCCA judge accepted that a relationship over two years might amount to compelling reasons, but concluded that this did not mean that all decision-makers must make the same finding. His Honour also noted that the question whether there were "compelling reasons" is a subjective one and leaves a broad and evaluative discretion to the decision-maker.

Ground 3: unreasonableness 20 Ground 3, which raised four separate complaints of unreasonableness, is addressed at [31] to [39] of the FCCA judge's reasons. 21 At [31] of his Honour's reasons, the FCCA judge stated that the first complaint concerned the length of Mr Rajak's relationship with Ms Ah Jack. The FCCA judge dismissed this complaint, saying: "The same arguments were made in respect of this matter in support of ground 2 and are rejected for the same reason." 22 The second complaint was that the Tribunal had "simply brushed aside all matters dealing with the consequences of" the 2015 earthquake in Nepal. The FCCA judge did not accept that this was an accurate characterisation of the Tribunal's reasoning, noting (at [33] and [34]): [33] The Tribunal accepted, at [21], that there were compelling reasons for not applying the criteria during the humanitarian crisis following the earthquake in Nepal in April 2015. However, it correctly proceeded to assess whether that was still the case at the time of its decision in June 2017. To this end, the Tribunal noted that it had asked the applicant about the current impact of the earthquake: [23]. It recorded the applicant's response about his family's living conditions, the cultural norm that meant that families lived together and the economic impact of the loss of tourism. The Tribunal accepted all of that; however, it found, at [24], that the cultural conventions would not make it impossible for the applicant to live separately from his family and, at [26], that his sponsor would be able to support him in Nepal as she was doing here in Australia. [34] The applicant argues that the Tribunal did not deal with the question of where the applicant would live and the degree of social stigma that living apart from his family in Nepal might bring to him. That is correct, but it did not have to. The Tribunal responded, as it had to, to the material that was before it. Far from brushing aside that material, as the applicant claims, it considered it and took it into account in determining whether there were compelling reasons for not applying the sch.3 criteria. 23 The third complaint concerned the Tribunal's finding that it "accepted that pressure on [Mr Rajak] to marry someone else in Nepal would cause him discomfort and conflict with his family members". The FCCA judge concluded that the Tribunal had considered this matter together with the other circumstances and did not find that the applicant's circumstances compelled the Tribunal not to apply the Sch 3 criteria. His Honour concluded (at [35]) that there was "no error of any type involved in that reasoning". 24 The fourth complaint concerned the applicant's contention that Ms Ah Jack was "an Australian citizen [who] did not want to live alone and being separated would cause her [to be] upset". The FCCA judge addressed this complaint as follows (at [36] and [37]): [36] The fourth particular of this ground is that the applicant's sponsor was "an Australian citizen [and] did not want to live alone and being separated would cause her upset". The applicant argues that the Tribunal dealt with this as a purely financial matter that could be resolved by getting a flatmate. That is not an accurate summary of the Tribunal's findings. First, the sponsor's living arrangements were inextricably linked to her financial circumstances. The applicant claimed that it would be difficult for his sponsor to meet the rent if he went to Nepal and she said that she did not want to live alone. The Tribunal rejected the first of these (at [28]), suggesting that the applicant's sponsor could find a flatmate to deal with loneliness and that this could also assist with any financial difficulty: [29]. Further, it accepted that the applicant's sponsor would suffer emotional hardship during a lengthy separation (at [31]) but was not satisfied that that alone, or in combination with the other matters, amounted to compelling reasons: [32]. [37] The applicant's complaint is based on an inaccurate version of the Tribunal's reasons. Contrary to the applicant's assertion, the Tribunal did not simply deal with the emotional aspect of the couple's separation as a financial matter, although it did deal with that part of the claim.

Ground 4: finding that evidence was "self-serving and uncorroborated" 25 Ground 4 is addressed at [40]-[44] of the FCCA judge's reasons. This ground concerns the Tribunal's evaluation of Mr Rajak's evidence in answer to a question from the Tribunal about why Mr Rajak thought that Maoists would target him after "such a long time", being the period of about seven years since Mr Rajak had been attacked by Maoists while in Nepal in 2010. Relevantly, the Tribunal stated (at para 19 of its decision record): The country information available to the Tribunal suggests an incident of this kind would not have been unlikely in Nepal in past years. However, the length of time that has passed since the incident and the change in the political situation in Nepal makes it less likely that it would reoccur. The Tribunal asked Mr Rajak why he thought that Maoists would target him after such a long time and he said they told his family they are looking for him and his father is paying money to them regularly even though his business is in difficulty after the earthquake. The Tribunal found this evidence to be unconvincing because it is self-serving and uncorroborated. It is not satisfied Mr Rajak is at any particular risk because of an incident that occurred many years ago. 26 The FCCA judge rejected the applicant's argument that all evidence by an applicant is, by its nature, self-serving and that there is no requirement that evidence be corroborated, saying (at [41]): There are several answers to these contentions: first, it is not true that all evidence is self-serving. It is often the case that a witness will give evidence that is contrary to his or her own interests. That fact can be taken into account in deciding whether the witness is telling the truth. Secondly, while it may be true that there is no need for corroborating evidence before the evidence of a party is believed, that does not mean, as a matter of logic, that the lack of corroboration cannot support an inference that the party's evidence is "unconvincing" or not truthful. Thirdly, the Tribunal's findings about the applicant's evidence must be seen in the context of its other findings about the situation in Nepal. 27 The FCCA judge then considered the Tribunal's fact finding in relation to the applicant's claim that Maoists would kill him if he were to return to Nepal, and concluded that there was nothing irrational or illogical about the Tribunal's rejection of the applicant's evidence for the following reasons: [42] The applicant claimed that one of the circumstances that supported the conclusion that there were compelling reasons for not applying the sch.3 criteria was that Maoists would kill him if he were to return to Nepal. He claimed that he had been attacked by them when he was there in 2010. The Tribunal found, at [17], that there had been a significant change in the political circumstances in Nepal and that the applicant's historic experiences were not relevant to the time of decision. In spite of this, the Tribunal went on to consider the applicant's evidence about what had occurred to him: [18]. Having set out that evidence, the Tribunal found, at [19], that, while such an incident was not unlikely in the past, it would be much less likely to occur in light of the change in circumstances. It then stated: [19] … The Tribunal asked Mr Rajak why he thought that Maoists would target him after such a long time and he said they told his family they are looking for him and his father is paying money to them regularly even though his business is in difficulty after the earthquake. ... [43] This was the evidence which the Tribunal found unconvincing because it was "self-serving and uncorroborated". The Tribunal came to this conclusion in the context of its previous findings about the change in circumstances in Nepal and what amounted to a fresh claim raised by the applicant to address that change. There was nothing irrational or illogical about the Tribunal's rejection of the applicant's evidence.

Ground 5: failure to give proper genuine and realistic consideration to representations and submissions 28 The FCCA judge rejected ground 5 (at [45]) for the following reasons: This ground was, in effect, another way of putting all of the other grounds. It was contended that the Tribunal's approach (as criticised in the other grounds) could also be characterised as a failure to carry out the function of reviewing the delegate's decision. I reject that contention. As I have observed in respect of the previous grounds, the Tribunal responded to each of the contentions raised by the applicant in connection with the issue of the existence of compelling reasons, it understood the question to be asked in respect of that issue, and it properly answered that question by applying a correct understanding of what is meant by "compelling reasons" to the findings of fact which it had made on the basis of logically available inferences from the material before it.

Application for extension of time to appeal 29 Rule 36.03 of the Federal Court Rules 2011 (Rules) requires a notice of appeal to be filed and served within 21 days after the date on which orders or judgment were pronounced. Accordingly, a notice of appeal should have been filed by 7 December 2018. The application is therefore 59 days out of time. 30 Rule 36.05 of the Rules permits an application for an extension of time within which to file a notice of appeal: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (DZAAD). 31 The relevant considerations in deciding whether to grant an extension of time include: (1) The reasons for and length of the delay. The Court must be satisfied that it is proper to grant an extension of time, noting the prescribed period is not to be ignored: SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12]. (2) Any prejudice to the respondent, noting that the mere absence of prejudice is not enough to justify the grant of an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. (3) The merits of the appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD at [28]. 32 Mr Rajak's affidavit in support of his application stated: 2. At the time of the decision of the Federal Circuit Court in November my wife and I were in a state of confusion because she was pregnant and we were struggling a great deal financially. I was not able to afford an appeal at that time and I had to seek Ministerial Intervention. Which unfortunately was not successful. 3. Despite all the difficulties I have managed to get together the necessary funds for an appeal, including with the assistance of friends[, for] which I am very grateful. I only just became in receipt of these funds and I am bringing the appeal at the first available opportunity. 33 The Minister noted that the applicant has not provided any independent evidence to support any of these claims. The Minister submitted that this is not a satisfactory explanation for the delay. 34 However, the Minister accepted that there is no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision-making: Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

Merits of the draft notice of appeal 35 The applicant's submissions were not directed to the grounds in the draft notice of appeal. Having considered the reasons for judgment of the FCCA judge, I do not detect any possible error in them. 36 In particular, in relation to ground 4, there is no identifiable legal error in the three observations of the FCCA judge at [41] of his Honour's reasons. While an applicant's evidence can be expected to be largely self-serving, the observations that the relevant evidence was self-serving and uncorroborated were rational reasons for the Tribunal's conclusion that the evidence was unconvincing. As the FCCA judge correctly observed, this conclusion was open to the Tribunal in the context of its evaluation of other evidence given by the applicant. This included the Tribunal's findings (at para 17 of its decision record) that Mr Rajak was uninformed about the political and security situation in his home country and, consequently, that any general concern held by Mr Rajak for his current safety arising from his family's political affiliations was not well founded. 37 Accordingly, I am not satisfied that the draft notice of appeal has any prospects of success.

Conclusion 38 In the absence of any prospects of success on the proposed appeal, it would be futile to grant the extension of time sought. Accordingly, the application must be dismissed. Costs should follow the event. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.