Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 933

1. The events occurring at and before a third Tribunal hearing (on the review to which this appeal relates) are recorded in the Tribunal's written reasons for its decision.
2. The Tribunal observed that the expression "compelling reasons" is not defined in the Regulations. It correctly identified that compelling reasons for waiving Criterion 3001 could arise at any time, including after the visa application was made: Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121. The Tribunal said that "the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria" (citing MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 (at [10]); Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 (at [24])).
3. Before the Tribunal, the appellant submitted that a compelling reason for waiving Criterion 3001 was that he and M loved each other and that he did not want to be separated from her or from T, a person he asserted was his biological child.
4. The appellant appeared before the Tribunal on two days in December 2018 to give evidence and present arguments. On the first day of the hearing the Tribunal attempted to contact M by telephone but was unsuccessful, and M did not otherwise attend the hearing. Nor had M appeared at the two earlier Tribunal hearings relating to the visa application.
5. In the course of the hearing the Tribunal told the appellant that M's absence from the hearings had caused it to have concerns about whether he continued to be in a relationship with her as he had claimed. The Tribunal referred the appellant to a letter that had been sent to him, inviting him to attend the hearing and requesting that M attend to give evidence. The letter had also requested the appellant to provide evidence that he had been living with M since the visa application and evidence that he was the father of T or involved in T's day to day care. The Tribunal recorded that at the various hearings before it the appellant had been advised that if he failed to provide information of a kind that should be available to him, an adverse inference may be drawn from his failure to do so.
6. The Tribunal recorded the responses of the appellant as follows:
   1. I have taken into account the applicant's explanation that the sponsor was not well again, that he had explained to her the other night that she should come and he did not know why she had not. I note it is submitted by the representative that the sponsor is a drug addict, although I note the representative has told the tribunal he has not been able to communicate with the sponsor either. I take into account the applicant's representations to the Tribunal that the relationship continues and is good. However, on balance as a consequence of the sponsor's failure to attend the tribunal to support the applicant on two occasions in circumstances where the importance of her participation has been emphasised, I am not satisfied that the applicant and sponsor are in a genuine or presently existing relationship. I do not accept it is plausible that if the relationship was in existence and genuine that the sponsor would decline to attend in support of the applicant. There is no cogent medical evidence before the Tribunal suggesting the sponsor is medically unfit to attend the Tribunal to give evidence, despite me explaining to the applicant on the last occasion that such medical evidence should be provided if the sponsor was not medically able to attend.

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1. Turning to the matters the applicant asks me to consider as compelling reasons for not applying the Schedule 3 criteria, I do not accept the factual foundation underpinning the applicant's concerns that he and his sponsor are in a long term relationship or that there will be an adverse effect brought about by long term separation from the sponsor and the child if the applicant were to depart Australia, for example to apply for an offshore partner visa.

1. The Tribunal considered two statutory declarations upon which the appellant relied. The first was from a friend who said that he saw the appellant and M together every second weekend and that they called each other four times a week. The second was from a friend who stated that he was close friends with the appellant and M and that they saw each other at every possible opportunity as well as at Indian community events.
2. The Tribunal said that there was no evidence that the deponents of the statutory declarations were Australian citizens or permanent residents, and noted that neither had appeared before the Tribunal. It concluded that the documents could not be relied upon as evidence that the appellant was the spouse of M. It did not accept that the appellant would be unable to provide other evidence supporting his claim that he lived at the same address as M and so drew an adverse inference that he did not live with her. It observed that the appellant had been represented by a legal practitioner experienced in the jurisdiction throughout his various applications for review of the delegate's decision. It noted that the appellant had been asked from at least 2014 to provide evidence that he was the father of T or involved in his day to day care.
3. The Tribunal noted that the appellant was not named as T's father on T's birth certificate and that the appellant had provided a signed statement from M to the effect that his name was not on the certificate because her mother was disapproving of their relationship.
4. The Tribunal continued (at [36]):

[The appellant] has also failed to provide any evidence other than his oral evidence that he is involved in [T's] day to day care. He says that this is because everyone involved with [T] requires [M's] consent to provide him with any supportive evidence. I do not accept that if he was involved in [T's] day to day care as he asserts that he would not be able to provide any evidence other than his own oral evidence that this is the case.

1. Accordingly, the Tribunal said it was not satisfied that the appellant was T's biological father or that he was involved in T's day to day care. Nor was the Tribunal satisfied that the appellant was a dependent of M as he had claimed and that, even if he were, that would not be a compelling reason not to apply Criterion 3001.

1. To succeed on his application for judicial review, it was necessary for the appellant to show that the Tribunal's decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The appellant was self-represented on that application, as on this appeal. The primary judge described his 11 grounds for judicial review as difficult to follow. His Honour's reasons for rejecting the grounds will be summarised in the course of disposing with the grounds of appeal.
2. The appeal grounds are contained in an Amended Notice of Appeal filed on 14 December 2022 (ANOA) over seven paragraphs. I have interpreted the grounds having regard to the appellant's written and oral submissions. So understood, they raise six issues, dealt with in turn under the headings below.

1. The first issue is whether the primary judge erred by failing to find that Criterion 3001 had previously been waived (or was "deemed" to have been waived) by the delegate and that the Tribunal did not have the power to revisit the question, in circumstances where that part of the delegate's decision had not been challenged by the appellant and it therefore could form no part of the Tribunal's function on the review: ANOA, [1] - [3].
2. The primary judge concluded that where a decision-maker may disallow a claim on a number of available bases, it is available to the decision-maker to decide the claim on one of them if doing so is dispositive of the claim (ANOA, [9] - [10]). Accordingly, the appellant's argument that the Tribunal could not decide the visa application on a basis different to that of the delegate was misplaced.
3. On appeal, the appellant argued that the delegate must be taken to have found that there were compelling reasons not to apply Criterion 3001 because she had proceeded to decide the visa application by reference to another substantive criterion. The effect of the submission was that there had been a waiver of Criterion 3001 and it was not open to the Tribunal to revisit it.
4. The appellant's submission misapprehends the nature of the Tribunals' powers and functions on the application for review. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) as then in force, for the purposes of the review, the Tribunal may exercise all of the powers and discretions of the delegate. Its function was to arrive at the correct or preferable decision under s 65 of the Act: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. Section 65(1)(b) required that if the criteria for the grant of the visa were not met, the Tribunal must refuse to grant the visa.
5. The appellant's submission that the delegate had necessarily and impliedly decided that there were compelling reasons not to apply Criterion 3001 must be rejected in any event. As the primary judge said, it is open to a delegate of the Minister to refuse to grant a visa on the basis that one essential criterion is not fulfilled, without making any finding as to other essential criteria. Even if the delegate had concluded that there were compelling reasons at the time of her decision not to apply Criterion 3001, that did not preclude the Tribunal from deciding that question differently, subject of course to compliance with the rules of procedural fairness. Contrary to the appellant's submission, the Tribunal's power to affirm the delegate's decision on the ground that Criterion 3001 was not satisfied was not conditioned by a requirement that the Minister first "challenge" any actual or deemed decision of the delegate in connection with that issue.

1. The second issue is whether the primary judge erred by failing to find that the Tribunal committed jurisdictional error by failing to "adjudicate" the question of whether the appellant fulfilled the Spouse Criterion: ANOA, [2].
2. The primary judge accepted that the Tribunal had not undertaken an assessment of whether the appellant satisfied the Spouse Criterion, but rather had confined its analysis to whether Criterion 3001 should apply. His Honour said that the Tribunal was entitled to proceed in that way. Given what is said in relation to the first issue, there is no appealable error in that conclusion. The Tribunal's conclusion that Criterion 3001 was not met was dispositive of the visa application. There was no obligation on the part of the Tribunal to identify whether other criteria for the grant of the visa were or were not fulfilled.

1. The third issue is whether the primary judge erred by failing to find that the Tribunal breached s 359A of the Act by not bringing to the appellant's attention its likely reliance on Criterion 3001 and the evidence and facts it may take into account in determining whether it should apply: ANOA, [7].
2. Section 359A(1)(a) of the Act required the Tribunal to put to a review applicant "clear particulars of any information the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" and to provide the review applicant with an opportunity to comment.
3. The appellant submitted that s 359A required the Tribunal in his case to inform him of the "provisions and regulations, evidence and facts" specifically related to the question of whether there were compelling reasons to waive Criterion 3001.
4. The primary judge observed that the appellant had been unable to point to information not put to him in breach of that provision. His Honour went on to say that it was clear to the appellant that the issue for consideration was whether there were compelling reasons not to apply Criterion 3001, given that the same question had been considered in earlier Tribunal decisions in 2015 and 2016. His Honour referred to the Tribunal's reasons in which it had recorded the compelling reason the appellant himself had put forward for the purpose of its consideration as to whether the criterion should be waived. The primary judge otherwise concluded that nothing in s 359A required the Tribunal to put any legislative framework or provisions to the appellant or alert him to the case he needed to make out.
5. The short answer to the appellant's submissions on this aspect of the appeal is that the primary judge was correct to conclude that the appellant had not pointed to any information withheld from him in breach of that provision. The appellant was plainly aware that the issues arising on the application for review included the question of whether there were compelling reasons not to apply Criterion 3001. As recorded in the Tribunal's reasons, the appellant addressed that very issue by putting forward the reasons he claimed were compelling. The appellant has not demonstrated any error in the conclusion of the primary judge that he had participated in two earlier Tribunal hearings in which the question of his fulfilment of Criterion 3001 had arisen.

1. The fourth issue is whether the primary judge erred by failing to find that the Tribunal committed jurisdictional error by concluding that the appellant should have provided more evidence to support his claim to be M's spouse, including evidence from M herself, and "evidence from the government agencies like Centrelink and Medicare regarding his wife". The appellant submitted that records of that kind were subject to privacy. He further submitted that the Tribunal had been informed that M's absence was explained by drug use, depression and post-traumatic stress disorder (PTSD) as evidenced in medical reports: ANOA, [4].
2. That contention may be fairly understood to allege error in the rejection of the appellant's sixth and ninth grounds for judicial review at first instance. The primary judge summarised and disposed of those arguments as follows:
   1. Ground 6 asserts that the Tribunal committed jurisdictional error by failing to obtain evidence of its own motion. In particular, the applicant says that he was unable to provide evidence from Centrelink or South Australian Housing because of privacy requirements and the Tribunal failed to take account of the fact that he was unable to provide such evidence. Whether or not there was such evidence to obtain may be doubted. I am not satisfied that the Tribunal had any obligation to obtain such evidence if that is what is being suggested in the ground. Broadly speaking, it is up to the applicant to bring forward evidence that satisfies the decision maker that he fulfils the requirements of the appropriate visa. As I read the decision of the Tribunal, the applicant's failure to provide evidence from Centrelink or South Australian Housing was not determinative of the outcome and, if it was an error, I do not consider it was material.

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1. In ground 9 the applicant asserts that the Tribunal committed jurisdictional error by failing to request evidence about the sponsor's various medical conditions which prevented her from attending the hearings. As noted, the sponsor failed to attend any hearing before a Tribunal or the delegate and there is little explanation as to why. The applicant said in his grounds of review, and also in oral submissions, that the sponsor is a user of drugs, which I took to mean illicit drugs. In the ground of review he also says that she is addicted to alcohol. The obligation of the applicant is to bring forward material that shows he satisfies the criteria for the grant of a visa. In circumstances where the sponsor refuses or is incapable of cooperation, if that is the case, then it is for the applicant to take what measures he can to remedy that. The explanation is simply implausible, and the Tribunal is justified in reasoning the way it did.

1. On appeal, the appellant submitted that the primary judge had required him to produce Medicare and Centrelink records to prove M's depression and PTSD "disregarding that these are protected documents under privacy laws". The reasons of the primary judge do not disclose there being any such requirement of the appellant on his application for judicial review.
2. The appellant otherwise submitted that there was "ample medical evidence and hospital reports" proving the conditions that explained M's absence from the Tribunal hearing. The material that was before the Tribunal was limited to two documents predating the Tribunal hearing by eight years and two years respectively. The primary judge did not err in his conclusion that the Tribunal did not commit jurisdictional error by rejecting the appellant's explanation for M's absence, nor by drawing an adverse inference from the fact of her absence. Whether M's absence was explained by medical issues was a factual matter for the Tribunal to decide, within the bounds of legal reasonableness. At first instance it was not shown that it was not open to the Tribunal to draw an adverse conclusion on the question of M's absence having regard to the limited and dated material before it.

1. The fifth issue is related to the fourth. It is whether the primary judge erred by failing to find that the Tribunal committed jurisdictional error by refusing to grant an adjournment when it was apparent that M could not attend the hearing due to her drug use: ANOA, [5]. The grounds of appeal and written submissions filed by the appellant refer to there having been a request for a two day adjournment that was said to have been unreasonably refused.
2. An argument to the effect that the Tribunal erroneously refused to grant an adjournment formed no part of the grounds for judicial review at first instance. Leave is required to introduce a new argument on this appeal. Leave may be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (at [46]). It is not expedient in the interests of justice to grant leave to advance an argument that is obviously lacking in merit. Nor is it expedient in the interests of justice to grant leave to advance a new argument in the absence of any explanation as to why the argument was not previously advanced.
3. The assertion that the Tribunal erroneously refused to grant an adjournment does not enjoy reasonable prospects of success, principally because the appellant has not demonstrated that he made any application to the Tribunal for an adjournment, whether for the purpose of facilitating M's attendance or otherwise. The Tribunal proactively alerted the appellant to its wish to question M. It adjourned the hearing into a second day (on its own initiative) in order to facilitate her attendance.
4. The appellant alleged that he orally sought an adjournment on the second day of the Tribunal's hearing. I have given consideration to the question of whether the appellant should be afforded an opportunity to obtain evidence that he made any such request. I am not satisfied that he should be afforded that opportunity, nor am I satisfied that he should be granted leave to raise what is effectively a new ground of judicial review on this appeal.
5. Proceeding from an assumption that an adjournment was sought, I do not consider there to be a reasonable basis to argue that the Tribunal would have acted unreasonably in refusing to grant such a request. The appellant's case before the Tribunal was that M could not appear at all due to her drug use and other issues. There was a long history of non-attendance by M and there was no evidence before this Court on appeal that would indicate that there could be any reasonable basis for the Tribunal to conclude that an adjournment of its hearing would result in an attendance from her.
6. In reaching the above conclusions I have had regard to the appellant's status as a non-lawyer and the circumstance that he appeared before me to make oral submissions without the assistance of another person.
7. However, I have also observed that the ANOA and the written submissions relied upon by the appellant are replete with references to the law. The submissions attributed to the appellant in these reasons are drawn principally from the written materials filed by him and not from his oral submissions. On the basis of the oral submissions, I have formed the view that the appellant was ignorant of the legal arguments raised in those documents. The appellant told the Court that he was assisted in the preparation of the documents by another person. He said that person was a lawyer but not "officially" so. He added that the person was a friend residing in India. I infer that the appellant has had some degree of legal assistance in the preparation of his written submissions, where the assertion that the Tribunal refused to grant an adjournment request was made for the first time.
8. I afford those circumstances some weight when asking whether the appellant should now be afforded an opportunity to obtain evidence to prove that an adjournment was sought at the time and in the manner that he alleged. I consider the appellant has had sufficient opportunity to prepare for this appeal, including by preparing evidence to support any application to introduce a new argument and evidence to support it.
9. Leave to introduce the new argument is refused.

1. The sixth issue is whether the primary judge erred by proceeding on the erroneous assumption that the appellant and M had claimed to be in a de facto relationship whereas they were in fact legally married: ANOA, [6]. The appellant asserts that the error is disclosed in this passage of the reasons of the primary judge (at [17]):

Ground 10 claims that the Tribunal committed error by failing to consider other evidence provided by the applicant, including photos with his wife and son, joint purchases and bank accounts, joint invitations and the like. The last joint bank account, of which there is evidence, appears to have been closed in August 2016, more than two years before the Tribunal hearing. The evidence of the bank accounts is not evidence that at the time of the hearing the applicant was in a de facto relationship with Ms M. Similarly with the other documents, they may be consistent with the applicant having been in a relationship with Ms M at some point, but they were certainly not cogent evidence that he was at the time of the Tribunal hearing, particularly when Ms M failed to appear.

1. I accept that the primary judge erroneously framed a question concerning the forensic significance of the bank accounts as one concerning an alleged de facto relationship. However, it is clear that the reference to a de facto relationship did not bear materially on the outcome when considered in the context of the reasons as a whole and the limited task of the primary judge. That task was to assess whether the Tribunal's decision was affected by jurisdictional error for the reasons asserted in the grounds for judicial review.
2. I would not grant relief on this appeal by reference to the error asserted by the appellant in any event. That is because the submissions made in support of the tenth ground for judicial review at first instance could not succeed on any view of the evidence and the law. The Tribunal referred to Mr Singh's evidence that he no longer had a joint bank account with M and his assertion that the absence of a joint account was explained by her drug use. Read as a whole, the reasons indicate that the Tribunal did not accept that explanation at face value.
3. Mr Singh himself had told the Tribunal that he was unable to provide supporting evidence of the relationship other than the evidence of the two statutory declarations he had provided from his friends. The Tribunal's reasons indicate that evidence of bank accounts had been considered by it, and that the Tribunal did not consider them to evidence the existence of a continuing relationship. The Tribunal itself did not mischaracterise the relationship as a de facto relationship. Accordingly, the primary judge was plainly correct in rejecting the tenth ground for judicial review.

1. For the purposes of Pt 8B of the Act, I conclude that the grounds of appeal relied upon in this matter had no reasonable prospects of success.
2. An issue arises as to whether there should be one or more orders as to costs under s 486F of the Act or otherwise in the exercise of the Court's discretionary powers under s 43 of the Federal Court of Australia Act 1976 (Cth).
3. The costs questions will be framed and determined upon hearing from the parties and any affected non-party.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.