Singh v Minister for Home Affairs

STATUTORY FRAMEWORK 8 Section 65 of the Migration Act 1958 (Cth) (Act) requires the Minister to grant a visa if satisfied that the criteria are met, and must refuse to grant a visa if not so satisfied. The criteria for grant of a partner visa are found in Schedules 1 to 5 of the Regulations. As Mr Singh filed his partner visa application while in Australia, he was required to satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations: (2) An applicant meets the requirements of this subclause if: … (d) in the case of an applicant who is not the holder of a substantive visa … : … (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. 9 Item 3001 of Schedule 3 to the Regulations (Item 3001) relevantly required that: (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) … the relevant day, in relation to an applicant, is: … (c) if the applicant: (i) ceased to hold a substantive … visa on or after 1 September 1994 … … (iii) the last day when the applicant held a substantive … visa … … … 10 The policy reasons for these statutory settings appears to be that, ordinarily, a person without a visa for Australia is not entitled to be in Australia. A person in such circumstances would not be able to lodge an application for a partner visa from within Australia and, in so doing, be able to remain in Australia while that application was being processed. Rather, a person in such circumstances would be required to apply for a partner visa from overseas and await the grant of that visa as the basis for making entry to Australia. The combined effect of cl 820.211(2)(d)(ii) and Item 3001 is to place an applicant who has remained in Australia without a substantive visa for more than 28 days in the same position as other applicants who do not otherwise hold a visa for Australia by requiring that they apply from outside Australia, and not benefit from remaining in Australia, unless the applicant can show compelling reasons that warrant allowing an onshore application to proceed.

THE TRIBUNAL's DECISION 11 The Tribunal's decision was usefully summarised by the primary judge at [7]-[17]. The Tribunal found that Mr Singh had ceased to hold a substantive visa more than 28 days before the partner visa application was made (at [10]-[11]). The Tribunal then considered whether there were compelling reasons not to apply the criteria in Item 3001. The Tribunal was not satisfied that, individually or cumulatively, the following circumstances raised by Mr Singh and Ms Sharma amounted to compelling reasons not to apply Item 3001: (a) the genuineness and longevity of their relationship. The Tribunal considered that this was a foundational requirement for a partner visa, and not compelling (at [15]); (b) Ms Sharma's health conditions, including stress induced by, and exacerbating, conditions affecting her ability to conceive a child (at [16]-[17]); (c) the difficulties Mr Singh would face in India (at [20]-[22]); (d) Mr Singh's mental health (at [24]-[25]); (e) a claim that Mr Singh's adverse immigration history in Australia was due to bad advice from migration agents (at [20]-[23]); (f) the difficulties that any period of separation would present to Mr Singh and Ms Sharma if Mr Singh was required to apply from overseas (at [19]). The Tribunal found that: While [the Tribunal] accepts that [Mr Singh's] departure may present some hardship and challenges, it is of the view that a level of hardship may be experienced if partners are separated from one another for any extended period time [sic]. This is a particularly common experience for a large number of applicants applying from offshore to migrate to Australian on the basis of their relationship with an Australian partner … Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, even after considering the parties' claimed interdependency, the parties have not satisfied the Tribunal that their separation, for a time, is a compelling reason not to apply the Schedule 3 criteria in this case. (g) the difficulties Mr Singh and Ms Sharma were having conceiving a child (at [16]-[17]). In this regard, the Tribunal found (at [18]) that: The Tribunal accepts that [Mr Singh and Ms Sharma] sought [In Vitro Fertilisation (IVF)] assistance and [Ms Sharma's] evidence that they cannot afford to continue with IVF treatments. The Tribunal is of the view that it is not unusual for couples, especially older couples, undertaking IVF treatment not being successful in conceiving a child. While the Tribunal is sympathetic to the parties' experience in not conceiving, it does not accept that the parties' circumstances in this regard are unusual and is not compelled by these circumstances. 12 The Tribunal concluded that the criteria for the grant of the visa were not met, and affirmed the decision under review.

DECISION OF THE FCCA 13 The grounds of review before the FCCA were as follows: 1. The Tribunal's assessment and reasoning process of the compelling reason was erroneous. 2. The Tribunal acted unreasonably in not giving adequate weight to the health condition of [Ms Sharma]. 3. The Tribunal gave undue weight to [Mr Singh's] becoming unlawful non-citizen before applying for the partner visa application. 4. The Tribunal failed to take relevant consideration into account while determining the existence of the compelling reason. (Particulars omitted) 14 Ground 3 was not pressed before the FCCA and does not arise on appeal. 15 In dismissing the application, the primary judge found that the Tribunal had correctly instructed itself as to the law and as to what constituted a compelling reason; and that Mr Singh's disagreement with the Tribunal was insufficient to find jurisdictional error (at [33]). In relation to Ground 1, the primary judge found that the Tribunal's conclusions were open to it, noting the policy settings relevant to the criterion in Item 3001 (at [34]-[35]). In relation to Ground 2, the primary judge was satisfied that the Tribunal's weighting of Ms Sharma's health condition was not irrational, illogical or legally unreasonable (at [36]-[37]). The primary judge found Ground 4 to fail at a factual level because the Tribunal had considered, but rejected, each of the particulars set out by Mr Singh (at [38]).

GROUNDS OF APPEAL 16 The grounds of appeal before this Court reflect those that were pressed before the FCCA. The particulars of those grounds are set out in full, in the absence of any written submissions from Mr Singh: 1. The Primary Judge erred in not finding that the Tribunal's assessment and reasoning process of the compelling reason was erroneous. Particulars i. The Tribunal drew a generalised parallel with [Mr Singh and Ms Sharma] applying from offshore on the basis of their relationship. (at [19], line 19 & 20 of the decision) ii. The Tribunal accepted that 'hardship' could be considered a 'compelling' factor in relation to the Schedule 3 criteria (at [19], line 21-23 of the decision) iii. The Tribunal accepted that [Mr Singh] departing Australia to pursue the partner visa application may present the parties with challenges (at [17], line 7 to 9 of the decision) iv. The Tribunal is of the view that it is not unusual for couples, especially older couples, undertaking IVF treatment not being successful in conceiving a child………it does not accept that the parties' circumstance in this regard are unusual and is not compelled by these circumstances (at [18] of the decision) v. The Tribunal accepts that [Mr Singh] departing Australia may provide the parties with challenges. (at [19], line 12 & 13 of the decision) vi. While it accepts that [Mr Singh's] departure may present some hardship and challenges, it is of the view that a level of hardship may be experienced if partners are separated from one another for any extended period of time. This is a particularly common experience for a large number of the appellant applying from offshore. 2. The Primary Judge erred in not finding that the Tribunal acted unreasonably in not giving adequate weight to the health condition of [Ms Sharma]. Particulars (as set out at [16] of the decision) i. [Ms Sharma] was suffering from stress ii. The medical certificate recorded that she did not attend work for sometimes in 2016, 2017 and 2018 due to stress, muscular pain, bad cough or post-operative medical condition iii. In 2017 [Ms Sharma] was placed on a mental health treatment plan and referred to a psychologist. iv. The psychologist diagnosed [Ms Sharma] with mixed anxiety, depression and adjustment disorder. v. In case of separation, [Ms Sharma's] mental health condition will worsen. vi. The couple was trying for a pregnancy for two years without success and their specialist told that they had only one more year for this and [Ms Sharma's] chances of conceiving would become less. vii. The parties gave evidence that the stress was a possible reason for [Ms Sharma] not being able to conceive. 3. The Primary Judge erred in not finding that the Tribunal failed to take relevant consideration into account while determining the existence of the compelling reason. Particulars i. The Tribunal did not give any regard to the possibility that without [Mr Singh], there is strong likelihood that [Ms Sharma's] medical and mental condition will worsen. ii. The separation would significantly hinder and diminish [Ms Sharma's] chances of conceiving and start a family. iii. The Tribunal did not consider the right of [Ms Sharma], an Australian citizen, and [Mr Singh] of having a child of their relationship. (emphasis and errors in original)

THE APPELLANT'S SUBMISSIONS 17 Mr Singh did not file written submissions. At the hearing, I recounted the three grounds of appeal and asked Mr Singh to address the Court as to the errors made by the Tribunal. At Mr Singh's request and with the consent of counsel for the Minister, I also allowed Ms Sharma to make oral submissions. 18 In summary, Mr Singh and Ms Sharma's submissions were as follows: (a) they had provided the Department and Tribunal with all documents necessary to demonstrate that they were in a genuine relationship at the time the partner visa application was filed; (b) Mr Singh was young and made a mistake when his student visa was cancelled due to non-attendance at his course. The submission was to the effect that the Tribunal ought to have taken into account the circumstances leading to Mr Singh becoming unlawful in Australia, and that preventing his onshore visa application from proceeding to an assessment on its merits was a disproportionate consequence; (c) Mr Singh had previously been given incorrect advice by a migration agent, including to remain unlawfully in Australia, and to make unsuccessful attempts to apply for a medical treatment visa and a protection visa before the partner visa application; (d) they had provided evidence to the Tribunal that at the time the partner visa application was filed, they were: (i) preoccupied with, and highly stressed by, Ms Sharma's medical conditions and treatment; and (ii) under significant financial stress as Ms Sharma was the only one working, but required significant time off work due to her medical conditions and treatment; (e) subsequently, Ms Sharma had a high risk and difficult pregnancy resulting in premature birth by caesarean section at 33 weeks, and further medical complications; (f) Mr Singh provided care and emotional support to Ms Sharma, and she would suffer undue hardship if they were separated for a prolonged period of time; (g) they would face difficulties with employment, income and medical treatment if one or both of them were to return to India; and (h) they now have two children.

THE MINISTER'S SUBMISSIONS 19 In response to the matters raised by Mr Singh and Ms Sharma in their oral submissions, counsel for the Minister submitted the following: (a) that, in the context of judicial review concerning the legality of the Tribunal's decision, the Court cannot take into account events which have occurred since that decision, such as the birth of Mr Singh and Ms Sharma's two children (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28] (per Beach, Thawley and Cheeseman JJ); (b) that the Tribunal's decision was not based on an adverse assessment of the genuineness of the relationship between Mr Singh and Ms Sharma, or a lack of documentation demonstrating the nature of that relationship. Rather, the Tribunal based its decision on an assessment of the reasons presented by Mr Singh and Ms Sharma as to why there were compelling reasons to waive the criterion in Item 3001. The Minister submitted that the primary judge did not err in finding no jurisdictional error in the Tribunal's approach to determining that no compelling reasons existed; and (c) that the Tribunal dealt with the claim of misleading conduct on the part of migration agents at [20]-[23] of its decision, finding that it was not supported by any evidence, and that Mr Singh had made a considered and informed decision to remain in Australia unlawfully.

Ground 1 20 In relation to the first ground, the Minister submitted that this Court has found cl 820.211(2)(d)(ii) to confer a broad discretion on a decision-maker to waive the requirements of Item 3001 where there are "reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria", and "[t]he circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour" of waiver (MZYPZ v Minister for Immigration and Border Protection (2012) 127 ALD 510; [2012] FCA 478 at [10] (per Bromberg J); Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166 at [24] (per Gleeson J). The Minister contended that, in this matter, the Tribunal considered and accepted the elements of each of the claims raised by Mr Singh, but was not satisfied that those claims presented a compelling reason for not applying the criterion in Item 3001. The Minister contended that, in exercising its discretion, those findings were open to the Tribunal on the evidence. 21 The Minister refutes Mr Singh's contention that the Tribunal reasoned that Mr Singh's departure from Australia could not be a compelling reason simply because it is not uncommon for applications for a partner visa to be made from outside Australia. Rather, the Tribunal reasoned that the separation resulting from that departure (assuming Ms Sharma did not accompany Mr Singh to India) was insufficient to provide a compelling reason to waive the Schedule 3 criteria. The Minister submitted that in coming to that conclusion, the Tribunal had regard to the particular circumstances of Mr Singh and Ms Sharma, including the family support and employment available to Ms Sharma in Australia, and the media available for Mr Singh and Ms Sharma to communicate with each other while physically apart. 22 The Minister further submitted that in informing itself of the correct test, the Tribunal's reasoning did not rise so high as to require circumstances to be "unusual" in order to be compelling. Rather, it was open to the Tribunal to find that Mr Singh and Ms Sharma's circumstances were no different from other couples attempting to conceive through IVF. The Minister contended that in any event, this Court has equated "compelling reasons" with "exceptional circumstances" (SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944 at [10], [25], [34] (per Colvin J)).

Ground 2 23 The Minister cited Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [32]-[36] as authority for the finding of the primary judge that the weight to be given to evidence was a matter for the Tribunal. The Minister submitted that the Tribunal gave extensive consideration to Ms Sharma's medical conditions including the conception issues, and it was open to the Tribunal to find that they did not amount to a compelling reason to waive the Schedule 3 criteria.

Ground 3 24 The Minister submitted that the authority of NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] provided a complete answer to the complaints raised in the particulars to Ground 3: that the Tribunal was not required to consider those matters because none was advanced, or arose on the material, before the Tribunal. 25 In relation to the first two particulars, the Minister contended that it was not Mr Singh's case before the Tribunal that Ms Sharma would remain in Australia were Mr Singh to depart for India. Rather, the submissions presented to the Department and oral evidence given to the Tribunal referred to the lack of quality fertility healthcare in India, and the setback that would result from starting treatment with a different medical team. The Minister submitted that, in any event, the Tribunal did consider the possibility of a period of separation were Mr Singh to depart Australia without Ms Sharma and made findings regarding the effect on Ms Sharma. The Minister submitted that the Tribunal also considered the effect on chances of conception resulting from a period of separation, and it was open to the Tribunal to find that this was not a compelling circumstance. 26 The Minister contended that the third particular was not raised at all before the Tribunal. Citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47], the Minister further contended that the third particular would not have arisen as a matter the Tribunal needed to consider, once it had rejected the factual premise on which it was based, by finding that the effect on chances of conception resulting from a period of separation did not amount to a compelling reason not to apply Item 3001.

CONSIDERATION 27 As mentioned earlier in these reasons, the notice of appeal set out three grounds.

Ground 1 28 The first ground was that "the Primary Judge erred in not finding that the Tribunal's assessment and reasoning process of the compelling reason was erroneous". The ground contained six particulars. I agree with the Minister, who identified a focus on two issues. 29 Particulars (i)-(iii) and (v)-(vi) dealt with the first issue and particular (iv) dealt with the second. 30 Particular (i) asserted that the Tribunal drew a generalised parallel with Mr Singh applying from offshore on the basis of their relationship. Particular (ii) recorded the Tribunal's acceptance that "hardship" could be considered a compelling factor. Particular (iii) recorded the Tribunal's acceptance that Mr Singh departing Australia may present the parties with challenges. Particular (v) recorded the Tribunal's acceptance that Mr Singh departing Australia may provide the parties with challenges, which repeats particular (iii), but references different reasons. Particular (vi) asserted that, whilst the Tribunal accepted that Mr Singh's departure may present some hardship and challenges, it was of the view that a level of hardship may be experienced if partners are separated from one another and that this is a particularly common experience for a large number of applicants applying from offshore. 31 It seemed to be asserted that the Tribunal made a jurisdictional error in making the generalised parallel. 32 The passages referred to are from [17] and [19] of the Tribunal's decision. Particular (iii) referred to a passage in [17]. The Tribunal noted that Mr Singh's departure may present the parties with challenges, but continued to "encourage" Ms Sharma to seek assistance from family and friends and health professionals during any separation and also noted that Mr Singh could continue to support Ms Sharma via various communication tools available. The conclusion, in the same paragraph, was that the Tribunal was not satisfied that the conditions outlined were compelling reasons not to apply the Schedule 3 criteria. Neither was the Tribunal satisfied that Ms Sharma would be unable to care for herself during Mr Singh's absence. Those are conclusions which were clearly open to the Tribunal. 33 Paragraph 19 referred to a submission that Mr Singh was unable to return to India because he supported Ms Sharma in her study and work and that the parties were wholly interdependent for mental, physical, psychological, financial and emotional support. Reference was also made to a submission that a departure from Australia would mean that Ms Sharma may not have had the support necessary to complete her study and progress to work in the aged care service sectors. Again, the Tribunal accepted Mr Singh departing may provide the parties with "challenges", but did not accept that Ms Sharma would not have completed her study and noted that Ms Sharma had successfully worked and completed study in Australia prior to the parties' relationship. 34 Again, the Tribunal accepted that Mr Singh's departure may present some "hardship and challenges" and expressed the view that a level of hardship may be experienced if partners are separated from one another for any extended period. The Tribunal continued that this was a particularly common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian partner. The Tribunal acknowledged that hardship can be considered a compelling factor, but concluded that, even after considering the claimed interdependency (referred to earlier in [19]), the parties had not satisfied the Tribunal that their separation, for a time, was a compelling reason not to apply the Schedule 3 criteria. 35 I do not believe that the Tribunal was drawing any "generalised parallel" with applicants applying from offshore which led the Tribunal to conclude that there were no compelling reasons not to apply the Schedule 3 criteria. Rather, the Tribunal was referring to experiences of other visa applicants as an example of the fact that couples often experience hardship during periods of separation. The fact of separation alone was not a compelling reason. However, it is clear that the Tribunal considered the particular circumstances advanced by Mr Singh. I have outlined those considerations above in relation to the passages to which the notice of appeal referred. 36 The second issue was outlined in particular (iv). The particular referred to the Tribunal's conclusion that "it is not unusual for couples, especially older couples, undertaking IVF treatment not being successful in conceiving a child [and] does not accept that the parties' circumstances in this regard are unusual and is not compelled by these circumstances". 37 I believe the point being made by the Tribunal was that the circumstances in which Mr Singh and Ms Sharma found themselves were no different from many other couples, particularly older couples, when not successful in conceiving a child using IVF. I do not believe the passage suggests that the Tribunal was in error in relation to the application of the test with respect to "compelling reasons". The Tribunal had correctly identified and outlined the test in [13] of the Tribunal's decision. 38 As to Ground 1, the primary judge's findings did not demonstrate any appellable error. The Tribunal considered all of the submissions outlined by Mr Singh and made no error in finding that any hardship that Mr Singh and Ms Sharma may suffer, should he be required to depart Australia, did not constitute a compelling reason not to apply the schedule 3 criteria.

Ground 2 39 The second ground asserted that the primary judge erred in not finding that the Tribunal acted unreasonably in not giving adequate weight to the health conditions of Ms Sharma. Seven particulars are provided, which are referred to in [16] of the Tribunal's decisions. 40 In [16], the Tribunal considered, in detail, the matters relating to Ms Sharma's health including stress, reliance on Mr Singh to maintain the household, a report prepared by a psychologist, medical certificates as to the times Ms Sharma could not attend work and the reasons for the absences, mental health, Mr Singh's role as Ms Sharma's carer, the difficulty in conceiving a child and migraine headaches. 41 As the primary judge correctly held (at [37]), the weight to be given to evidence is a factual question for the administrative decision-maker and not one which is decided by the FCCA on judicial review.

Ground 3 42 Mr Singh contended that the primary judge "erred in not finding that the Tribunal failed to take relevant consideration into account while determining the existence of the compelling reason". Three particulars were provided. 43 In summary, the particulars were: (a) the Tribunal had no regard to the possibility that, without Mr Singh, there was a strong likelihood that Ms Sharma's medical and mental condition would worsen; (b) the separation would significantly hinder and diminish Ms Sharma's chance of conceiving and starting a family; and (c) the Tribunal did not consider the right of Ms Sharma, an Australian citizen, and Mr Singh of having a child of their relationship. 44 As to the first particular, as mentioned earlier, Ms Sharma's mental health and Mr Singh's departure from Australia were considered in [16]-[19] of the Tribunal's decision. Reference was made to the contents of the psychologist report of 14 March 2017, and to the fact that the parties are co-dependent with both seeing Mr Singh's role as Ms Sharma's carer with the conclusion that the "impact of separating [Ms Sharma] from [Mr Singh] would be profound". The decision-maker noted, "at a time when [Ms Sharma] was in good mental health separation may be manageable but at the time of the report [Ms Sharma's] mental health was worsening". Reference was made to Mr Singh being "a major player counselling [Ms Sharma]". The Tribunal accepted that "[Mr Singh] departing Australia to pursue a partner visa application may present the parties with challenges" but encouraged Ms Sharma to seek the assistance of her family and friends and health professionals during any separation from Mr Singh. The Tribunal noted that Mr Singh would continue to support Ms Sharma by the various communication tools available. 45 The Tribunal was not satisfied that Ms Sharma would be unable to care for herself during Mr Singh's absence and observed that, should she face any difficulty, she was encouraged to seek assistance from her health professionals. 46 At [19] of the Tribunal's decision, the Tribunal noted the parties "were wholly interdependent for mental, physical, psychological, financial and emotional support". The member noted that Mr Singh placed significant weight on the detrimental effect his departure would have on Ms Sharma. The Tribunal accepted that Mr Singh departing Australia may provide the parties with challenges and acknowledged that Mr Singh would not be physically present on a day-to-day basis for a time. However, acknowledging that hardship can be considered a compelling factor in relation to Schedule 3 criteria, even after considering the parties' claimed interdependency, the Tribunal was not satisfied that their separation, for a time, was a compelling reason not to apply the Schedule 3 criteria. 47 In those circumstances, it is clear that the Tribunal had regard to the possibility that Ms Sharma's medical and mental condition might worsen if she were separated from her partner. It cannot be said that the Tribunal failed to have regard to that fact. 48 As to the second particular, reference was made in [16] to advice from Ms Sharma's specialist that "she had another year to [conceive] and her chances of conceiving would become less". 49 Even in light of this information, it was not accepted that this was a compelling circumstance. It follows logically that the Tribunal was not persuaded that any separation (and the inability to conceive a child during separation) was a compelling reason not to apply the Schedule 3 criteria. 50 The third particular rested on the premise that the inability of Ms Sharma to conceive a child during any period of separation from Mr Singh amounted to a compelling reason to waive compliance with the Schedule 3 criteria. That proposition was rejected by the decision-maker. As a result, even if the complaint had been raised, the Tribunal was not required to make an express finding. 51 I have dealt with Ground 3 by reference to the consideration which was undertaken by the Tribunal. It is, however, a fact that none of the particulars in Ground 3 were advanced, or clearly arose on the material, before the Tribunal. Under the circumstances, the Tribunal was not asked to consider any of those complaints. 52 As to the first and second particulars Mr Singh's case appeared not to have been that, if he were compelled to return to India, Ms Sharma would not join him. In submissions to the Department, reference was made to the lack of the same quality of medical care (relating to the fertility issues) being available in India. Reference was also made to the disadvantage of being forced to "begin again" with a different medical team. 53 The third particular was not raised before the Tribunal and was not one which arose clearly on the material before the Tribunal. 54 As a result, it was not necessary for the Tribunal to consider the matters raised in Ground 3.

CONCLUSION 55 No appellable error is evident in the judgment of the primary judge. 56 The appeal is dismissed. 57 Mr Singh is to pay the costs of the Minister, to be taxed if not agreed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.