Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 409

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

1. Mr Singh is a citizen of India who sought a partner visa on the basis of a claimed relationship with an Australian citizen.
2. Following two prior remittals by the predecessor to this Court, Mr Singh now seeks judicial review of the third decision of the tribunal to affirm an administrative decision to refuse a partner visa.
3. For the reasons that follow, the application must be dismissed.

1. On 26 July 2009, the Applicant arrived in Australia on a student (class TU) (subclass 572) visa.
2. On 8 August 2014, the Applicant lodged a combined application for a partner (temporary) (class UK) (subclass 820) visa and partner (residence (BS-801) visa (the visa). By that application, the Applicant nominated a sponsor with whom he claimed to be in a spousal relationship whom he referred to as his wife (in these reasons, referred to as sponsor).
3. On 17 April 2015, a delegate of the First Respondent refused to grant the visa (the delegate's decision). Since then, the Applicant has exercised his rights of review which has resulted in the following:

(a) On 17 September 2015, a decision of the Administrative Appeals Tribunal (as it then was) to affirm the delegate's decision (the First Tribunal Decision);

(b) On 20 April 2016, on review of the First Tribunal Decision, orders made by the then Federal Circuit Court (the predecessor to this Court) remitting the application to the Tribunal for determination according to law (the First Court Orders), where the Tribunal had erred in confining its assessment of compelling reasons for not applying Schedule 3 criteria to circumstances which only existed at the time of application;

(c) On 26 September 2016, another decision of the Administrative Appeals Tribunal (as it then was) to affirm the delegate's decision (the Second Tribunal Decision);

(d) On 21 April 2017, on review of the Second Tribunal Decision, orders made by the then the Federal Circuit Court remitting the application to the Tribunal for determination according to law (the Second Court Orders), where the Tribunal had erred by failing to comply with s.359A of the Migration Act 1958 (Cth) (Act) because it did not invite the Applicant to comment on information that formed the reason or part of the reason for affirming the decision under review - being the oral evidence of the sponsor that the parties had never lived together at the address at which they were married.

1. On 13 July 2018, the sponsor of the Applicant passed away. The Applicant's then representative notified the Tribunal on 3 October 2018.
2. Following the Second Court Orders and second remittal to the Tribunal, the Applicant was invited to attend a hearing before the Tribunal on 15 October 2018, after which the Applicant's then representative provided written submissions and a further 4 statements to the Tribunal. The Applicant was invited to attend a second hearing before the Tribunal on 18 March 2019, at which his witnesses were contacted or attempted to be contacted and following which he provided an additional document.
3. On 12 April 2019, the Administrative Appeals Tribunal (as it then was) again decided to affirm the decision of the delegate to refuse to grant the Applicant the visa (the Third Tribunal Decision).
4. On 14 May 2019, the Applicant commenced these proceedings for judicial review of the Third Tribunal Decision assisted at that time by a legal representative. Accompanying the originating application was an affidavit affirmed by the Applicant dated 13 May 2019 (supporting affidavit). The supporting affidavit provided a brief background as to the history of the matter and outlined arguments in support of the 3 grounds of jurisdictional error which were identified in the Applicant's originating application.
5. On 29 May 2019, a response was filed on behalf of the First Respondent by which it contended that the Third Tribunal Decision was not affected by jurisdictional error.
6. On 7 January 2020 and 15 January 2020, a notice of intention to withdraw and a notice of withdrawal was filed by the Applicant's former legal representative.
7. On 26 August 2021, the First Respondent filed a Court Book.
8. Various procedural orders were then made. Most recently, orders made by the Court on 14 February 2025 invited the Applicant to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which he sought to rely. The Applicant did not file and serve any further materials in accordance with the Court's orders or at all.
9. On 7 March 2025, the First Respondent filed an outline of submissions.
10. On 13 March 2025, the matter proceeded to final hearing. The Applicant appeared in person with the assistance of a Punjabi interpreter. The First Respondent was represented by a solicitor advocate. At the outset of the hearing, an adjournment was granted so that the Applicant could have the benefit of the interpreter's assistance with translation of the First Respondent's outline of submissions. Upon indicating to the Court that he had sought pro-bono legal assistance in the days prior to hearing, who had responded that there was insufficient time to assist, the process for requesting an adjournment of the hearing to allow more time to seek legal assistance was outlined. The First Respondent indicated they would oppose but that prejudice to them could be rectified by costs. A further short adjournment was granted so that the Applicant could consider whether he wanted to apply for an adjournment of the hearing in order to have more time to seek legal assistance. Following the adjournment, the Applicant confirmed that he wanted to proceed with the hearing on that day. As the hearing proceeded, both parties sought to rely on their written materials filed in the matter.

1. By the originating application, the Applicant identified 3 grounds of judicial review in the following terms:
   1. The Second Respondent fell into jurisdictional error by taking irrelevant matters into consideration and failing to take relevant matters into account.
   2. The conduct of Second Respondent indicates an apprehension of bias and there was a denial of procedural fairness.
   3. The Second Respondent misconstrued the waiver criteria in the form of 'compelling circumstances'.

1. The relevant criterion to be met for the visa application was at cl.820.211(2)(d) of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly provided:

820.21 - Criteria to be satisfied at time of application

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. Criteria 3001 provides that:
   1. (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
2. The Explanatory Statement that accompanied the Migration Regulations (Amendment)1996 No. 75 provided:

The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

- where there are Australian-citizen children from the relationship; or

- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

1. The grounds of judicial review in the originating application were in each case not particularised but supplemented by additional information and contentions in the Applicant's supporting affidavit. It is convenient to address them individually, but not in that order.

1. By the third ground of the application, the Applicant contended that the Tribunal engaged in an error of jurisdiction by misconstruing the waiver criteria in the form of "compelling circumstances". The Applicant's supporting affidavit elaborated on this ground in terms that the alleged error was in the time at which the existence of compelling circumstances was to be assessed and pointed to paragraphs [75] and [76] of the Third Tribunal Decision in support.
2. As it is not contentious that the Applicant did not satisfy the criteria at 3001, 3003 and 3004, it is understood that this ground is directed at the Tribunal's assessment of whether it was satisfied that there were "compelling reasons" for not applying those criteria pursuant to cl.820.211(2)(d)(ii).
3. The impugned paragraphs of the Third Tribunal Decision were as follows:

75. The Tribunal has considered the evidence presented at four Tribunal hearings. It finds that the various 'compelling reasons' which the applicant has raised in the present and previous hearings concern his claimed need to remain in Australia. Pursuant to the decision in Waensila v MIBP [2016] FCAFC 32 the Tribunal is required to examine the submitted 'compelling reasons' for waiver from time of application up to the time of decision.

76. The Tribunal is not satisfied (from the cumulative evidence) that the claims of 'compelling reasons' (for not applying the Schedule 3 criteria) can be based on considerations of the sponsor's mental and physical health and well-being. Though Dr Klenyhan's report indicated she had mental problems and the Autopsy Report confirms that she was using antidepressive medication at the time of her death - the Tribunal is not satisfied these claims can be a 'compelling reason' for waiver. Firstly, due to her recent unfortunate demise these claims no longer apply to the sponsor at time of decision and secondly because the Tribunal does not accept that the parties were ever in a genuine and continuing spouse relationship. Therefore, the basis of the applicant claiming that he needs to remain in Australia to be a bulwark and carer for her in her mental health travails is not accepted. Therefore, the Tribunal does not consider the reasons advanced by the applicant to be 'powerful' and 'compelling reasons' for waiver of the Schedule 3 criteria.

(emphasis added)

1. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Dowsett, Robertson and Griffiths JJ) at [53] the Full Court clarified that, in undertaking its assessment of whether compelling reasons exist for purposes of the Schedule 3 criteria, the Tribunal is not limited to consider only compelling reasons that existed as at the time of the application (the Waensila principle). The Waensila principle is not in dispute in these proceedings.
2. At [75], the Tribunal correctly cited the Waensila principle.
3. The Third Tribunal Decision, when read as a whole (including but not limited to the impugned paragraphs [75] and [76]), discloses that the Tribunal considered the evidence presented at 4 Tribunal hearings and up to the time of its decision including that provided following the most recent Tribunal hearing. In summary:

(a) The Third Tribunal Decision commenced with a summary of the long history of the Applicant's visa application and overview of the claims and evidence before it, including as provided at Tribunal hearings on 24 August 2015, 16 September 2016, 15 October 2018, 18 March 2019. The Tribunal also considered a forensic report submitted by the Applicant which detailed the nature and results of the medical investigation into the sponsor's death, which was provided to it following the hearing on 18 March 2019: at [10]-[11], [14]-[54].

(b) In recording its findings as to whether there were compelling reasons for not applying the Schedule 3 criteria, the Tribunal again referenced the evidence given at prior hearings and noted the significant body of evidence before it: at [61]-[63].

(c) The Tribunal specifically acknowledged that, at those prior hearings before the Tribunal, the Applicant had submitted that the compelling reasons for waiving the Schedule 3 criteria were related to the state of his sponsor's mental and physical health, his care for her and the hardship she would have faced were he required to return to India: at [62]. Whereas, at the time of the Third Tribunal Decision, the Applicant's sponsor had tragically demised such that the basis of the Applicant's claim to care for her was no longer an existential circumstance and, therefore, was not accepted as a powerful or compelling reason: at [63].

(d) The Tribunal also considered and rejected evidence the Applicant and his sponsor had given at hearings including about why the sponsor could not go to India, and further did not accept the cumulative evidence that the parties had a long standing relationship based on the Applicant's oral evidence of his significant lack of knowledge of the sponsor's previous life (including her previous names appearing on records of a joint bank account and GP letter) and other contradictory evidence of living arrangements: [68]-[70].

(e) There were also findings made with reference to the sponsor's last days and the circumstances of the sponsor's passing which the Tribunal considered: demonstrated a remarkable lack of knowledge on the part of the Applicant about her individual movements; displayed no evidence of any mutual commitment; and reinforced previous adverse findings as to the particular circumstance of their relationship: at [72]-[74].

(f) Some of the findings made by the Tribunal in this respect related to circumstances in existence at the time of the initial visa application. For example, the Tribunal did not accept evidence of the Applicant's financial status and claimed ignorance of visa and departmental protocols which he had said were reasons for his delay in making the original application for the visa: at [63]-[65]. Some of the evidence of the circumstances which caused the sponsor to fear it was dangerous for the Applicant to return to India, which was not accepted, also pre-dated the making of the visa application: at [66].

1. That the Tribunal considered some of the evidence as to circumstances that existed at the time of the initial visa application is not of itself an error of jurisdiction. Ultimately, the Tribunal's reasons disclose that it considered a vast array of evidence which related to events or circumstances that occurred after the visa application was made including that provided to the Tribunal after the fourth and final hearing before reaching its conclusion at paragraphs [75] and [76] in respect of whether it could be satisfied of "compelling reasons" to justify a waiver of the Schedule 3 criteria.
2. It is not correct to say that the Tribunal limited its consideration to only compelling reasons that existed at the time of the application. This third ground does not succeed.

The Tribunal took irrelevant matters into consideration and failed to take relevant matters into account

1. By the first ground, the Applicant asked the Court to find that the Tribunal erred by taking irrelevant matters into consideration and failing to take relevant matters into account. The Applicant's supporting affidavit included a series of additional points. In summary:

(a) The Tribunal relied on purported inconsistencies during past hearings which were conceded by the Respondents in the past and which matters were never put to the Applicant. Specifically, those reasons at [14]-[29] (first hearing) and those reasons at [30]-[40] (second hearing).

(b) The Tribunal relied on a document from Victoria Police entitled (Form 83) Circumstances Surrounding Death (Form 83) which stated that "the following is a summary of the information available to me at the time of compiling this report" and further read that "it does not represent the Coroner's findings as the facts or circumstances in which death occurred".

(c) The Tribunal referred to the 4 prior hearings and "cumulative evidence" before it throughout its reasons which demonstrates it erred by relying on the issues which formed part of the reasons for the First and Second Tribunal Decisions which had been withdrawn after the Tribunal had conceded the issues raised and were not raised again by the Tribunal during the fourth hearing.

(d) The Tribunal made adverse inferences against the Applicant by comparing his statements with the contents of the Form 83, which is evidence of the Tribunal failing to realise the context under which the Form 83 was prepared.

(e) The Tribunal failed to appreciate that the circumstances described in the Form 83 clearly indicate that the statements given to police by the sponsor's son were not correct. Specifically, the information that the sponsor did not disclose any health issues or medical history was contrary to her own statements, the psychologist report, the medicines found in her possession at the time of her death; and information that the sponsor lived by herself was contrary to the evidence given by the house mates and no justification was given for the Tribunal's non-acceptance of the detailed evidence and the documentary evidence in the form of utility bills, lease deed etc - which was entirely rejected based on the Form 83.

1. As observed in relation to the third ground, throughout the Third Tribunal Decision there were references to the claims and significant body of evidence brought before the Tribunal over the long history of the proceedings including a total of 4 Tribunal hearings. The Tribunal also considered the forensic report submitted by the Applicant following the hearing on 18 March 2019, which detailed the nature and results of the medical investigation into the sponsor's death.
2. A number of the contentions illuminating this first ground relate to the fact of the Tribunal's reliance on evidence given to it at prior hearings which preceded the identification of jurisdictional errors in the First and Second Tribunal Decisions. The task of the Tribunal on remittal is to proceed de novo meaning the application is considered afresh. Although the First Respondent had conceded the errors in both the First and Second Tribunal Decisions, the nature of those errors does not necessarily invalidate the substance of the evidence that was before the Tribunal in making the Third Tribunal Decision. As was explained in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 (Emmett, Siopis and Rares JJ) at [39] (a decision relating to the then Refugee Review Tribunal but which principle is of relevant application here), until a valid decision is made on review, an earlier decision of a tribunal is no decision at all and it does not follow that all steps and procedures taken in arriving at that decision are themselves invalid. Rather, the tribunal on remittal will still have before it the materials that were obtained when the decision that had been set aside was made. In the present case, those prior errors were not repeated on the final remittal and the fact of prior remittals does not establish jurisdictional error. In the circumstances, the Tribunal was entitled (and, indeed, obliged) to have regard to all materials before it, including the evidence given at hearings prior to the first and second remittals.
3. There was no Police Form 83 before the Tribunal. To the extent that the Applicant took issue with the Tribunal's findings made with regard to the forensic report which referenced a Police Form 83 as part of the materials considered by the reporting doctor, that is a document which was provided to the Tribunal by the Applicant which he elected to do following the hearing on 18 March 2019. Accordingly, the obligation on the Tribunal to give clear particulars of any information that the Tribunal considers is or would be the reason or part of the reason for affirming the delegate's decision and to invite the Applicant to comment or respond, did not apply: s.359A of the Act (as in force at the relevant time).
4. Further, the forensic report contained an autopsy report (qualified as a summary of information available at the time of the report and that it did not represent the coroner's findings as to the facts or circumstances in which death occurred) and a toxicology report. This evidence included information of direct relevance to the Applicant's claimed compelling reasons and the Applicant's claim that the relationship with the sponsor would have continued had she not passed. The Tribunal did not solely rely on the contents of the forensic report in finding that it could not be satisfied of compelling reasons as to justify a waiver of the Schedule 3 criteria or in finding that the relationship would have continued by for the sponsor's passing. Rather, it also considered evidence of the Applicant, his late sponsor and friend. The Tribunal was entitled to select the weight to be afforded to the evidence and gave logical reasons for its findings.
5. For completeness, the Applicant has highlighted some relatively fine points of distinction in his evidence which are not apt to justify an error of jurisdiction, but rather are an invitation to impermissibly engage in a merits review. The Applicant said his evidence was that he is estranged from the sponsor's son which was not apparently mistaken by the Tribunal given the findings record that the pair did not get on and theirs was a relationship of animosity: at [41] and [52]. The Applicant said his evidence was that, prior to her passing, he left the sponsor at the Railway Station Reservoir from where she went to her son's place rather than at her son's place which evidence was also not misunderstood by the Tribunal wherein it was noted that the Applicant dropped the sponsor at the railway station and her son was going to pick her up from there and the Applicant did not think she went by train as he dropped her off and her son picked her up and he did not know what happened afterwards: at [47]. The Tribunal found that the Applicant's evidence in response to questioning about the cause of death was "vague" in describing the cause as some toxicity issue and, in addition to this, considered that further information provided by the Applicant indicated he had limited knowledge of the sponsor's cause of death: at [72]. The Tribunal acknowledged the medical evidence that the sponsor had suffered mental and physical ill health but did not accept that the Applicant had ever been involved in caring for her and, in so finding, did not refer to or apparently place any weight on the notation in the autopsy report that the sponsor had not reported medical conditions to her son or friends: at [63].
6. Whilst another decision maker may have decided differently, on careful scrutiny of the Third Tribunal Decision, it was reasonably open to the Tribunal on the evidence before it to conclude as it did.
7. No jurisdictional error is established in respect of the first ground.

Apprehended bias and denial of procedural fairness

1. The second ground of the application alleges an apprehension of bias and a denial of procedural fairness on the part of the decision maker responsible for the Third Tribunal Decision. There is no transcript in evidence demonstrating precisely what was or was not said at the hearing before the Tribunal. However, the Tribunal's decision record sets out in some detail over a number of pages exchanges between the Member and the Applicant. By his supporting affidavit, the Applicant was understood to rely on the written reasons as the basis upon which the Court should find that the Tribunal closed its mind after reading the notes/reasoning of the previous two proceedings, which loss of objectivity was said to be demonstrated by:

(a) The Tribunal's reliance on the Form 83 to conclude, at [63], that the sponsor was living alone according to police - notwithstanding the qualification that the contents did not "represent finding[s] as to facts".

(b) The description in the Form 83 was based on information provided by the sponsor's son who was ignorant of the sponsor's health issues, medical history and illness and which contradicted by prior evidence of a possession of large quantities of painkillers, sleeping pills, past psychological reports and the Applicant's past cautions about the sponsor's suicidal tendencies if left alone.

(c) The Tribunal's adverse finding on the basis that friends of the sponsor did not inform the Applicant about her death or that the friend never visited the Applicant and the sponsor.

(d) The Tribunal's finding that the Applicant alone was paying rent for a jointly held lease property.

1. It is well-established that the threshold for an allegation of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided. In DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858 (Laing J) at [25], the Court outlined the relevant principles which are instructive to extract here:

Apprehended bias may be demonstrated where a "fair-minded lay observer might reasonably apprehend" that an impartial mind may not have been brought to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ. However, it is well established that allegations of bias must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. It would be rare for such an allegation to be established based upon the reasons for decision alone: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 15 ALD 303 at [18].

1. As was considered in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (North, Lander and Katzmann JJ) at [18], it will be a rare case where a Court will find that a decision-maker has exhibited bias based purely on the reasons. Ordinarily it will be necessary to show some conduct on the part of the decision-maker, apart from the expression of their reasons, which would indicate pre-judgement or bias in any way.
2. It is possible that a decision-maker's knowledge of extraneous information in the category of a prejudicial but inadmissible fact or circumstance may give rise to a finding of partiality: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 (Kenny, Bromberg and Anderson JJ) at [90]. In the present case, the Applicant has not succeeded in demonstrating that decision-maker took into account irrelevant considerations or otherwise an inadmissible fact or circumstance as was subject of the first ground.
3. Another basis for demonstration of apprehended bias may include a denial of procedural fairness. In the present case, the Applicant has not articulated with sufficient precision or clarity the allegation of apprehended bias. On an analysis of the procedure adopted by the Tribunal, the Applicant was afforded substantial opportunity to articulate his case, to respond to matters put in prior Tribunal hearings and to bring both evidence and further submissions before the Tribunal following the unfortunate passing of his sponsor. There was no apparent denial of procedural fairness in this case.
4. Without more, I am unable to discern an error of jurisdiction in this respect.

1. For the above reasons, the application does not establish any error of jurisdiction and must be dismissed with costs fixed in the amount of $5,400 being less than the scale amount for final hearing as sought.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.