Somal v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 343

Note: The form of the order is subject to the entry in the Court's records.

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. Before the Court is an application for judicial review seeking, inter alia, orders quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 December 2018 affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Partner (Subclass 820) visa (visa) pursuant to the Migration Act 1958 (Cth) (Act).

1. The background and summary of the Tribunal's decision are primarily derived from the written submissions of the first respondent. Unless otherwise indicated, the following does not appear to be in dispute.
2. The applicant is a citizen of India (Court Book (CB) 71).
3. On 8 June 2009, the applicant arrived in Australia, holding a Student (Subclass 572) visa. The student visa was cancelled on 10 September 2010 and the applicant subsequently applied for three protection visas on each of 7 March 2011, 28 March 2011 and 6 June 2011. Those applications were each found to be invalid.
4. On 29 May 2014, the applicant applied for the visa on the basis of his spousal relationship with an Australian citizen (sponsor) (CB 125 and 238 at [2]).
5. On 9 September 2014, the applicant was invited to comment on information that he was not the holder of a substantive visa at the time of the aforementioned application, and specifically to address the Schedule 3 criteria contained in the Migration Regulations 1994 (Cth) (Regulations) (CB 76 to 80). The applicant's representative responded on 3 October 2014 with an email submission and supporting documents (CB 81 to 116).
6. On 14 January 2016, the delegate refused the applicant's application for the visa on the basis that the applicant did not satisfy cl 820.211 of Schedule 2 to the Regulations (CB 121 to 124).
7. On 31 January 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 151 to 152). On 30 August 2016, the Tribunal affirmed that decision (first Tribunal decision) (CB 204 to 208).
8. The first Tribunal decision was the subject of a judicial review application to the (then) Federal Circuit Court (FCCA). On 4 October 2017, the FCCA made orders by consent quashing the first Tribunal decision, and remitting the proceedings to the Tribunal to be redetermined according to law (CB 213 to 214). The error accepted by the FCCA was that the Tribunal had denied the applicant procedural fairness by failing to disclose the existence of a certificate issued pursuant to s 375A of the Act to the applicant during the review.
9. On 2 August 2018, the first respondent's Department issued a s 376 Certificate in respect of other documents (being documents other than those which were the subject of the s 375A Certificate) (CB 218).
10. On 19 October 2018, the applicant was invited to attend an in-person hearing before the Tribunal on 12 December 2018 (CB 219 to 222). The applicant responded to the invitation to hearing on 24 October 2018, indicating that he and the sponsor would each attend the hearing (CB 223 to 227).
11. On 12 December 2018, prior to the Tribunal hearing, the Department revoked each of the

ss 375A and 376 certificates and issued two new certificates pursuant to s 376 of the Act (the certificates) (CB 228 to 231). 12. On 12 December 2018, the applicant attended a hearing before the (differently constituted) Tribunal to give evidence and present arguments with the assistance of an interpreter in the Punjabi language (CB 232 to 233). The sponsor did not attend. 13. On 13 December 2018, the Tribunal affirmed the decision to refuse the applicant the visa. It is that decision which is the subject of these review proceedings.

1. Clause 820.211 of Schedule 2 to the Regulations provides:

(a) is not the holder of a Subclass 771 (Transit) visa; and

(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

(i) if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or

(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:

(A) has turned 18; and

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) in the case of an applicant who is not the holder of a substantive visa--either:

(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B) satisfies Schedule 3 criterion 3002; 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.

3001

(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

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

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

(c) if the applicant:

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

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

whichever is the later of:

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

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

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

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

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

1. In reaching its decision, the Tribunal found that the applicant had not satisfied cl 820.211(2)(d) of Schedule 2 to the Regulations (CB 238 to 239 at [9]). In so deciding, the Tribunal:

(a) found that the applicant last held a substantive visa when his Subclass 572 Student visa was cancelled on 10 September 2010, and that he was not the holder of a substantive visa at the time he made the application for the visa on 29 May 2014 (CB 239 at [15] to [16]). The Tribunal found the applicant did not enter Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder (CB 239 at [16]). Accordingly, the applicant did not meet cl 820.211(2)(d)(i) of Schedule 2 to the Regulations, and was required to satisfy the Schedule 3 criteria unless there were compelling reasons for not applying those criteria;

(b) found that the applicant ceased to hold a substantive visa when his student visa was cancelled on 10 September 2010 and considered this to be the relevant date within the meaning of sub-cl 3000(2)(c)(i) of Schedule 3 to the Regulations. As the visa application was lodged on 29 May 2024, more than 28 days after the relevant date, the Tribunal found that the applicant did not meet criterion 3001 of Schedule 3 (CB 239 to 240 at [18]);

(c) noted that cl 820.211(d)(ii) allows for criterion 3001 to be waived if the Tribunal is satisfied there are compelling reasons for not applying the criterion;

(d) considered whether there were compelling reasons for not applying the Schedule 3 criteria by reference to the applicant's evidence, including his submissions to the Department on 3 October 2014 and the evidence provided at both the first and second Tribunal hearings (CB 240 at [20], [24] to [33]);

(e) considered the applicant's submission to the first Tribunal in which he stated that "[the sponsor] would suffer emotional hardship resulting from the separation from him and that he would miss her because he loves her very much" (CB 240 at [25]). Further the applicant said the sponsor's son thinks of him as his father, and it would be difficult for them to live apart (CB 240 at [25] and [33]). The Tribunal considered the evidence given at the second Tribunal hearing on 12 December 2018, during which the applicant claimed he was depressed following his separation from his first wife (CB 241 at [28]), and that he had previously received poor migration advice which contributed to him living unlawfully in Australia for a period of time (CB 241 at [30]);

(f) found there to be no evidence to support the applicant's claim that he was clinically depressed. The Tribunal did not consider the claim to be sufficiently compelling so as to waive the Schedule 3 criteria on that basis (CB 243 at [42] to [43]). Accordingly, the Tribunal did not accept the claim;

(g) was not satisfied that the length of relationship, any potential hardship from separation and the applicant's claimed closeness to an Australian citizen child of the sponsor were compelling reasons for not applying the Schedule 3 criteria (CB 244 at [47]);

(h) was not satisfied that the applicant's claim to have received poor migration advice was itself a compelling reason, and observed that no evidence had been presented to support the claim. The Tribunal noted that onus was on the applicant to regularise his own migration status and make competent applications to the Department (CB 244 at [48]);

(i) put to the applicant, pursuant to s 359AA of the Act, adverse information on the Department file to the effect that the applicant had paid the sponsor to enter into a contrived relationship. The applicant denied the allegation (CB 242 at [34]); and

(j) discussed with the applicant its view that the s 376 certificates were each valid, and that the documents covered by the certificates were relevant to the issues in the review. The Tribunal discussed the aforementioned allegations with the applicant and decided not to put significant weight on those allegations (CB 243 at [39]). The Tribunal recorded that the applicant chose not to comment on the validity of the certificates and that he again disputed the allegations (CB 243 at [39]).

1. The Tribunal concluded that the applicant did not meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision (CB 244 at [48] to [49]).

1. As noted above, the applicant commenced these proceedings by an application to show cause filed on 19 December 2018. The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 31 January 2019, a Registrar of the Court made orders by consent for the preparation of the matter for hearing at a time to be administratively advised, and granted the applicant leave to file an amended application and any additional evidence by 14 March 2019. The applicant filed an Amended Application on 14 March 2019.
2. The proceedings were later placed in the central migration docket. On 14 September 2023, the proceedings were called-over by a Registrar of the Court, on which occasion the parties appeared by telephone. The proceedings were later docketed to me and, on 6 March 2024, I made preparatory orders, inter alia, listing the matter for hearing on 7 June 2024 and providing an additional grant of leave to the applicant to amend. The applicant and first respondent were ordered to file written submissions 14 and 7 days before the hearing date (respectively).
3. The parties appeared before me for hearing on 7 June 2024. The applicant was unrepresented but assisted by an interpreter in the Punjabi language. The first respondent was represented by a solicitor. Despite having been ordered to do so, the applicant did not file written submissions in time, or at all. The Court Book was tendered at hearing for the first respondent and marked Exhibit "1R".

1. By his Amended Application the applicant raises the following grounds (grounds renumbered[1], otherwise case and errors in original):
   1. APPLICANT CLAIM THAT THE ADMINISTRATIVE APPEAL TRIBUNAL MADE JURISDICTION ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM THE APPLICANT TO CONSIDER HIS ARGUMENTS.
   2. APPLICANT ALSO CLAIM HE RECEIVED POOR MIGRATION ADVICE.BUT AAT DON'T LISTEN TO HIM.
   3. APPLICANT IS IN TREMENDOUS DEPRESSION AND HE CANNOT COPE UP WITH DAY TO DAY LIFE .HE SAID DURING HIS INTERVIEW.
   4. APPLICANT WAS IN GENUINE RELATIONSHIP BUT DUE TO ONGOING PROBLEM THEIR RELATIONSHIP WAS BROKE.
   5. APPLICANT AND HIS PATENER BOTH STAYED TOGETHER.
   6. APPLICANT SATISFY ALL CRITERION BUT AAT DIREGARDS ALL CLAIM.
   7. AAT IGNORES HIS MEDICAL CONDITION
2. In addressing the grounds of review, the first respondent divided them into two groups, namely:

(a) grounds 1 to 5 (inclusive) and ground 7, relating to an alleged failure by the Tribunal to consider the applicant's claims (group 1 grounds);

(b) ground 6, by which the applicant alleged that he satisfied all the relevant criteria for the granting of the visa, but that the Tribunal disregarded his claims.

1. Ground 1 alleges that the Tribunal erred by failing to consider "the appeal" from the applicant. Grounds 2 to 5 (inclusive) and ground 7, essentially repeats submissions made to the Tribunal in relation to the applicant's claims of compelling circumstances which he says were sufficiently compelling to justify waiver of the Schedule 3 criteria.
2. At hearing, these grounds were interpreted to the applicant and he was given the chance to address them. In respect of most of the grounds, the applicant did not have submissions to make.
3. In respect of ground 1 however, the applicant essentially said that he believed that because the first Tribunal decision was remitted for redetermination, the decision would be favourable. The applicant said:[2]

I didn't make any error as far as I am concerned at the tribunal hearing. So I don't know why they declined my application.

1. The Court explained to the applicant that the second Tribunal's reasons for decision explain why it (to use this words) declined the application. The applicant did not say anything further in this regard. While it might be understandable that the applicant took the view that, because error was found by the FCCA, that the matter was to be remitted to the Tribunal to make a decision favourable to him, that was not in fact the task of the Tribunal on remittal. Rather, the Tribunal was required to determine the matter for itself again, according to law and by avoiding the same error which had been accepted as being present by the Court. There was no guarantee on remittal that the Tribunal would make a decision to grant the applicant the visa. Accordingly, ground 1 is not made out.
2. In relation to ground 2, the Court took the applicant to [48] of the Tribunal's decision (CB 244) where the Tribunal said:

The review applicant contends that he received poor migration advice previously, which contributed to him being unlawful for a period.

1. The applicant was given the opportunity to make submissions in respect of ground 2 but did not do so. The first respondent says that the Tribunal found there to be no evidence given by the applicant in support of his claim to have received poor migration advice which had resulted in him being unlawful for a period. The first respondent says further that the Tribunal had regard to the applicant's oral evidence that he never met the migration lawyer in question and that the applicant's migration status was his own responsibility. The first respondent says that it was for these reasons that the Tribunal did not accept that the circumstances surrounding the quality of migration advice the applicant may have received to be a compelling reason for not applying Schedule 3 criteria.
2. The Court explained to the applicant that there is a difference between the Tribunal failing to consider matters, and considering them but not coming to the decision he may have wanted. Overall, I am not satisfied that there is any error as advanced by ground 2, nor in relation to the Tribunal's findings in respect of the applicant's migration advice and how it was assessed in respect of being a compelling reason to not apply the Schedule 3 criteria. For these reasons, ground 2 is not made out.
3. By grounds 3 and 7, the applicant says that the depression he experienced was the result of the second Tribunal decision and his separation from his wife, which occurred after the Tribunal had made its decision. As was explained to the applicant, being circumstances which post-dated the Tribunal's decision, these could not have been taken into account by the Tribunal when making findings about whether compelling reasons existed to not apply the Schedule 3 criteria. Accordingly, grounds 3 and 7 do not demonstrate error on the part of the Tribunal.
4. Grounds 4 and 5 of the Amended Application protest the truth of the applicant's claim to be in a genuine relationship with the sponsor. However, I agree with the submissions of the first respondent that the Tribunal considered the applicant's claims about the relationship but, in light of his evidence that he had not seen his sponsor for two years, was not satisfied that the longevity of the relationship constituted a compelling reason (CB 243 to 244 at [45]). The grounds are otherwise an attempt to have the Court engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
5. Overall, in respect of the first group of grounds, the first respondent submitted that the Tribunal's findings were open to it on the material before it and the Tribunal was not required to uncritically accept any of the applicant's claims. I agree.

1. By ground 6, the applicant simply contends that that he satisfied the Schedule 3 criteria and therefore should have been granted the visa. It was, however, a matter for the Tribunal to determine whether the applicant satisfied the visa criteria.
2. The first respondent says that this ground simply expresses disagreement with the Tribunal's findings of fact and/or seeks to reagitate the applicant's claims, it constitutes an impermissible invitation to the Court to engage in merits review, citing Wu Shan Liang (supra). I agree that it does.
3. As was explained to the applicant several times at hearing by the Court, the fact that the Tribunal did not make a decision that the applicant considered favourable, does not mean that it failed to consider the claims and evidence before it, nor that it failed to properly assess the applicant's circumstances by reference to the visa criteria.
4. I am not satisfied that there is any error in the Tribunal's decision as alleged by the applicant's grounds.

1. In his capacity as a model litigant, the first respondent also addressed the s 376 certificates which covered information to the effect that the relationship between the applicant and sponsor was not genuine.
2. As the first respondent correctly observes, the Tribunal discussed the allegations with the applicant and decided that significant weight would not be placed on the allegations. The applicant elected not to comment on the validity of the certificates, and otherwise denied the substance of the allegations.
3. I accept the first respondent's submissions that the Tribunal had complied with its procedural fairness obligations as the applicant was advised of the existence of both certificates, and relevant particulars of the information in a manner consistent with the principles identified in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 at [55] to [58] per Kenny, Perram and Mortimer JJ (as her Honour then was).
4. The first respondent was proper to raise the issue, and I agree that the manner in which the Tribunal dealt with the two s 376 certificates does not give rise to error.

1. The applicant has failed to establish error on the part of the Tribunal. Absent jurisdictional error, the decision is a privative clause decision, and the application must be dismissed. I will so order.
2. I will hear the parties as to costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] The grounds have been copied verbatim from the Amended Application, however, their numbering has been amended to correct a repetition of the number 4. This was discussed with the parties at hearing.

[2] Transcript 7 June 2024 at T7.19 to T7.21