Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1468

1. By way of Application filed on 21 December 2020, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 24 November 2020 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa (Visa) as the Applicant did not satisfy cl 820.211(2)(d) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
3. The hearing of the Application took place at the Melbourne Registry of the Court on 1 September 2025 (Hearing). Both the Minister and the Applicant were represented by counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant met cl 820.211(2)(d) of the Regulations, or that there were compelling reasons to waive the Schedule 3 criteria for the grant of the Visa (Criteria).

1. The Applicant is a citizen of India.
2. On 4 May 2008, the Applicant arrived in Australia as the holder of a 573 student visa which ceased on 3 June 2008.[2]
3. The Applicant was granted a second 573 student visa.[3]
4. On 2 September 2010, the Applicant's second 573 student visa ceased.[4] The Applicant applied for a 572 student visa on date same.[5]
5. On 14 December 2010, a Delegate of the Minister refused the Applicant's 572 student visa application.[6]
6. On 13 January 2011, the Applicant applied to the Tribunal, then the Migration Review Tribunal (MRT) for review of the Delegate's 572 visa refusal.[7]
7. On 13 September 2011, the MRT affirmed the Delegate's refusal decision.[8]
8. On 12 October 2011, the Applicant applied for Ministerial Intervention which was subsequently refused on 19 January 2012.[9]
9. On 2 February 2012, the Applicant again applied for Ministerial Intervention which was refused on 20 February 2012.[10]
10. On 27 February 2012, the Applicant was granted a Bridging Visa E on departure grounds.[11]
11. On 5 March 2012, the Applicant was granted a further Bridging Visa E on departure grounds.[12]
12. On 29 June 2018, the Applicant applied for the Visa,[13] the subject of these proceedings. The Applicant applied for the Visa on the basis of his relationship with his sponsor and wife, Ms Dilraj Kaur Sangha (Sponsor).[14]
13. On 3 July 2018, the Applicant was granted a Bridging Visa E in association with his Visa application.
14. On 17 August 2018, a Delegate of the Minister invited the Applicant to comment on information in relation to the Visa application.[15]
15. On 3 September 2018, the Applicant responded to the invitation with supporting documents enclosed.[16]
16. On 3 December 2018, a Delegate of the Minister refused to grant the Visa application (Delegate's Decision) on the basis that they were not satisfied that the Applicant met cl 820.211(2)(d) in the Regulations.[17]
17. On 19 December 2018, the Applicant applied to the Tribunal for review (Review Application)[18] and appointed a migration agent as his representative (Applicant's Representative).[19]
18. On 19 December 2018, the Tribunal acknowledged receipt of the Review Application.[20]
19. On 26 July 2020, the Applicant's Representative provided the Applicant's updated address details to the Tribunal.[21]
20. On 7 October 2020, the Tribunal invited the Applicant to attend a hearing on 22 October 2020.[22]
21. On 8 October 2020, the Applicant's Representative requested that the hearing be changed to a video hearing.[23]
22. On 12 October 2020, the Tribunal allowed for the scheduled hearing to proceed by video.[24]
23. On 19 October 2020, the Applicant's Representative wrote to the Tribunal and enclosed supporting documents.[25]
24. On 22 October 2020, the Applicant attended the video hearing with the assistance of his Representative, Sponsor and a Punjabi interpreter.[26]
25. On 24 November 2020, the Tribunal affirmed the Delegate's Decision under review.[27]
26. On 25 November 2020, the Tribunal provided written reasons for the Tribunal's Decision to the Applicant.[28]

1. The Tribunal's Decision is at 342 to 354 of the Court Book.
2. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [1] to [7].
3. The Tribunal identified the critical issue on review as being whether the Applicant met the Criteria.[29] The Tribunal noted that the Applicant did not lodge his Visa application until 29 June 2018, being nearly 8 years since he last held a substantive visa.[30] As the Visa application was not made within the prescribed 28 day period, the Tribunal found that the Applicant failed to satisfy cr 3001 of the Regulations.[31] The Tribunal proceeded to consider whether there were compelling reasons not to apply the Criteria.[32]
4. The Tribunal rejected the Applicant's argument in relation to the Convention on the Rights of the Child (CRC).[33] The Tribunal did not consider the best interests of the child, as a compelling reason to waive the Criteria.[34] The Tribunal noted that the Applicant could lodge a valid Visa application offshore on the basis of his genuine and continuing relationship with the Sponsor.
5. The Tribunal accepted that Australia on average has a higher standard of living than India.[35] The Tribunal noted that if the Applicant were to re-apply for the Visa offshore, there was no strict requirement for his daughter to join him overseas. The Tribunal found that the potential impact of the Applicant's relocation on his daughter were not compelling reasons to waive the Criteria.
6. The Tribunal accepted that there would be a degree of hardship if the Applicant were to re-apply for the Visa whilst offshore.[36] However, the Tribunal found that the Applicant and Sponsor could maintain ongoing emotional care through social media and telephonic communication.[37] The Tribunal found that temporary hardship did not constitute a compelling reason.[38] Whilst accepting that hardship could sometimes constitute a compelling reason, the Tribunal found that no such hardship existed on review.[39] Similarly, the Tribunal did not accept the risk that one parent would become incapacitated or unwell as a compelling reason.[40]
7. The Tribunal accepted that the Applicant provided some support to his daughter, as well as household and business support.[41] Nonetheless, the Tribunal found the Applicant's evidence in relation to assistance he provided to the Sponsor's business as "vague and tenuous".[42] The Tribunal found that there was no "actual evidence" of the work the Applicant undertook in support of the Sponsor's business. The Tribunal found that the potential and claimed impact of the Applicant's departure on the Sponsor's business was not a compelling reason.[43]
8. The Tribunal accepted that ownership of property and a mortgage was a significant commitment.[44] However, the Tribunal found that mortgage repayments by the Sponsor were not a compelling reason.[45]
9. The Tribunal accepted that the Applicant and Sponsor had been in a matrimonial relationship since 2011.[46] However, the nature and duration of the relationship alone did not amount to a compelling reason to waive the Criteria.[47]
10. The Tribunal was not satisfied that there were compelling reasons to waive the Criteria and found that the Applicant failed to meet cl 820.211(2)(d)(ii) of the Regulations.[48]

1. On 21 December 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 11 August 2021, Orders were made by Registrar Van Der Westhuizen of this Court for the First Respondent to file and serve: a Court Book. For the Applicant to file and serve 28 days before the hearing: any amended application, any affidavits, any supplementary Court Book and written submissions. For the First Respondent to file and serve 14 days before the hearing: written submissions and any affidavits.
3. On 6 August 2025, an Amended Application was filed in this Court.
4. This matter was heard on 1 September 2025 for a Final Hearing before me.
5. The Applicant relied upon the following documents:

(a) The Application filed 21 December 2020;

(b) Affidavit of Carina Ford affirmed 21 December 2020 (Affidavit of Carina Ford affirmed 21 December 2020);

(c) Affidavit of Carina Ford affirmed 4 August 2025 (Affidavit of Carina Ford affirmed 4 August 2025);

(d) Amended Application filed 6 August 2025;

(e) Outline of Submissions filed 6 August 2025; and

(f) List of Authorities filed 29 August 2025.

(a) The Response, filed 18 January 2021;

(b) The Minister's Outline of Submissions filed 25 August 2025; and

(c) List of Authorities filed 29 August 2025.

1. Both parties relied on the Court Book.
2. The Amended Application contains the following grounds of review (Grounds of Review):
   1. The Tribunal failed to consider a clearly articulated argument to the effect that the Tribunal should act in accordance with Ar 3(1) of the Convention on the Rights of the Child. (Ground 1).
   2. The Tribunal failed to consider important evidence relating to applicant's care for his daughter. (Ground 2).
   3. The Tribunal's description of the applicant's evidence as to his care for his daughter as "vague" and "tenuous" was unintelligible. (Ground 3).
   4. The Tribunal failed to afford the applicant a fair hearing as required by s 360(1) of the Migration Act, as it did not notify the applicant of an issue in the review relating to the need for more particularity as to the details of the applicant's parenting of his daughter. (Ground 4).
   5. The Tribunal failed to consider evidence in the review, relating to the applicant performing work for his wife's business (Ground 5).

1. On 3 September 2025, my Chambers wrote to the parties by way of email asking whether the Applicant sought to rely on Papadopoulos J's reasoning in Singh:[49]

Dear Parties

MLG4353/2020 - HARVINDER SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

I refer to the above matter.

In the course of considering the materials filed by the Parties, it has come to the attention of the Court that the Applicant has included extracts from the decision of Papadopoulos J in Singh [2025] FedCFamC2G 1260 in its bundle of cases, esp. at pdf 338 (case at [65]).

There is no corresponding reference in the written submissions to the highlighted issue, and the decision was not raised in oral submissions.

Does the Applicant's case include the contention that is highlighted at pdf 338?

His Honour will consider how to proceed in light of the Applicant's response.

(Words as written)

1. On date same, my Chambers received correspondence from the Applicant's solicitor, Ms Merlino:

Dear Associate

We refer to your email below.

The Applicant confirms that he does not rely on Singh [2025] FedCFamC2G 1260.

Please contact me with any queries.

(Words as written)

1. On 10 September 2025, my Chambers wrote to the parties by way of email:

Dear Practitioners

MLG4353/2020 - HARVINDER SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

I refer to the above matter and our previous correspondence dated 3 September 2025 (see email below).

Please be advised that an appeal was filed by the First Respondent today in respect of the decision in Singh [2025] FedCFamC2G 1260.

Please advise Chambers if either party contends that this is a matter that ought to delay the publication of judgment tomorrow, 11 September 2025.

(Words as written)

1. On date same, my Chambers received correspondence from the Applicant's solicitor, Ms Merlino:

Dear Associate

We refer to the email below.

The Applicant does not contend that this is a matter that ought to delay the publication of judgment tomorrow, 11 September 2025.

Please contact me with any queries.

(Words as written)

1. On date same, my Chambers received correspondence from the Minister's solicitor, Ms Petrovski:

Dear Associate,

Thank you for your email.

The Minister agrees that the filing of an appeal in respect of the decision in Singh [2025] FedCFamC2G 1260 ought not to delay the publication of judgment tomorrow.

...

(Words as written)

1. The Applicant notes that cl 820.211(2)(d) of the Regulations relevantly provides that "the applicant satisfies Schedule 3 cr 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria."
2. The Applicant submits that he did not satisfy the Criteria, however, the issue was whether there were any compelling reasons to not apply the Criteria.
3. The Tribunal found that there were no compelling reasons. However, the Applicant notes it is open for him to seek a 309 partner visa offshore, being a different subclass, which is why the Tribunal spoke of this possibility in its reasons.

1. The Applicant submits that Australia's obligations under the CRC was a "compelling reason" for waiving the Criteria. The Applicant notes that this was a "clearly articulated argument" made to the Tribunal by way of written submissions prior to the hearing.[50]
2. The Applicant notes that Article 3(1) of the CRC (Art 3(1)) contains a relevant obligation. The Applicant contends it is correct to point out that Australia has such obligations at international law. However, the Applicant accepts that the substance of this obligation was articulated incorrectly by the Applicant's previous Representative.
3. The Representative wrote:[51]

All organisations concerned with children should work towards what is best for each child.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

1. The reference to Art 3(1) should be regarded as sufficient and the Applicant submits that the Tribunal should have treated the best interests of the child as a primary consideration. The Applicant notes that the Tribunal "rejected" this argument in its reasons.[53]
2. The Applicant accepts that the Tribunal's discussion on the CRC was as a consequence of the Applicant's own argument. The Applicant submits that this argument, as articulated by the previous Representative, was incorrect. The Applicant notes that the CRC does not command any particular "outcome" in immigration cases.
3. The Applicant contends that the Tribunal erred by giving no attention to the procedural elements of Art 3(1), these two elements being:

(a) a need to identify what course of action is in the best interests of the child; and

(b) a need to give primary consideration to what is in the best interests of the child.

1. The Applicant accepts that the Tribunal gave close attention to the interests of the child at a factual level. However, the Applicant contends that the CRC requires that factual issues relating to the interests of the child be treated in a "particular way" as a primary consideration.
2. The Applicant contends that the Tribunal was required to "read, identify, understand and evaluate" the Applicant's clearly articulated arguments.[54]
3. The Applicant submits that where Art 3(1) of the CRC is relied upon, the Tribunal must "understand and evaluate" the argument and provide a lawful reason for not doing so. The Tribunal appears to have relied on the case of Singh v Minister for Home Affairs [2020] FCAFC 7 (Singh [2020])[55] at [62] to reject the Applicant's argument that international law considerations were relevant. The Applicant contends that Singh [2020] says nothing about circumstances where an applicant clearly raises an argument based on Art 3(1) and requests the Tribunal to act in accordance with Australian law.
4. The Applicant does not claim that the Tribunal was necessarily required to comply with Art 3(1). However, the Tribunal was required to understand that it was being asked to act in accordance with Art 3(1).
5. The Applicant submits that international law is not a mere trifling matter. It is a species of law,[56] to be treated with commensurate dignity. The notion of "primary consideration" is simply, in error and not discussed by the Tribunal.
6. The Applicant submits that the best interests of the child ranks, conceptually, equal to the interests associated with the Applicant's migration history. The Applicant notes that this argument bears similarities with the case of BRN20 v Minister for Immigration and Multicultural Affairs (BRN20).[57] However, unlike BRN20, the present case is not one where a decision-maker decides for themselves whether they need to address the CRC.

1. The Tribunal described the Applicant's evidence as to what he did for his daughter as "both vague and tenuous".[58]
2. The Applicant explained to the Tribunal that he did "everything" for his daughter. The Applicant submits that this statement is far from vague but rather should be understood to mean that he does all of the parenting for his daughter.
3. The Applicant contends that it is unclear what the Tribunal meant by "tenuous" in its reasons. The Applicant submits that the evidence provided to the Tribunal from the Applicant and his wife at the hearing does not align with this statement.
4. The Applicant submits that the Tribunal's description of the evidence as "vague" was unintelligible. The Applicant submits that this characterisation amounts to an illogical, irrational or legally unreasonable finding or reasoning.[59] The Applicant submits that the Tribunal's use of the word "tenuous" amounts to a failure to consider and understand the evidence before it.
5. The Applicant submits that procedural fairness was not afforded to him as the Tribunal failed to draw the Applicant to the requirement for particularised evidence regarding care given to his daughter. The Applicant submits that the Tribunal erred by failing to notify the Applicant of an issue arising on review.[60] The Applicant submits that this is a "particularly serious unfairness" in circumstances where the Tribunal made findings without drawing the Applicant's attention to the issue before it.

In relation to the work the sponsor states the applicant provides to her business, the Tribunal notes there is no actual evidence of the work the applicant actually undertakes for the sponsor.

1. The Applicant submits that there was "actual evidence" put before the Tribunal, in the form of the Sponsor's testimony at the hearing.[62]
2. The Applicant submits that the Tribunal failed to consider this evidence.
3. The Applicant's counsel expanded upon his written submissions orally at the Hearing.

1. The Minister submits that the Applicant's Grounds of Review fail to establish jurisdictional error and that the Application should be dismissed.

1. The Applicant asserts that the Tribunal failed to consider his argument that the best interests of the child should be treated as a "primary consideration".[63] The Minister notes that the Applicant's Representative made a general submission in relation to the CRC. The submission amounted to no more than an argument that the best interests of the child was a "compelling reason" for waiving the Criteria.
2. The Minister submits that this ground merely asserts that the Tribunal was required to consider the bests interests of the child as a matter of law.[64] The Minister contends that the Tribunal was not required to undertake a more detailed analysis of the CRC and that this approach aligns with Singh [2020].[65]
3. The Minister notes that a decision-maker has a degree of "decisional freedom" in forming the required state of mind when assessing whether compelling reasons exist.[66] The Minister submits that the Tribunal had regard to the Applicant's assertions and based on the evidence before it concluded that:[67]

[it] does not consider the general argument concerning the best interests of the child represents in the circumstances of this case a reason for it to waive the Schedule 3 criteria.

1. The Minister submits that any misapplication of the CRC would not invalidate the Tribunal's Decision.[68]
2. The Minister further submits that the case of BRN20 is distinguishable from the present case. Here, the Applicant does not contend that the Tribunal considered but misapplied a principle of international law. The Minister submits that BRN20[69] was "wrongly decided" and inconsistent with the Full Court of the Federal Court's decision in NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (NRFX).[70] In NRFX, the court held that Article 9(1) of the CRC did not apply to the deportation of a parent.[71]

(a) The Tribunal failed to consider important evidence relating to care for his daughter and that the evidence was described as "vague" and "tenuous";

(b) The description was unintelligible; and

(c) The Tribunal failed to afford the Applicant a fair hearing as it did not notify the Applicant of the need for further particulars in relation to his parenting.

1. The Applicant asserts that specific oral evidence relating to the care he provided for his daughter was not considered by the Tribunal.
2. In relation to these grounds, the Minister notes the principle from Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259:[72]

the reasons for the Tribunal's decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

1. The Minister notes that it was open for the Tribunal to describe the Applicant's oral testimony as "vague and tenuous" in the absence of detailed evidence.[73] The Minister submits that the word "tenuous", in context, was used by the Tribunal on the basis that the evidence before it was weak. The Minister submits that this finding was not outside the bounds of legal reasonableness. Regardless, the Tribunal accepted that the Applicant provided "some support" to the Sponsor, including the care of their child.[74]
2. In relation to the procedural fairness allegation, the Minister notes that the Applicant was on notice of the dispositive issue on review from the Delegate's Decision. The Tribunal's description of the evidence as "vague and tenuous" was part of its subjective assessment of the Applicant's evidence. The Minister contends that the Tribunal was not required to invite the Applicant to comment on the evidence under s 359A.[75]

1. The Applicant asserts that the Tribunal failed to consider the Sponsor's oral evidence at the hearing regarding the work he did for her business.
2. The Tribunal found that there was no "actual evidence" of the work the Applicant undertook for the Sponsor. The Minister contends that this finding is not indicative of the Tribunal "failing" to consider the Sponsor's oral evidence. The better inference is that the Tribunal made the decision based on the lack of detailed evidence put forward to support assertions made at the hearing.
3. The Minister submits that even if there was a failure to consider the Sponsor's oral evidence, such an error was immaterial. The Minister notes the vague nature of the evidence and the overall limited evidence as to the Applicant's involvement in the Sponsor's business. On this basis, the Minister submits that the Tribunal's Decision could not have been different if the error had not occurred.
4. The Respondent's counsel expanded upon his written submissions orally at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[76]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[77] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[78]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[79] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[80] Different kinds of error may overlap.[81] The categories are not closed.[82]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[83] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[84] It has been described as an "undemanding" standard.[85]

1. The Partner (Temporary) (Subclass 820) visa allows the de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to live in Australia temporarily. The grant of this visa is the first step towards a permanent Partner (Subclass 801) visa.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
3. The Criteria that the Applicant was required to satisfy for the grant of a Partner Subclass 820 Visa are set out in Part 820 to Schedule 2 of the Regulations.
4. Clause 820.211 provides as follows:
   1. The applicant:
      1. is not the holder of a Subclass 771 (Transit) visa; and
      2. meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
   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:

i. the applicant:

...; or

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

The Tribunal failed to consider a clearly articulated argument to the effect that the Tribunal should act in accordance with Art 3(1) of the Convention on the Rights of the Child.

1. The CRC was adopted by the United Nations General Assembly on 20 November 1989, it came into force internationally on 2 September 1990, it was ratified by Australia on 17 December 1990 and came into force for Australia on 16 January 1991.
2. Art 3(1) of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

1. One feature of Art 3(1) of the CRC is that it concerns not just the "interest of the child" as a consideration, but the status or ranking to be given, namely "a primary consideration".
2. In Minister for Immigration and Ethnic Affairs v Ah Hin Teoh,[86] (Teoh) Mason CJ, Deane and Toohey JJ held that an international treaty such as the CRC creates legitimate expectations of compliance by the executive government and administrative agencies for the purposes of domestic administrative law. However, legitimate expectations are not to be equated with binding principles of law, which would bring the provisions of an unincorporated convention into municipal law 'by the back door'.[87] Nevertheless 'if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.'[88]
3. In Le v Minister for Immigration and Multicultural and Indigenous Affairs,[89] French J stated[90] in the context of the power to cancel a visa:

There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration 'in all cases concerning children'. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions - Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the '... established doctrine' that obligations under international treaties '... are not mandatory relevant considerations attracting judicial review for jurisdictional error'. The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law - Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95; (1908) 6 CLR 309 at 363; Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.

(Emphasis added)

1. In Snedden v Minister for Justice,[91] Middleton and Wigney JJ[92] held that the fact that the Tribunal chose to respond to the appellants' submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning the child provided "compelling circumstances" did not make the consideration or application of the Convention a mandatory consideration.
2. In Kaur v Minister for Immigration and Border Protection,[93] (Kaur) the Full Court held that, in the absence of any express provision, un-enacted international treaty obligations were not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error.
3. In Singh [2020][94] Derrington J held that:

The appellant's submissions obfuscated how the interests of a child were to be a primary consideration in reaching the specified state of satisfaction. The insurmountable hurdle for the appellant is that it is now well accepted that un-enacted treaty obligations do not impose obligations on decision-makers to take into account international obligations arising thereunder. This was the considered conclusion in Kaur which concerned the formation of a state of mind on which a power was conditioned. It did not concern the exercise of a discretion. In SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29], Griffith J referred to the existence of a long line of authority to the effect that the principle in Teoh has no application to the exercise of a non-discretionary power. Similarly, here the process engaged in by the Tribunal was the formation of a state of satisfaction, a task not involving an exercise of discretion.

1. As a result of the decisions in Kaur and Singh [2020], the Tribunal was not required to consider the best interests of a child as "a primary consideration" as a matter of law.
2. The question posed by Ground 1, is whether the Tribunal committed jurisdictional error because it "ignored, overlooked or misunderstood... a substantial and clearly articulated argument", namely that it was "being asked to act in accordance with Art 3(1)".
3. In M1/2021 v Minister for Home Affairs,[95] (M1/2021) Kiefel CJ, Keane, Gordon and Steward JJ considered the proper approach to representations made to the decision-maker in the context of the discretionary power to cancel a visa held by a "non citizen" for "another reason":[96]

It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Emphasis added) (Footnotes omitted)

1. The distinction between the Tribunal's obligation to consider the CRC and Art 3(1) as a matter of law, and because it formed the basis of a "substantial and clearly articulated argument", is somewhat nuanced.[97] For present purposes, it is sufficient to note that it was open to the Tribunal to apply the CRC and Art 3(1), but it was not bound to do so.[98] The Applicant would contend that it was obliged to consider applying them because it was the subject of a "clearly articulated argument".
2. I note in passing that if the Applicant had formulated Ground 1 in terms of the failure by the Tribunal to consider a "clearly articulated argument" that the interests of the child should be treated as "a primary consideration", without reference to the CRC (i.e. characterising the alleged error at a higher level of generality), then such a contention would not succeed because the Tribunal did in fact consider the interests of the child, and any question about the weight, status or ranking of that consideration would have been "subsumed in findings of greater generality".[99] To the extent that Ground 1 has any merit, it derives its force from the express reference to the CRC, and not merely the content of the obligations in the CRC.
3. Where it is alleged that a failure to consider a submission constitutes jurisdictional error, there are two matters to consider:[100]

(a) First, whether a submission of substance was "clearly articulated" or "clearly emerged" from the material before the Tribunal. This requires identification of the submission with some degree of specificity; and

(b) Second, whether the Tribunal failed to consider, or respond to, the submission.

1. I begin with the question of whether the submission identified in Ground 1 was "clearly articulated" by the Applicant. The Applicant does not contend that the submission "clearly emerged" from the material before the Tribunal.
2. However, it is first necessary to briefly identify the context in which the issue arose. The Applicant's application for the Visa required him to satisfy the requirements set out in Part 820 of Schedule 2 to the Regulations. As the Applicant was not the holder of a substantive visa, he was required to satisfy Schedule 3 cr 3001, 3003 or 3004, unless the Minister was satisfied that there were "compelling reasons" for not applying those criteria. Criterion 3001, 3003 and 3004, concern the timing of the application for a visa. Condition 3001 required that the Applicant lodge his application for a visa within 28 days of the "relevant day".[101] The Tribunal found that this was the date of cancellation of his Student visa, a date almost 8 years prior to his application for the Visa.
3. In MZYPZ v MIAC,[102] Bromberg J stated in relation to the "compelling reason" criteria:

That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, "compelling reasons" means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).

As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:

Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective 'compelling' does not introduce an objective standard. The waiver decision will always involve a subjective judgment.

In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.

1. In Waensila v Minister for Immigration and Border Protection,[103] the Full Court held that compelling reasons for waiving Criterion 3001 could arise at any time, including after the visa application was made.
2. The written submission made on behalf of the Applicant to the Tribunal were that "there are compelling reasons that exist in this case for the waiver of Schedule 3 criteria".[104] The four reasons as constituting "compelling reasons" for not applying the Criteria advanced were:[105]

(a) Impact on young Australian Child and Partner;

(b) Australia's Obligations Under the Convention On the Rights of the Child;

(c) Impact on Repayment of Home Loan; and

(d) Impact on COVID19 on Mental Health and International Travel.

1. Under the heading "Impact on young Australian Child and Partner" the submissions provided:[106]
   1. The tribunal should consider this application on the basis of compassionate grounds as there is a young Australian child from the relationship: Gurjind Kaur Khalsa (born on 29/10/2018) is an Australian citizen.
   2. Their infant child requires joint care of applicant and his sponsoring partner. Parents play a very positive and important influence in a child's life. She needs both parents to be actively involved in her upbringing and separation from father can result in long term impact.
   3. Gurjind is likely to feel the negative impact of absence of father on special events such as birthdays, father's day, first day of the school, Christmas, wedding anniversary, school events, sporting events.
   4. There will be no one to take care of the child if Mrs Sangha becomes incapacitated due to sickness, injury or if she meets with an adversity.
   5. The capacity to maintain contact in other ways, such as by telephone and social media can be rebutted by that fact that distant relationships have emotional detachment. The level of warmth, and love cannot be transmitted through phone or social media. A simple example being kissing good night, patting the back or giving a hug during a bad moment.
   6. Applicant submits that Mr. Singh will play an important parental role in child's caretaking and upbringing. There would be an immense hardship inflicted on Mrs Sangha if she had to care for her child as well as be a bread winner all by herself without her husband's support.
   7. It is in therefore in children's best interests that Mr. Singh be granted a visa to stay in Australia.

1. Under the heading "Australia's Obligations Under the Convention On the Rights of The Child" the submissions provided:[107]
   1. Australia has obligations under the Convention on the Rights of the Child and should work towards what is best for each child. Children should not be separated from their parents unless it is for their own good. They should not be held responsible for things that happened over which they had no control. United Nations Convention on the Rights of the Child state among many things:
   2. All organisations concerned with children should work towards what is best for each child. (Article 3)
   3. Children should not be separated from their parents unless it is for their own good. (Article 9)
   4. Families who live in different countries should be allowed to move between those countries so that parents and children can stay in contact, or get back together as a family. (Article 10)
   5. Both parents share responsibility for bringing up their children and should always consider what is best for each child. (Article 18)
   6. Children have the right to good quality health care, clean water, nutritious food and a clean environment so that they will stay healthy. (Article 24)
   7. It is in therefore in children's best interests that Mr. Singh be granted a visa to stay in Australia.

1. Nowhere in the Applicant's written or oral submissions was an express submission made, along the lines that in this particular case, or generally, that "the best interests of the child [should] be a primary consideration" because of Art 3(1) of the CRC or otherwise.
2. There was a reference to Art 3 in paragraph 9 of the Applicant's written submissions.[108] However, it did not paraphrase the obligations of Art 3 completely or accurately: "All organisations concerned with children should work towards what is best for each child. (Article 3)". Having regard to the centrality of the missing words "a primary consideration" in Ground 1, I do not accept that paragraph 9 was "not far off".[109]
3. The Applicant accepts that the Tribunal "did give close attention to the interests of the child",[110] but contends that it did not do so in the manner set out in Art 3(1) because it did not specifically address the contention that those interests were a "primary consideration" or that this was required under Art 3(1) of the CRC.
4. Given the framing of the submission before the Tribunal, which made no reference to "primary consideration", or to the actual terms of Art 3(1), it is unsurprising that the Tribunal did not address those matters in its decision. The Tribunal addressed the submissions, which on a fair reading, had been made to it. Having regard to the Applicant's submissions, their structure, and the intermediate conclusions at paragraphs 7 and 14 ("It is in therefore in children's best interests that Mr. Singh be granted a visa to stay in Australia."),[111] I do not consider that the contention "the Tribunal ought to act in accordance with Art 3(1) of the Convention on the Rights of the Child" was the subject of a "clearly articulated argument".
5. Consistently with the Applicant's framing, the Tribunal formulated its conclusion by reference to the contentions at 9 and 14,[112] namely that it "does not consider the best interests of the child, based on the circumstances of this particular matter, represent a compelling reason for it to waive the Schedule 3 criteria".[113] Thereby, addressing the contention in the form put by the Applicant, and not as reformulated in Ground 1.
6. For completeness, I do not consider the references to the CRC in general, or Art 3(1) specifically[114] as incorporating by reference the whole of the CRC, and in particular Art 3(1), or the requirement that the interests of the child be "a primary consideration". In relation to paragraph 9,[115] the reference to Art 3 was parenthesised in such a way as to indicate that it was the source of the obligation summarised, in the manner of a footnote. The fact that it is part of a treaty that Australia has undertaken to implement as part of its domestic law,[116] notwithstanding the "solemnity"[117] and importance of those obligations, does not elevate the parenthesised reference to the status of "clearly articulated argument". Finally, I do not consider that the relevant references meant that the issue, as articulated in Ground 1, "clearly emerged" from the material before the Tribunal.[118]
7. Having regard to the content of the Applicant's submissions, the Tribunal addressed the question of the interests of the child in a manner consistent with "the nature, form and content of the representations"[119] that were made by the Applicant. I accept the Minister's submission that "in light of Singh, the Tribunal's consideration of the applicant's argument was appropriate and sufficient, and it was not required to undertake a more detailed analysis of the application of Art 3(1) of the CRC." The "reality of consideration" by the Tribunal, was that it did "as a matter of substance [have] regard to the representations put".[120]
8. I turn then to the second issue identified above, namely, if, contrary to my conclusion that the obligation in Art 3(1) of the CRC constituted a "clearly articulated argument", did the Tribunal fail to consider or respond to it. Asking this hypothetical question is not without difficulty in a case where I have found to the contrary. The Tribunal's Decision, and more specifically the question of whether the reasons evidence a failure to address a matter, can only sensibly be understood in light of the submissions that were put to it.
9. In Jabari v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs,[121] the Court summarised the relevant principles:
   1. A conclusion that the decision-maker 'has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].
   2. What is required is the reality of consideration by the decision-maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the relevant matter: Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).
   3. The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).
   4. Although the likely effect that any separation from Mr Jabari would have had on his children was a mandatory consideration because of Direction 90, not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs ; (2003) 236 FCR 593 at . The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration & Citizenship v SZRKT ; at (Robertson J).
10. In M1/2021, Kiefel CJ, Keane, Gordon and Steward JJ stated:

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Emphasis added)

1. Noting the conceptual difficulty I identified above, at a high level of abstraction, the Tribunal would appear to have considered the CRC, for example in its finding that: "The Tribunal does not consider these arguments concerning the Convention on the Rights of the Child represent in any way a compelling reason for it to waive the Schedule 3 criteria. [Singh] at [62]".[122] However, on a fair reading of the Tribunal's Decision, I do not consider that the Tribunal considered or responded to the more specific submission (that I have found was not articulated, and I would speculate, because it was not articulated) that it should consider applying the specific terms of Art 3(1) and treat the interests of the child as a "primary consideration".
2. Nevertheless, there is a further reason why an error of the type alleged in Ground 1, would not be a jurisdictional one. In circumstances where the Tribunal did in fact give consideration to the CRC and the interests of the child, Ground 1 is tantamount to a contention that the Tribunal misunderstood the full extent or purport of the obligations under the CRC; in particular as to the status of the interests of the child as a consideration.
3. In AB, Tracey J rejected such a contention:[123]

Australia's unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.

(Emphasis added)

1. Finally, the Minister contends that, even if the Tribunal erred as alleged by the Applicant in Ground 1, the error was immaterial and therefore not jurisdictional having regard to the finding[124] that, it did not consider on the evidence, that the child's interest "will be adversely affected in any significant way" if he were offshore. However, if the Tribunal erred as alleged, I consider that there was a "realistic possibility" that the decision that was made "could" have been different, but for the error.[125] For example, if the Tribunal had purported to apply Art 3(1) of the CRC, it might have made different forensic decisions in the conduct of the hearing, including by devoting more time to questions concerning the interests of the child as a consideration. As the Applicant contends, the error might also have affected the Tribunal's approach to weighting of the interests of the child.
2. Nevertheless, in circumstances where I have found that the matters set out in Ground 1 were not the subject of a "clearly articulated argument", alternatively could not have given rise to jurisdictional error because of the decision in AB, I am not satisfied that jurisdictional error is made out by reference to Ground 1.

The Tribunal failed to consider important evidence relating to applicant's care for his daughter.

The Tribunal's description of the applicant's evidence as to his care for his daughter as "vague" and "tenuous" was unintelligible.

1. The context for Grounds 2 and 3 is the following parts of the Tribunal's Decision:[126]

27. The applicant also asserts the hardship that the sponsor will face if she is required to both work as the 'bread winner' and look after Miss Khalsa is a compelling reason for the waiver of the Schedule 3 criteria. It is asserted that the applicant is currently playing an 'important parental role in the child's caretaking and upbringing'. The Tribunal has considered the matter of hardship and the impact any requirement for the applicant to depart Australia will have upon her. The Tribunal accepts there will be a degree of hardship on the sponsor should the applicant be compelled to depart Australia to lodge a new Partner visa application from offshore. The Tribunal notes that hardship on the sponsor can in some cases constitute a compelling reason for the exercise of the waiver. The Tribunal has considered the hardship - financial, emotional and practical - that the sponsor may face if the applicant is required to depart Australia. It does not, on the evidence before it, consider this hardship to be a compelling reason for it to waive the Schedule 3 criteria.

28. The Tribunal discussed the issue of hardship with the applicant and the sponsor at the hearing. The applicant stated that he and the sponsor currently share looking after their household. He stated that he spends considerable time with his daughter, especially due to the sponsor being focused on her own work which is a home-based trucking business that also requires her to be out of the home checking on work from time to time. He stated that the business was taking 6 to 8 hours per day of the sponsor's time.

29. . The Tribunal asked the applicant what specific support he provided the sponsor. He replied whatever she needs, he helps. The sponsor stated that the applicant spends most of the day with Miss Khalsa. The applicant claimed he did everything for their daughter as the sponsor was on call due to her business. The Tribunal found the applicant's testimony as to the assistance he provides - and the hardship the sponsor will face should he be required to depart Australia - both vague and tenuous.

30. The Tribunal nevertheless accepts that the applicant provides some support to the sponsor both in relation to their household, the care their daughter requires and with the sponsor's business, as the sponsor states the applicant also works for up to 15 hours per week. The Tribunal, however, considered the evidence of the support the applicant provides to the sponsor - and the hardship she will face should he be required to depart Australia and reapply for a Partner visa from offshore - to be limited and notes that the separation, if this is a genuine relationship, will only be temporary with the vast majority of offshore Partner applications being processed within 17 months and 90% in less than two years. The Tribunal does not consider the physical support the applicant claims to provide the sponsor and the child Miss Khalsa - and the hardship the sponsor may face - to be compelling reasons for it to waive the Schedule 3 criteria.

(Emphasis added)

1. Those reasons were based in part on the Applicant's oral evidence. The critical part of that oral evidence is the following exchange:[127]

[Member]: What care do you provide her? As a father, dad, what are the things that you provide or what you do in the household on a daily or weekly basis? What do you do to help look after and care for your daughter?

[Applicant]: I spend time with her, my daughter and we do pray morning and evening times. I get her food whenever she need. I do everything for her because my wife, she's looking after my business and everything. She's always on calls and this, that. I always look after her, whatever she need, I'd do everything for my daughter.

1. The following further exchange took place between the Applicant and the Tribunal:[128]

[Member]: I would ask this in most Schedule 3s in terms of this review. Tell me why your wife can't look after your child or your daughter whilst you launched an offshore partner visa application?

[Applicant]: Because no one can do two things together. Because I do mostly things for her in house and it's very hard to live here with the kids. I know when she cry, she don't listen. She can't do that. It's very hard, it's very hard. We have so many things. We have to run a business because for living here. It's almost take six to eight hours continuously calling here and there, and everything. It's very hard for her to look after 15 that and it's very hard.

1. The following exchange took place between the Tribunal and the Sponsor:[129]

[Member]: Tell me about the care and work that, say, he does in terms of looking after your child, both of your child, and just the wider kind of stuff in terms of looking after 5 the household and all that kind of stuff domestically and so forth. What does he do in terms of all of that world, if you like?

[Sponsor]: My baby spend most of the day with him. Because I do my paperwork properly. I sit in the office for a few hours. He shower her, he cook her breakfast, and stuff like that. She's more dependent on him than me because I keep working as 10 well. He does take her to go to the park. He take her and lots of other things as well.

(Emphasis added)

1. Contrary to the claim in Ground 2, I consider that the Tribunal did not fail to consider the evidence concerning the Applicant's care for his daughter. That consideration is evidenced by the highlighted passages from the Tribunal's Decision at [27] to [30],[130] reproduced above. Ground 2 really concerns the question of weight, which, subject to requirements of reasonableness and rationality, is a matter for the Tribunal.[131]
2. In relation to Ground 3, I accept the Minister's submission that the finding that the Applicant's evidence was "vague and tenuous" should be read as meaning undetailed or weak. It is not appropriate for the court to apply an "over-zealous judicial review",[132] or to comb through the words of the decision-maker "with a fine appellate tooth-comb".[133] The court should not be "concerned with looseness in the language ... nor with unhappy phrasing".[134]
3. The Tribunal started with the open question ("What care do you provide her?") and then sought detail ("As a father, dad, what are the things that you provide or what you do in the household on a daily or weekly basis? What do you do to help look after and care for your daughter?"). There is nothing to suggest that the Applicant's answer to the question put at Transcript 15.20[135] was in any way cut off by the Tribunal. I consider that the Applicant was provided with an opportunity to provide a complete answer.
4. However, a question arises as to the Tribunal's reasoning or fact findings at [27] to [30],[136] concerning the Applicant's care for their daughter, was unreasonable, illogical or irrational.[137]
5. In SZMDS, Crennan and Bell JJ stated:[138]

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Emphasis added)

1. In Minister for Immigration and Citizenship v Li,[139] Hayne, Kiefel and Bell JJ stated:[140]

The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

(Emphasis added)

1. There is some force to the contention that the Tribunal's finding about the father's evidence was not a reasonable one in all of the circumstances of the case. First, some allowance needs to be given for the fact that the Applicant gave the relevant answers in English, in circumstances where previous answers were given through a Punjabi interpreter. While there was no direct evidence before the Tribunal as to the extent of the Applicant's fluency, the other answers that he gave in English suggest that his English was reasonably basic. Second, the extent and detail of the response must be considered in light of the question itself; the provision of assistance and support by a father towards the upbringing of a child, in a family where the mother works, is neither novel nor surprising. A limited response may be explained on the basis that the answer was somewhat obvious (or at least obvious to the Applicant). Third, the level of detail in the Applicant's answer is consistent with his other responses, for example, in relation to support given to his wife.[141] Finally, the form of the question, with several reformulations, was not necessarily a straightforward one for the Applicant, but I note that he did have available to him the assistance of a Punjabi interpreter if he chose to seek the interpreter's assistance.
2. Finally, the Tribunal appeared to disregard the corroborating evidence from the Sponsor ("He shower her, he cook her breakfast, and stuff like that. She's more dependent on him than me") when making the "vague and tenuous" characterisation. But read fairly, "vague and tenuous" was a comment on the Applicant's evidence and not the totality of the evidence.
3. Despite these observations, I do not consider that the Tribunal's comment was so unreasonable as to fall outside of the boundaries of what is legally reasonable - noting that the context was an intermediate finding on an aspect of the evidence in relation to an important (but not necessarily "primary") consideration.
4. I am not satisfied that jurisdictional error is made out by reference to Grounds 2 or 3.

The Tribunal failed to afford the applicant a fair hearing as required by s 360(1) of the Migration Act, as it did not notify the applicant of an issue in the review relating to the need for more particularity as to the details of the applicant's parenting of his daughter.

1. Section 360 of the Migration Act provided, amongst other things, that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments "relating to the issues arising in relation to the decision under review".
2. In Minister for Immigration & Multicultural and Indigenous Affairs v SCAR,[142] the Full Court held[143] that provision s 425 of the Migration Act (which is the equivalent of s 360 in relation to a Part-7 reviewable decision) requires that applicants be provided with a "real and meaningful opportunity" to make arguments and present evidence before the Tribunal":

.. it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

1. In ABV16 v Minister for Immigration and Border Protection,[144] the court held that s 425 of the Migration Act imposed an ongoing requirement.
2. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (SZBEL),[145] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated:[146]

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

1. Where the Tribunal takes no step to identify issues, other than those considered by the delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, the applicant would be entitled to assume that the reasons of the delegate will identify the issues that arise in relation to that decision.[147]
2. However, the Tribunal is not confined to the issues identified by the delegate as dispositive. Whether the Tribunal seeks to rely on other dispositive uses, those issues are required to be identified, so that the applicant may be afforded the opportunity to give evidence and present arguments in respect of them. The Tribunal is not required to give "a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure".[148] On the other hand, there is no obligation to identify matters that are "obviously... open on the known materials".[149]
3. The first question that arises here is what were the "issues arising in relation to the decision under review". As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held in SZBEL:[150]

Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular...

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

...

If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.

1. In SZBEL,[151] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held that the applicant's "account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review", in circumstances where the Tribunal held that the applicant's claim lacked credibility for reasons, including that the basis upon which the captain came to know of the applicant's Christianity was said to be "so tenuous as to be implausible".
2. The Applicant's complaint is that the Tribunal failed "to draw to the applicant's attention that the Tribunal needed to receive more particular evidence before it could be satisfied of the claim that the applicant did everything for his daughter". It is contended that this amounts to a failure to notify the Applicant of an "issue" arising in the review.
3. The relevant issue that arose on review for the purposes of Ground 4, was that the Applicant did things to look after and care for his daughter which he could not do if he was outside of Australia, a matter that was relevant to the question of whether there were "compelling reasons" for not applying cr 3001, 3003 and 3005. Characterised in this way, the issue was one raised by the Applicant.
4. For example, at paragraph 6 of the Applicant's written submissions, it was submitted that:[152]

Mr. Singh will play an important parental role in child's caretaking and upbringing. There would be an immense hardship inflicted on Mrs Sangha if she had to care for her child as well as be a bread winner all by herself without her husband's support.

1. Unlike the issue of how the ship captain came to have knowledge in SZBEL, or the specific gap in the evidence[153] identified in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs,[154] the issue was not one that the Tribunal identified for itself. The difficulty that the Applicant faced in the present case was not in responding to an unknown and unidentified issue, rather, it was in adducing sufficiently probative evidence in relation to a known issue so as to persuade the Tribunal. That difficulty is not unique to the Applicant or this case. I do not consider that the Tribunal breached s 360 of the Migration Act.
2. I do not accept the Applicant's submission that the proper characterisation of the relevant issue was "that the Tribunal needed to receive more particular evidence before it could be satisfied of the claim that the applicant did everything for his daughter (i.e. all of the parenting)".[155] Such an approach would be tantamount to a requirement that the Tribunal give "a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure".[156]
3. The suggestion that the Tribunal is obliged to provide a running commentary has also been rejected in the context of the information particularisation requirement in s 424A (or s 359A) of the Migration Act, where Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship[157] stated:[158]

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

1. Further, I do not consider that there was any unfairness by an appearance that it had "accepted the thrust of the evidence at hearing", evidenced by the Tribunal's comment: "Obviously, looking after your daughter and so forth,...".[159] As indicated above, the Tribunal sought evidence from the Applicant in relation to the issue as I have identified it, by asking an open question with a clarifier that indicated that detail was called for.[160] That the Tribunal moved on to a different topic at a point in time after the answer was given does not establish that the Applicant's answer was cut short.
2. The complaint appears to be that, in circumstances where the Tribunal was not then, or subsequently at the deliberative stage, satisfied with the level of detail in the Applicant's answer, it was obliged to ask more questions seeking that detail, or to advise the Applicant that the lack of detail was itself an "issue". I do not accept this. Having identified the issue of what the Applicant did to look after and care for his daughter, it was for the Applicant to make submissions and give probative evidence to substantiate that claim.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

The Tribunal failed to consider evidence in the review, relating to the applicant performing work for his wife's business

Member: Your husband, how many hours would he put into the business in 25 an average week?

[Sponsor]: He rarely do that. You can say in the week, maybe 14 or 15 hours. If I got some phone calls and stuff, he did attend that as well. Sometimes, I tell him to do my invoices. He [inaudible 00:56:13] me with that as well.

1. The Tribunal found that "there [was] no actual evidence of the work the applicant actually [undertook] for the sponsor".[161] The Applicant contends that the finding of "no actual evidence" is to be read as meaning literally no evidence, which, having regard to the Sponsor's oral evidence, would be erroneous. As was the case with Ground 3, it is not appropriate to apply an "over-zealous judicial review",[162] or to comb through the words of the decision-maker "with a fine appellate tooth-comb".[163]
2. I accept the Minister's submission that the finding of "no actual evidence" was "referring to the lack of detailed oral evidence and documentary evidence to support what work the applicant undertook in the business on a day to day basis". Consistently with this, the Tribunal found[164] that the Applicant worked for up to 15 hours per week with the Sponsor's business. I would not characterise this approach to the evidence as impermissibly rewriting[165] the Tribunal's Decision. The potential error identified is better characterised as "looseness in the language".[166]
3. I am not satisfied that jurisdictional error is made out by reference to Ground 5.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $8,371.30 being the scale amount.[167] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[168] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the having regard to the scale and the extent of work undertaken as evidenced by the Court file.[169]

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 1 September 2025, Order 1.

[33] United Nations Convention on the Rights of the Child (UNCRC, 1989) Article 3(1) (CRC Art 3(1))

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

[54] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24].

[55] [2020] FCAFC 7 (Singh [2020])

[56] Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 (CWY20) at [7].

[57] [2025] FedCFamC2G 550.

[59] AIU16 v Minister for Immigration and Border Protection [2019] FCA 1493 at [23].

[60] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485.

[62] Affidavit of Carina Ford affirmed 21 December 2020, p 12.

[64] Cf Singh [2020] at [62], [66].

[65] [2020] FCAFC 7.

[66] Singh [2020] at [61]-[62].

[67] CB 345-346 [21]-[22]; Singh [2020] at [66].

[68] Singh [2020] at [49]; Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [25].

[70] [2023] FCAFC 187; (2023) 300 FCR 582.

[71] NRFX v Minister for Immigration, Citizenship and Multicultural Affairs per Derrington J at [56]-[75], Collier J (at [2]) and Downes J (at [174]) agreeing.

[72] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at [30].

[75] SZBYR v Minister for Immigration and Citizenship [1981] HCA 26; (2007) 147 CLR 297 at [18].

[76] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[77] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[78] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[81] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[84] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[85] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[86] [1995] HCA 20; (1995) 183 CLR 273.

[89] [2004] FCA 875 at [59].

[91] [2014] FCAFC 156; (2014) 230 FCR 82.

[93] [2017] FCAFC 184; (2017) 256 FCR 235.

[94] [2020] FCAFC 7 at [62].

[95] [2022] HCA 27; (2022) 275 CLR 582.

[97] Particularly having regard to the decision in AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 (AB), which is discussed below.

[98] Compare BRN20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 550 at [22].

[99] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46].

[100] Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1114 per Hespe J at [29].

[101] Noting that the Applicant has eschewed any reliance on Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1260, in particular, the comments of Judge Papadopoulos at [65].

[102] [2012] FCA 478; (2012) 127 ALD 510 at [10].

[103] [2016] FCAFC 32; (2016) 241 FCR 121.

[109] Applicant's Outline of Submissions at [6].

[110] Applicant's Outline of Submissions at [10].

[114] CB 328, paragraph 9 of the Applicant's Submissions dated 18 October 2020.

[115] CB 328, paragraph 9 of the Applicant's Submissions dated 18 October 2020.

[117] Per Toohey J in Teoh at p 301; referred to by Allsop CJ in CWY20 at [3].

[118] NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [68].

[120] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 per Rares and Robertson JJ at [45].

[121] [2023] FCAFC 98; (2023) 298 FCR 431.

[127] Affidavit of Carina Ford affirmed 4 August 2025, Transcript 15.20.

[132] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ at [31].

[133] Wu Shan Liang per Kirby J at [24].

[134] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (Pozzolanic) at p 287.

[135] Affidavit of Carina Ford affirmed 4 August 2025, Transcript 15.20

[137] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130].

[139] [2012] HCA 61; (2013) 249 CLR 332.

[144] [2017] FCA 184.

[145] (2006) 228 CLR 152.

[147] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [36].

[148] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Ex parte Miah) per Gleeson CJ and Hayne J (at 69).

[150] (2006) 228 CLR 152 at [34], [35] and [39].

[151] (2006) 228 CLR 152 at [34], [35] and [39].

[153] At [51]: "the lack of evidence as to how the appellant and the sponsor developed their relationship and had a relationship with the necessary characteristics when, early in their relationship, the appellant had a one-off sexual encounter with her former husband and fell pregnant to him."

[154] [2023] FCA 485.

[155] CB 348 [29]; Applicant's submissions at [28].

[156] Ex parte Miah per Gleeson CJ and Hayne J (at 69).

[157] [1981] HCA 26; (2007) 147 CLR 297 at [18].

[159] Affidavit of Carina Ford affirmed 4 August 2025, Transcript 15.33.

[160] Affidavit of Carina Ford affirmed 4 August 2025, Transcript 15.20.

[162] Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31].

[163] Wu Shan Liang per Kirby J at [24].

[165] Compare LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [29].

[167] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[168] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[169] See r 25.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.