Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1260

1. On 13 May 2016, the applicant made an application for a Subclass 820 visa and an application for a Subclass 801 Partner (Residence) (Class BS) visa (Subclass 801 visa) on the basis of his spousal relationship with Ms Rebecca Roberts. Ms Roberts agreed to sponsor each of those visa applications.[3]
2. On 14 February 2019, a delegate of the Minister refused to grant the applicant a Subclass 820 visa and a Subclass 801 visa.[4]
3. In relation to the refusal to grant a Subclass 820 visa, the delegate determined that cl 820.211(2)(d)(ii) in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had not been met because the applicant was 'unable to satisfy all of' criteria 3001, 3003 and 3004 in Schedule 3 to the Regulations and compelling reasons did not exist for not applying those criteria.[5] By way of foreshadowing a critical issue to be determined, it is apposite to set out the delegate's approach towards determining whether cl 820.211(2)(d)(ii) had been met:[6]

As you are unable to satisfy all of 3001, 3003 and 3004, and I have concluded that there are no compelling reasons to waive the Schedule 3 requirement, I find that criterion 820.211(2)(d)(ii) is not met.

1. In relation to the refusal to grant a Subclass 801 visa, the delegate determined the applicant did not meet the requirements of cl 801.221(1) in Part 801 of Schedule 2 to the Regulations. The failure to meet that requirement stemmed from the fact the applicant neither held nor had been the holder of a Subclass 820 visa.

1. On 5 March 2019, the applicant applied to the Tribunal for a review of the delegate's decision in relation to the refusal to grant a Subclass 820 visa.[7]
2. On 19 October 2020, the applicant was invited to attend a hearing before the Tribunal on 6 November 2020. The invitation specified the hearing would be conducted by telephone.[8]
3. On 30 October 2020, the applicant's representative wrote to the Tribunal and submitted numerous documents under cover of a range of exhibits. A list of those exhibits, and details of some of the documents contained therein, follows:

(a) Exhibit 1 - statutory declarations and supporting documents:

(i) a statutory declaration declared by the sponsor on 29 October 2020;[9]

(ii) a statutory declaration declared by the applicant on 29 October 2020;[10] and

(iii) an article printed from the National Institute of Diabetes and Digestive and Kidney Diseases website titled 'Thyroid Disease & Pregnancy'.[11]

(b) Exhibit 2 - medical reports in relation to the sponsor:

(i) a letter from Dr Shanthini Ilanko, dated 27 October 2020;[12]

(ii) a letter from Dr Shanthini Ilanko sent to IVF Australia, dated 25 October 2020;[13]

(iii) a letter from Dr Shanthini Ilanko, dated 25 October 2020;[14] and

(iv) a health summary sheet, printed 25 October 2020.[15]

(c) Exhibit 3 -employment letter of the sponsor confirming reduction of her working hours:

(i) a letter from Frances Sciscivo of Kids @ Play Early Learning Centre, dated 23 October 2020.[16]

(d) Exhibit 4 - witness statutory declarations:

(i) a statutory declaration declared by Julianne Taoipu on 29 October (year not specified);[17]

(ii) a statutory declaration declared by Nitin Sharma on 29 October (year not specified);[18]

(iii) a statutory declaration declared by Anita Stewart on 29 October 2020;[19]

(iv) a statutory declaration declared by Christeen Talaat Eid on 29 October 2020;[20]

(v) a statutory declaration declared by Rogina Abou Hamad on 29 October 2020;[21] and

(vi) a statutory declaration declared by Nasser Raad on 29 October 2020.[22]

(e) Exhibit 5 - evidence that the applicant and sponsor live together.[23]

(f) Exhibit 6 - evidence of the sponsor sending money to relatives in Pakistan.

(g) Exhibit 7 - evidence of the sponsor's credit card loan.[24]

(h) Exhibit 8 - evidence of the social aspects of the relationship.[25]

(i) Exhibit 9 - bank statements for each of the applicant and sponsor.

(j) Exhibit 10 - evidence that the applicant had paid his Commonwealth debt.[26]

1. On 6 November 2020, the applicant, sponsor, and four witnesses appeared at the hearing before the Tribunal to give oral evidence.[27] A fifth proposed witness who sought to provide oral evidence could not be reached by the Tribunal and the applicant's representative agreed that her statutory declaration, described at paragraph 12(d)(iv) above, would suffice as her evidence.[28]

1. On 9 November 2020, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 820 visa.[29]
2. The Tribunal set out the background to the Subclass 820 visa application and identified the applicable legislation, namely cl 820.211(2)(d) and criteria 3001, 3003 and 3004 in Schedule 3 to the Regulations. It then identified the issue in the present case was 'whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria'.[30]
3. The Tribunal found the applicant did not meet Criterion 3001 in Schedule 3 because he ceased to hold a substantive visa more than 28 days prior to lodging his Subclass 820 visa application. As the applicant did not satisfy Criterion 3001, one of the applicable Schedule 3 criteria had not been met and the Tribunal formed the view that it was not required to consider whether the remaining applicable Schedule 3 criteria had been met. Again, it is apposite to set out the Tribunal's reasoning at [20] in this regard:[31]

In order to meet the legal requirements of subclause 820.211(2)(d)(ii) the applicant must satisfy each of the Schedule 3 criteria 3001, 3003 and 3004. As the applicant has not satisfied criterion 3001, the Tribunal is not required to consider the remaining criteria.

1. Having only made findings in relation to criterion 3001 and chosen not to 'consider' criteria 3003 and 3004, the Tribunal then proceeded to identify that it was required to consider whether there were compelling reasons for not 'applying the criteria' It described its task in the following terms:[32]

As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

1. Beneath a sub-heading 'Compelling reasons', the Tribunal set out a few relevant matters and principles at [22] to [24]:

(a) The expression 'compelling reasons' is not defined.

(b) A compelling reason or set of compelling reasons should be 'sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision maker to make a positive finding in favour of waiving the required criteria'. In support of these propositions, the Tribunal cited MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510; FCA 478 at [10]; Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; FCAFC 77.

(c) Circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: citing Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121; FCAFC 32 (Waensila).

1. The Tribunal summarised the oral and written evidence provided by the applicant, the sponsor and witnesses.[33] In relation to:

(a) the applicant's oral evidence, the Tribunal recorded the applicant:

(i) told the Tribunal if he were required to return to India, his wife would go broke;

(ii) said his wife was already facing some medical issues, and they were trying to conceive;

(iii) said he has anxiety which he continues to suffer from;

(iv) claimed his wife would not cope without him, nor he without her; and

(v) said his wife does not have family in Australia and only has her cousin's sister who is in Australia to support her.

(b) the sponsor's oral evidence, the Tribunal noted the following:

(i) the applicant is the only one in Australia to support her;

(ii) she would not be able to keep the rental property she has with the applicant if he returned to India;

(iii) her family is in Pakistan;

(iv) she has an Australian passport, though it would be hard for her to go to India, as 'Pakistanis hate Indians' and vice versa, and expressed doubts India would allow her into the country;

(v) COVID-19 cases are also a reason why she cannot go to India; and

(vi) she was taking medication for a thyroid condition as well as supplements.

1. The Tribunal subsequently set out a list of circumstances the applicant 'wanted' the Tribunal to consider. Relevantly, these considerations included:[34]
   • The fertility concerns of the parties if the applicant is required to return to India (and his wife unable to join him).
   • The impact covid-19 itself may have on the applicant and his wife, either because of the 'high risk' in India - should the applicant be required to return and his wife accompany him, or because of the delay that may flow from the related travel restrictions which could affect both parties.
2. Turning to its analysis of the claims and evidence, the Tribunal acknowledged the longevity of the relationship between the parties but was not satisfied this amounted to 'compelling reasons' when considered against the applicant's migration history.
3. The Tribunal accepted the applicant and his wife were in a genuine relationship and were providing each other emotional, physical and financial support.[35] However, the Tribunal found these circumstances were not so forceful as to compel the Tribunal to not apply the Schedule 3 criteria largely because a genuine relationship is a basis for the visa application.[36]
4. The Tribunal then considered the health of the applicant and sponsor and the anticipated hardship should they be temporarily separated. The Tribunal concluded these considerations did not amount to compelling reasons because the couple were managing their ailments and there was nothing particularly forceful about their mental or physical health which compelled the Tribunal not to apply the Schedule 3 criteria on that basis.[37] Furthermore, the Tribunal identified that the sponsor's own evidence indicated she had managed to reside outside Australia without the applicant, and this was indicative of her ability to 'cope without him, emotionally, for a temporary period'.[38]
5. In relation to the parties' concerns raised regarding the high risk of transmission of COVID-19 in India should the parties be forced to reside there for any period, the Tribunal found that COVID-19 is a global pandemic and efforts were underway to find and produce a vaccine. It also noted that healthcare services are available in India, as were personal protective measures that could mitigate against contracting COVID-19. Further, the Tribunal observed the parties were neither aged nor had existing co-morbidities that would serve to heighten the risk of health complications should they contract COVID-19. On that basis, the Tribunal concluded that this was not a compelling reason not to apply the Schedule 3 criteria.[39]
6. In relation to the fertility concerns of the parties if the applicant was required to return to India and the sponsor was unable to join him there, the Tribunal addressed this by way of considering the prospect of the sponsor and applicant having the potential opportunity to meet outside Australia in order conceive a child. Two scenarios were considered:

(a) First, in relation to the prospect of the sponsor being unable to travel to India due to her Pakistani nationality, the Tribunal found:[40]

(i) despite tensions between Pakistan and India, there was no evidence that either the applicant or sponsor would face any 'personal threat to their well-being should either travel and stay in India'; and

(ii) the claims raised by the sponsor that Indian authorities might refuse her a visa, or may suspect her of being a 'spy', lacked any corroborating evidence.

(b) Secondly, the Tribunal found that the sponsor would be able to travel abroad to join the applicant, whether by way of joining him in India or a third country where they could both travel. In reaching that finding, the Tribunal identified a range of options whereby the couple could be reunited outside Australia, including: the sponsor joining the applicant in India by way of utilising the existing 'extended stay provisions' or the couple reuniting in a third country. In terms of availing themselves of these options, the Tribunal noted the parties were 'presently free under Australian law to seek exemptions to travel'.

1. On that basis, the Tribunal reached the following conclusion at [52]:

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.

1. The Tribunal accepted the parties' presence in Australia constituted a form of contribution to the Australian community but found this circumstance was not so forceful such that it compelled the Tribunal to not apply the Schedule 3 criteria.[41]
2. The Tribunal also considered the anticipated financial hardship to the parties, particularly the sponsor, should the applicant be required to return to India. While the Tribunal accepted the parties may likely face a degree of financial hardship, it was not satisfied this was a circumstance so forceful that would compel it not to apply the Schedule 3 criteria.[42]
3. On the basis of these matters, considered individually and collectively, the Tribunal was not satisfied that these amounted to compelling reasons for not applying the Schedule 3 criteria. On that basis, it determined that the applicant did not meet cl 820.211(2)(d)(ii).[43] Therefore, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 820 visa.[44]

1. Clause 820.211(2)(d)(ii) in Part 820 of Schedule 2 to the Regulations provides:

820.211

(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-either:...

(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. Schedule 3 to the Regulations specifies additional criteria applicable to unlawful non-citizens and certain bridging visa holders. Relevantly, criteria 3001, 3003 and 3004 provide:

3001

(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) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or

(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or

(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii) entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii) the last day when the applicant held a substantive or criminal justice visa; or

(iv) the day when the applicant last entered Australia unlawfully; or

(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of:

(i) the day when that last substantive visa ceased to be in effect; and

(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b) on 31 August 1994, the applicant was either:

(i) an illegal entrant; or

(ii) the holder of an entry permit that was not valid beyond 31 August 1994;

(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant has complied substantially with the conditions that apply or applied to:

(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(ii) any subsequent bridging visa; and

(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

(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;

(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

(e) the applicant has complied substantially with:

(i) the conditions that apply or applied to:

(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(B) any subsequent bridging visa; or

(ii) the conditions that apply or applied to:

(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(B) any subsequent bridging visa; and

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

1. The proceedings before this Court were initiated by way of an originating application filed on 4 December 2020. The application was accompanied by an affidavit affirmed by the applicant on 3 December 2020, attached to which was a copy of the Tribunal's decision record.
2. In this judicial review proceeding, the Court's task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; HCA 2. Two matters arise for determination in these proceedings.
3. First, by way of an amended application filed on 6 February 2025, the applicant raised one ground of review (reproduced below without alteration):

The Tribunal decision is affected by jurisdictional error as there was no evidence that the sponsor would be eligible for a travel exemption or extended period of stay provisions and there was no evidence there were third countries to which the applicant could travel given his visa refusal history in Australia.

1. At hearing before me on 18 February 2025, the applicant abandoned the part of this ground in which it had been alleged the Tribunal erred as there was no evidence of any 'third countries to which the applicant could travel given his visa refusal history in Australia'. Accordingly, the applicant proceeded solely on the basis there was an error in the Tribunal having made a finding that the 'sponsor would be eligible for a travel exemption or extended stay provisions' without any evidence to support that finding.
2. Secondly, by way of a further directions hearing held on 12 May 2025, I drew the parties' attention to an issue in relation to the proper construction of cl 820.211(2)(d)(ii). I observed the Tribunal, like the delegate, took the view that it was unnecessary to apply criteria 3003 and 3004 because it had found the applicant had not met criterion 3001. I queried whether the Tribunal, in having failed to apply, or consider the application of, criteria 3003 and 3004 as part of its assessment process, had misapplied the law and thereby failed to discharge the statutory task before it as required by cl 820.211(2)(d)(ii). I invited written submissions from the parties on this question, particularly in terms of whether the Tribunal was obliged to make findings against each of the criteria in 3001, 3003 and 3004 in order to be in a position to properly determine whether compelling reasons exist not to apply those criteria.
3. I now turn to consider each of these matters.

1. The applicant contends the Tribunal made a finding with no evidence that, despite the restrictions on travel due to COVID-19, the sponsor would be eligible for a travel exemption and be granted an extended stay in India pursuant to the extended period of stay provisions. Counsel for the applicant, Mr Godwin, argued that the Tribunal did not have any specialised knowledge about the eligibility for any exemption to pandemic-related travel restrictions. It was further argued that such exemptions were not a matter of common knowledge. On that basis, Mr Godwin submitted that there was no evidentiary basis for the Tribunal's 'assertion that the sponsor would receive an exemption'.[45]
2. At hearing, Mr Godwin drew my attention to the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential)(Overseas Travel Ban Emergency Requirements) Determination 2020 dated 25 March 2020, as made under s 477(1) of the Biosecurity Act 2015 (Cth) (Determination). He observed that this Determination was in effect in November 2020 when the Tribunal made its decision and submitted the Tribunal had no evidence before it to indicate the sponsor would have been granted a travel exemption by the Australian Border Force Commissioner or an Australian Border Force employee as required by the Determination. My attention was drawn to Item 7 of the Determination which provides for a person being granted an exemption from the requirement not to travel outside the Australian territory after 25 March 2020 where they demonstrate a compelling reason for needing to leave Australian territory. In relation to the sponsor's ability to travel, Mr Godwin acknowledged that it may be considered common knowledge the sponsor could potentially apply for a travel exemption pursuant to the Determination. However, Mr Godwin argued that there was no evidence before the Tribunal to support its finding that the sponsor could be granted an exemption, and therefore there was no evidence to support the finding that the sponsor was 'free' to travel to either India or to a third country.
3. The applicant further contends that the Tribunal's findings regarding the sponsor's eligibility for 'extended stay provisions' lacked an evidentiary foundation. It is unclear what the Tribunal understood by the term 'extended stay provisions', as no such provisions are referenced in Australian law. The Minister submits that the term refers to the sponsor's potential eligibility for an Indian spousal visa. According to the Minister, the eligibility of spouses of Indian nationals for such visas is either common knowledge or falls within the specialised knowledge of the Tribunal. At the hearing, the parties agreed that the 'extended stay provisions' relate to immigration requirements under Indian law, which, if satisfied, permit certain visa holders to remain in India for an extended period.
4. It is not in dispute that jurisdictional error may arise in circumstances where a Tribunal makes a finding with no evidentiary basis: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16 at [23]-[24]. However, I reject the suggestion that the Tribunal made a finding in the manner contended by the applicant. My concern with the applicant's contention is that it is based upon a mischaracterisation of the Tribunal's reasons and an erroneous assumption that the Tribunal was under some obligation to make a finding about whether the sponsor would be permitted to travel outside Australia so as to reunite with the applicant in India or a third country in order to address their 'fertility concerns'.
5. It is important to recognise at [51] of its reasons the Tribunal rejected the sponsor's claim 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. It rejected that claim because it lacked corroborative evidence. It is implicit in the making of that finding that it had not been persuaded by any argument raised by the parties that the sponsor would have difficulty securing a visa to enter and remain in India for a period. Having made that finding, the Tribunal turned to consider whether the parties' plan to start a family might be impeded by a period of temporary separation while an offshore partner visa application was being considered by the Minister's Department and, if so, whether that could amount to a compelling reason not to apply the Schedule 3 criteria. It is helpful at this juncture to examine the language of [52] of the Tribunal's reasons:

In respect to the parties 'fertility concerns,' and the lengthy timelines the parties may have to wait should for 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. In my view, the Tribunal did not make, or purport to make, a finding about the applicant's eligibility for a travel exemption or the prospects of further permission to remain in India pursuant to the extended period of stay provisions. Nor was there any obligation for it to do so. Rather, as the Minister's representative, Mr Wang, submitted at hearing, the Tribunal at [52] of its decision made comments or observations about the availability of options for the sponsor to travel outside Australia to visit the applicant in India or a third country. Read fairly, the Tribunal's finding is that there were options available for the parties to be reunited outside Australia while an offshore Australian temporary partner visa application was being processed by the Minister's Department and these options had not been exhausted. It must be understood that this finding was reached in the absence of any evidence or argument before the Tribunal suggesting the sponsor's request for a travel exemption would be refused by the Australian Border Force Commissioner or an Australian Border Force employee. Similarly, there was an absence of persuasive evidence and argument pertaining to the Indian authorities refusing the sponsor access to the extended period of stay provisions. In that context, the Tribunal ultimately found the existence of options which did not foreclose the prospect of the parties being reunited offshore gave rise to a set of circumstances that were not so forceful as to compel it not to apply the Schedule 3 criteria in this case.
2. Finally, I find considerable force in the Minister's submissions that whilst the Tribunal's obligation under s 368(1)(c) and (d) of the Act is to set out in its findings on any material questions of fact and the evidence upon which those findings are based, the sponsor's eligibility to obtain a travel exemption or secure an extended stay in India was not a question of fact to be determined by the Tribunal. Accordingly, I am unpersuaded by the applicant's argument that the Tribunal had fallen into jurisdictional error by permissively noting options available to the sponsor in order to facilitate her travel and residence with the applicant outside Australia, without making a finding about her eligibility in securing a positive outcome in relation to any option pursued.
3. Accordingly, jurisdictional error does not arise in relation to the applicant's sole ground of review.

Secondary matter - proper construction and application of cl 820.211(2)(d)(ii)

1. In the course of proceedings, an issue arose in relation to the proper construction and application of cl 820.211(2)(d)(ii). I observed the Tribunal, like the delegate, took the view that it was unnecessary to apply criteria 3003 and 3004 because it had found the applicant had not met criterion 3001. I queried whether the Tribunal, in not having applied or considered the application of criteria 3003 and 3004 as part of its assessment process, had misconstrued and misapplied the law, thereby failing to discharge the statutory task before it as required by cl 820.211(2)(d)(ii). I invited written submissions from the parties on this question, particularly in terms of whether the Tribunal was obliged to make findings against each of the criteria in 3001, 3003 and 3004 in order to be in a position to properly determine whether compelling reasons existed not to apply those criteria. I am grateful to the parties for their written submissions in relation to this secondary matter and, to the extent they are relevant, will address them below.
2. As stated above, the Tribunal formed the view that, because criterion 3001 had not been met, it was not required to consider criteria 3003 and 3004. This raises the question of whether such an approach to discharging its statutory task - namely, the deliberate decision not to consider whether the applicant met criteria 3003 or 3004 - gives rise to jurisdictional error. In my view, it does because the absence of such consideration deprives the Tribunal of a proper appreciation of the nature and extent to which the applicant has failed to satisfy the applicable Schedule 3 requirements. Without that understanding, the Tribunal has no reference point from which it must be compelled not to apply the Schedule 3 criteria taking into account the reasons put forward by the applicant. An understanding of the degree to which a non-citizen has failed to meet the applicable criteria in Schedule 3 is essential to informing a lawful determination of whether such non-compliance may be overlooked, overcome or 'waived' (to adopt common parlance) on the basis that there are sufficiently compelling reasons to do so.
3. Schedule 3 specifies additional criteria for most visa applicants who are in Australia and, at the time of making their visa application, are not the holder of a substantive visa. Taking into account the object of the Act, as defined in s 5(1), 'is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens', Schedule 3 clearly operates in alignment with that object so as to incentivise non-citizens in Australia to remain in Australia as holders of substantive visas.
4. In circumstances where a Subclass 820 visa applicant does not hold a substantive visa and does not meet the requirements of cl 820.211(d)(i), a decision-maker must proceed to assess the applicant against the requirements of cl 820.211(2)(d)(ii). In my view, the proper approach towards undertaking that assessment requires the decision-maker to first assess whether the applicant satisfies each of Schedule 3 criteria 3001, 3003 and 3004. That first step involves the making of findings of fact in relation to a range of requirements specified within each of criteria 3001, 3003 and 3004. In a case such as this, where an applicant was not in Australia on 31 August 1994 and ceased to hold a substantive visa or criminal justice visa after 1 September 1994, an application of criteria 3001, 3003 and 3004 reveals eight specific requirements to be met:

(a) Criterion 3001 - the requirement for the applicant to have made their visa application within 28 days of the date they last held a substantive visa;

(b) Criterion 3004(c) - the requirement for the applicant to have become a person not holding a substantive visa due to factors beyond their control;

(c) Criterion 3004(d) - the requirement for there to be compelling reasons for granting the visa;

(d) Criterion 3004(e) - the requirement for the applicant to have complied substantially with certain visa conditions imposed upon the last substantive visa they held and any subsequent bridging visa;

(e) Criterion 3004(f) - the requirement for the applicant to have been entitled to be granted a visa of the class applied for if they had applied for the visa on the day when they last held a substantive visa or criminal justice visa;

(f) Criterion 3004(g) - the requirement for the applicant to satisfy the decision-maker that they intend to comply with any conditions subject to which the visa is granted; and

(g) Criterion 3004(h) - the requirement for the last visa or entry permit (if any) held by the applicant to not be subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

1. A decision-maker's evaluation of these eight specific requirements involves the making of findings which reveal how the applicant has complied with Australian immigration laws in the past and intends to do so in the future, whether the applicant gained visa eligibility by remaining unlawfully in Australia, and whether there are compelling reasons to grant the visa. Where a decision-maker has determined each of the eight specific requirements in the applicant's favour, they must conclude that cl 820.211(2)(d)(ii) has been satisfied. In all other cases, the decision-maker must proceed to assess whether there are 'compelling reasons' not to apply Schedule 3 criteria 3001, 3003 and 3004. In undertaking that assessment, it is appropriate that a decision-maker consider their antecedent findings in relation to each of these eight specific requirements, so as to properly appreciate the nature and extent of the applicant's non-compliance with the applicable Schedule 3 criteria. That approach ensures the decision-maker is fully informed of the circumstances surrounding the applicant's failure to satisfy the relevant Schedule 3 requirements before lawfully determining whether those criteria should not apply on the basis of sufficiently compelling reasons.
2. In my view, any departure by a decision-maker from this approach gives rise to jurisdictional error. For instance, it is difficult to conceive how a decision-maker could lawfully determine they have been sufficiently compelled not to apply the relevant Schedule 3 criteria - so as to conclude that an applicant satisfies cl 820.211(2)(d)(ii) - without first making findings under each of those criteria and appreciating the circumstances surrounding those findings. Without such an evaluative foundation, the assessment of whether compelling reasons exist lacks both legal and factual legitimacy. Put another way, the degree to which a decision-maker finds an applicant's reasons to be forceful so as compel them not to apply the Schedule 3 criteria will be informed by the degree to which the applicant has not met those same criteria. For example, an applicant's reasons not to apply the Schedule 3 criteria would, in my view, not need to be as compelling in circumstances where they only failed to meet the requirement in criterion 3001 because they filed their application one day after the 28 day period prescribed, than if they had also failed to meet various requirements in 3004 because they had a long history of breaching visa conditions and only became eligible to meet the criteria for a Subclass 820 visa by becoming an unlawful non-citizen in order to spend additional time in the Australian community to locate a potential sponsor with whom they could establish a spousal or de facto relationship.
3. In the present case, the Tribunal's failure to engage with all relevant statutory criteria, particularly those in criterion 3004(c) - (h) so as to inform its determination as to whether compelling reasons existed, gave rise to error. That error is perhaps best characterised as one where the Tribunal has misconstrued the relevant legislation and thereby misconceived the nature of the function it was performing and thereby failed to perform the statutory task required.

1. In coming to the above conclusions, I have taken into account the parties submissions.
2. By way of supplementary written submissions, Counsel for the applicant raised two distinct arguments in relation to the secondary matter. The first argument concerned the validity of cl 820.211(2)(d)(ii). An alternative argument concerned the proper construction of that provision. In support of the alternative argument, reference was made to the High Court's judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; HCA 37 (AUS17).
3. The Minister's representatives provided supplementary written submissions in which a number of arguments and points were raised. The first submission, concerning the proper construction and application of cl 820.211(2)(d)(ii), relied heavily upon an interpretation of the Full Court's judgment in Singh v Minister for Home Affairs [2020] FCAFC 7; (2020) 274 FCR 506; FCAFC 7 (Singh). The second submission sought to distinguish AUS17 and extensively referred to extrinsic material and judicial authorities so as to draw my attention to how Parliament and the courts have understood what the proper construction and application of cl 820.211(2)(d)(ii) must entail. A third submission addressed the question of materiality.
4. I now turn to address those submissions.

1. First, Mr Godwin submitted that cl 820.211(2)(d)(ii) is invalid as it provides a criterion which is internally illogical. This is because nobody can satisfy both criteria 3003 and 3004 as criterion 3003 only applies to people who did not hold substantive visas after 1 September 1994 and entered Australia prior to that date whereas criterion 3004 only applies to people who have held substantive visas after 1 September 1994 or who unlawfully entered Australia after that date. The two groups are mutually exclusive so no person can be a member of both. Mr Godwin argued that the provision is invalid 'because no particular act or thing can be brought within the scope of what is expressed unintelligibly': citing Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227; HCA 5.
2. While I appreciate the observation that nobody can strictly satisfy criteria 3003 and 3004, it is clear from those criteria that they are addressed to two different groups and operate disjunctively. Each criterion begins with the word 'If', a conditional clause, and thereafter provides a description of characteristics to be held by an applicant before specifying a range of criteria to be satisfied. In the present case, the applicant is not caught by the operation of criterion 3003 and is therefore not required to satisfy that criterion for the purposes of any assessment against 820.211(2)(d)(ii). Instead, the applicant is clearly caught by the operation of criterion 3004 and therefore required to satisfy that criterion for the purposes of any assessment against 820.211(2)(d)(ii). I read as implicit in cl 820.211(2)(d)(ii) words of extension that acknowledge an applicant need only satisfy criterion 3003 or 3004 as that 'modified construction' is consistent with the language in fact used by the legislature in Schedule 3: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; HCA 9 at [37]-[40]. I therefore reject the contention that cl 820.211(2)(d)(ii) is invalid.

The applicant's alternative construction argument

1. In the event I were to reject the applicant's invalidity argument, as I have so done above, Mr Godwin submitted that if cl 820.211(2)(d)(ii) is construed as 'the applicant satisfies Schedule 3 criteria 3001 and either 3003 or 3004', then the Tribunal must make findings about each of the applicable Schedule 3 criteria before moving to assess whether compelling circumstances exist to waive them. By way of example, Mr Godwin drew my attention to Waensila (per Griffiths J at [44]-[46]) where a similar construction was accepted by the parties so the Court was not called upon to determine its correctness. Mr Godwin argued that while criterion 3003 did not apply to the applicant's circumstances because he held a substantive visa after 1 September 1994, the Tribunal did not determine whether various requirements within criterion 3004 had been met. Mr Godwin argued '[t]his was a jurisdictional error as consideration of these matters would inform the Tribunal's assessment of whether compelling circumstances existed such that the criteria be waived'.[46] I agree with Mr Godwin's submissions to the extent that they are consistent with my foregoing reasons and with my conclusion on materiality set out below.

1. Mr Godwin further argued that his position on the proper construction of cl 820.211(2)(d)(ii) was analogous to how the former s 473DD of Act was construed by the High Court in AUS17. He did not provide any submissions explaining the analogous construction but drew my attention to the High Court plurality's reasons in AUS17 at [11]:

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

1. By contrast, the Minister's representatives submitted the High Court's reasoning in AUS17 is not applicable. It was argued that s 473DD required specific factors to be considered in assessing 'exceptional circumstances'. In contrast, cl 820.211(2)(d)(ii) imposes a single test of requiring 'the Minister [to be] satisfied that there are compelling reasons for not applying [Schedule 3 criteria 3001, 3003 and 3004]'.
2. While I accept the provisions under consideration are different, I observe they are analogous to the extent they each commence with the imposition of a requirement, then provide for an exception to that same requirement. In any event, the outcome in this case depends upon the interpretation of the particular provision in question. My construction of cl 820.211(2)(d)(ii) takes into account the specific language of that provision and its interaction with the language in Schedule 3.

1. The Minister submitted that any argument that the Tribunal fell into jurisdictional error (because its failure to consider criteria 3003 and 3004 misinformed its subsequent assessment of whether there were 'compelling reasons' for not applying the Schedule 3 criteria) was foreclosed by binding authority from the Full Court. My attention was drawn to Singh where the Full Court held (Derrington at [40]-[41]; Logan J agreeing at [1]; Reeves J agreeing at [15]):

[40] The requirement of Schedule 3 criterion 3001 was that the visa applicant had made the application within 28 days after the relevant date, being the date on which the applicant's last substantive visa expired. It is not doubted that the appellant did not make his application within that time. As the initial requirements in cl 820.211(2)(d)(ii) are cumulative, there is no need to consider Schedule 3 criteria 3003 and 3004.

[41] It followed that the requirements which were to be satisfied at the time of the application might only have been met if the Minister was satisfied that there are compelling reasons for not applying those [Schedule 3] criteria.

1. It was submitted Singh made clear that the initial requirements in cl 820.211(2)(d)(ii) are cumulative, such that where criterion 3001 is not satisfied there is no need to consider criteria 3003 and 3004. On that basis, it was further submitted that where an applicant does not satisfy criterion 3001 and the Minister (or Tribunal) is not satisfied there are 'compelling reasons' for not applying criterion 3001, it is not a mandatory statutory requirement for the decision-maker to proceed to separately consider criteria 3003 and/or 3004.
2. I do not read Singh in the manner contended by the Minister. The lack of need to consider Schedule 3 criteria 3003 and 3004 once it had been found criterion 3001 had not been met, as stated by the Full Court, only pertains to whether it will become necessary to assess whether compelling reasons exist rather than consider whether the reasons proffered by the applicant are so compelling. In that sense, the constructional approach in my foregoing reasons is not foreclosed by Singh. Put simply, an applicant need only fail to meet any one of criteria 3001, 3003 and 3004 in order to then be required to demonstrate that compelling reasons exist. However, when assessing whether any reason, or combination of reasons, is compelling, the decision-maker must still have assessed whether the applicant has satisfied each of criterion 3001, 3003 and 3004 as that analysis informs the extent to which the decision-maker is to be compelled not to apply those criteria in any given case. The Full Court was not called upon to consider, and therefore did not determine, whether a contrary interpretation was required.

The Minister's reliance upon extrinsic materials and other judicial authorities

1. The Minister further submitted there is nothing in the Explanatory Statement to Migration Regulations (Amendment) 1996 No 75 (Cth) (Explanatory Statement) to suggest that, where an applicant does not satisfy criterion 3001 and the Minister is not satisfied there are compelling reasons for not applying this criterion, there is a separate duty imposed upon the Minister to consider whether the applicant satisfies criteria 3003 and 3004, and to then take that assessment into account in the assessment of whether there are compelling reasons for not applying the requisite criteria. The Minister further argued that the reference to 'greater flexibility' in the Explanatory Statement 'indicates a degree of decisional freedom such that the matters which might be taken into account in forming the state of mind are unconfined, which is coordinate with the unconfined manner in which the task is imposed on the decision-maker: citing Singh at [61]. The Minister suggests that the decisional freedom provided by that Explanatory Statement is also consistent with the Minister not being required to form the state of satisfaction prescribed by cl 820.211(2)(d)(ii) in any particular way, or by reference to some specific formula that is not expressed in the statutory text; citing, by way of example, AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; FCAFC 105 at [55] (Allsop CJ, Robertson and Griffiths JJ). The Minister then provided a brief survey of a range of propositions from various authorities to describe how the assessment in cl 820.211(2)(d)(ii) is to be approached.
2. I reject these submissions. While the Explanatory Statement does not expressly endorse the proposed construction, it need not do so - and nor does it suggest that such a construction is impermissible. Further, my construction of the provision does not infringe upon the scope of any decisional freedom in assessing what may constitute 'compelling reasons' in a given case. Rather, it serves to guide the decision-maker by identifying relevant matters to be considered prior to undertaking such an assessment. Those matters arise out of the provision itself and have not been otherwise improperly introduced, or read, into the decision-maker's evaluative task of reaching the requisite state of satisfaction required by cl 820.211(2)(d)(ii).

1. Finally, the Minister argued that even if an error were found to lie because the Tribunal did not separately consider each of criterion 3001, 3003 and 3004, that error would not be material and therefore give rise to jurisdictional error. The Minister's argument warrants repetition rather than summary:

Here, the Tribunal held there were no "compelling reasons" to not apply criterion 3001, and it was comprehensive in considering the evidence and submissions before it on that question (CB 377-381, [25]-[56]). There is no realistic possibility that the decision that was made in fact could have been different had the Tribunal gone on and considered criteria 3003 and 3004. The Applicant did not make submissions on "compelling reasons" with separate reference to each, or any, of criteria 3001, 3003 and 3004. Rather, the Applicant provided a single bundle of documents and requested that the Tribunal consider those materials "in relation to [the] compelling reasons" that exist in the Applicant's case (CB207). In those circumstances, the inevitable conclusion is that the Tribunal would have considered the same matters that it took into account in respect of criterion 3001 to assess whether there were compelling reasons for not applying criteria 3003 and 3004, and the same ultimate conclusion would have been reached.

(emphasis in original)

1. I reject this submission. In misunderstanding the applicable law, the Tribunal did not ask itself the right question and thereby failed to turn its mind to the nature and extent of the applicant's satisfaction of each of the relevant requirements in criterion 3004 (as they applied in this case) which would then have informed its assessment as to whether the reasons proffered by the applicant were compelling. In so doing, the discharge of statutory task miscarried. In my view, had the error not occurred, there was a realistic possibility the outcome could have been different, as the Tribunal would have had a properly informed understanding of the applicant's circumstances before proceeding to consider whether any reasons existed that were sufficiently compelling to warrant a decision not to apply the Schedule 3 criteria: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321; HCA 12 at [7].

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

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[45] Applicant's Written Submissions filed 6 February 2025.

[46] Applicant's Written Submissions filed 2 June 2025, [8].