Wongchalee v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1281

1. The applicant is a citizen of Thailand who applied for a Partner (Temporary) (Class UK) Visa on 5 June 2017. Her sponsor was one Mr Williams.
2. On 24 May 2019, Mr Williams was convicted of criminal offences involving the indecent assault of minors. He was sentenced to a term of imprisonment of 9 and a half years. It was not in dispute that the conviction was in respect of a "relevant offence" under Regulation 1.20KC(2)(a) of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations).
3. On 24 December 2020, a delegate of the Minister found that Mr Williams had been convicted of offences of such gravity that the requirement that the sponsorship of the applicant be refused ought not to be waived, on the basis that it would be unreasonable to do so. The delegate found that the applicant did not meet the criteria for the grant to her of a visa under s. 65 of the Migration Act (1958) (Cth) (the Act) and the visa application was refused.
4. Regulation 1.20KC of Schedule 1 to the Regulations relevantly provided as follows:

1.20KC Limitation on approval of sponsorship - prospective marriage and partner visas

Applications for which visas?

(1) This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:

(a) a Prospective Marriage (Temporary) (Class TO) visa;

(b) a Partner (Provisional) (Class UF) visa;

(c) a Partner (Temporary) (Class UK) visa.

Relevant offences

(2) This regulation applies in relation to an offence (a relevant offence) against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

(a) violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;

(b) the harassment, molestation, intimidation or stalking of a person;

(c) the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;

(d) firearms or other dangerous weapons;

(e) people smuggling;

(f) human trafficking, slavery or slavery‑like practices (including forced marriage), kidnapping or unlawful confinement;

(g) attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);

(h) aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

Sponsor has significant criminal record in relation to relevant offence

(3) The Minister must refuse to approve the sponsorship of each applicant for the visa if:

(a) the sponsor has been convicted of a relevant offence or relevant offences; and

(b) the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).

(4) Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):

(a) the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;

(b) the best interests of the following:

(i) any children of the sponsor;

(ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

(c) the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

Police check

(5) To determine whether a sponsor has been convicted of a relevant offence, and whether the sponsor has a significant criminal record in relation to a relevant offence, the Minister may, on one or more occasions, request the sponsor to provide a police check relating to the sponsor from any, or all, of the following:

(a) a jurisdiction in Australia specified in the request;

(b) a foreign country, specified in the request, in which the sponsor has lived for a period, or a total period, of at least 12 months since the latest of the following dates:

(i) 10 years before the date of the request;

(ii) the date the sponsor turned 16.

(6) In addition to subregulation (3), the Minister may refuse to approve the sponsorship of each applicant for the visa if:

(a) the Minister has requested a police check from the sponsor under subregulation (5); and

(b) the sponsor does not provide the police check within a reasonable time.

1. The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
2. On 23 August 2024, the applicant appeared before the Tribunal with the assistance of a migration agent for the purpose of presenting arguments and making submissions.
3. On 10 September 2024, the Tribunal by written reasons affirmed the decision of the delegate. It found that the applicant did not meet the requirements of cl. 820.221(4) of Schedule 2 to the Regulations. Clause 820.221 of the Regulations relevantly provided as follows:

(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3).

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

(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

(c) has developed close business, cultural or personal ties in Australia.

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

(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

(b) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring partner:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Note: For special provisions relating to family violence, see Division 1.5.

(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:

(a) the sponsorship has been approved by the Minister and is still in force; and

(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.

Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.

(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:

(a) the conviction has been quashed or otherwise nullified; or

(b) both:

(i) the sponsor has been pardoned in relation to the conviction; and

(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.

1. On 11 October 2024, the applicant's lawyers filed an Originating Application for Review of the decision of the Tribunal.

1. The Grounds of Review at the time of the hearing before the Court were as follows:
   1. The decision is infected by jurisdictional error because the decision-maker misunderstood and misapplied the discretion under regulation 1.20KC in the Migration Regulations 1994 (Cth) (Migration Regulations).

Particulars

(a) Sub-regulation 120KC(4) provides a discretion for the approval of the sponsorship if the decision-maker "considers it reasonable to do so", having regard (without limitation) to the matters listed therein.

(b) At [51], the decision-maker identified that, in making the decision, the test she applied (and should apply) was to weigh, on one hand, matters that might favour granting of the visa against, on the other hand, the nature of the sponsor's offence, the extent of the sponsor's rehabilitation and whether the sponsor demonstrated sufficient remorse.

(c) No such test is prescribed by sub-regulation 120KC(4), and limitation of the discretion in that way amounts to a misapplication and misunderstanding of the discretion.

(d) That error is also reflected in the erroneous description, at [23] in the decision, of the purpose of the introduction of sub-regulation 120KC(4) of the Migration Regulations, as identified in the explanatory statement for the 2016 amending statutory instrument.

2. The decision is infected by jurisdictional error because the decision-maker adopted, as a material matter informing the decision, an assumption that was not based on any evidence or otherwise warranted.

Particulars

(a) At [33], the decision-maker rejected the evidence that the applicant would be unable to find work in Thailand, "given her qualifications and work experience".

(b) That finding was against the evidence presented by or for the applicant, and was embedded with unstated assumptions as to the availability of employment in Thailand for a person in the circumstances of the applicant (including as to age, gender, qualifications and work experience).

(c) The decision-maker evidently imputed her understanding of the economic and cultural position of such persons in Australia to those in Thailand without identifying any basis (in country information or otherwise) for that imputation.

1. As to Ground 1, it was submitted on behalf of the applicant that at [51] of its reasons, the Tribunal misapplied sub-regulation 1.20KC(4) when exercising its discretion to not waive the refusal of the sponsorship nomination. The Tribunal's findings at [51] of its reasons were as follows:
   1. Having considered the information before me, including the length of the relationship, Mr Williams' rehabilitation and low risk of reoffending, family support, employment, the effect on Ms Wongchalee and Mr Williams' family of an adverse decision and the effect on Mr Williams, I am not satisfied these factors outweigh the nature of the offending, that Mr Williams has not yet completed his sentence and the early indication that he did not engage with the gravity of his offending. His rehabilitation is incomplete.
2. It was submitted that the " ... imposition of a test requiring determination of whether factors related to hardship on Ms Wongchalee and Mr Williams' family were, or were not, outweighed by factors related to Mr Williams' offence, including the nature of the offence, his remorse and his rehabilitation" constituted a departure from the scope of the discretion afforded to the Tribunal under sub-regulation 120KC(4) of Schedule 1 to the Regulations. [1]
3. Though accepting that the matters for consideration under sub-regulation 1.20KC(4) were non-exhaustive, [2] it was submitted on behalf of the applicant that the Tribunal had impermissibly imposed its own test " ... under the veil of a broad exercise of discretion and failed to apply its discretion to the statutorily-prescribed task of determining whether it "considers it reasonable" to approve Mr Williams' sponsorship of Ms Wongchalee's visa application." [3] It was submitted that that amounted to a misunderstanding of the sub-regulation, and a misapplication of such sub-regulation for the purpose of the exercise of the discretion so as to constitute jurisdictional error. Reliance was placed upon the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 where it was said:

"But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of the law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review."

1. Further, it was submitted that at [23] of its reasons the Tribunal mischaracterised what was relevantly contained in the Explanatory Statement issued by the Minister in respect of amendments to the regulations introduced by the Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016 (Cth) as set out in Schedule 6 to Attachment B of the Statement under the heading "Family Violence". Paragraph [23] of the reasons of the Tribunal, and the relevant extract from the Explanatory Statement, were respectively as follows:
   1. Regulation 1.20KC was inserted into the Regulations by the Migration Legislation (2016 Measures No. 3) Regulation 2016, Schedule 6, Item 1. The purpose of this amendment as stated in the explanatory memorandum as being to share the sponsor's relevant offences with the applicant so they can decide whether to continue with the visa application, and to refuse to approve sponsorship for people with serious and violent criminal pasts, thereby preventing visas being granted to potentially vulnerable people. I have considered this purpose in looking at whether it is reasonable to approve the sponsorship.

Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016

These amendments are intended to strengthen the integrity of the programme and improve support for applicants by giving the Department the ability to:

• share the sponsor's relevant offences with the applicant so they can decide whether to continue with the visa application process; and
• refuse to approve the sponsorship for people with serious and violent criminal pasts and thereby preventing a visa from being granted to potentially vulnerable people.

1. In reliance upon LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [6] and [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ and at [42] per Beech-Jones J, it was submitted that the errors claimed to have been committed by the Tribunal were material and jurisdictional in nature, in that had the errors not been made, there was a realistic possibility that the decision could have been different. Reliance was also placed upon AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586 at [50] - [51] per Kennett J
2. The Court does not accept such submissions. The Court finds that the Tribunal did not misconstrue, misunderstand, or misapply sub-regulation 1.20KC(4). At [52] of its reasons, after having set out how it was not satisfied that certain matters did not outweigh the nature of Mr Williams' offending, the Tribunal specifically found that it was not satisfied, in such circumstances, that it would have been reasonable to approve the sponsorship. In so finding, the Tribunal was duly performing its function in deciding the issue before it.
3. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 165 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ, it was held as follows:

When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24):

"The reasons for the decision under review are not to be construed

minutely and finely with an eye keenly attuned to the perception of error".

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25).

1. At [51] of its reasons, the Tribunal was merely setting out those matters which it weighed up when arriving at its decision. The Tribunal did not err in recording that it had adopted that approach when arriving at its decision.
2. There was nothing in the reasons of the Tribunal which could reasonably be found to have constituted a misunderstanding as to what was contained in the Explanatory Statement. There was no need for the Tribunal to set out the content of the statement in its entirety. To the extent that the Tribunal referred to the Explanatory Statement, its references thereto were not to be microscopically examined for error. There was a general appreciation by the Tribunal of the domestic violence considerations leading to the enactment of the sub-regulation. Why else would the Tribunal have referred generally to the content of the quoted part of the Explanatory Statement at [23] of its reasons? There is no merit to Ground 1 of the Grounds of Review.
3. As to Ground 2, the Court accepts the submissions made on behalf of the first respondent that the Court ought to find that the Tribunal did not make any relevant finding about the applicant's prospects of obtaining employment in Thailand. It simply found that it did not accept that the applicant would be unable to find work in Thailand. When considering hypothetical scenarios, a Tribunal is entitled to express doubt about whether a contention advanced before it would be satisfied or not, and effectively state, as here, that it did not accept that the contention ought to be accepted. In any event, the Tribunal was not required, under s. 368 of the Act, to give reasons as to why it was not satisfied of a particular fact. [4] That was particularly so in circumstances where the evidence before the Tribunal was that the applicant held a Bachelor of Electrical Engineering for about 10 years before coming to Australia when she worked for a Japanese company in a research and development role in Thailand. There was also other evidence of the capacity of the applicant to be engaged in several other forms of employment. [5] The applicant's claims about her likely difficulty in finding work in Thailand was merely a bare assertion unsupported by evidence. It was not the subject of any clearly articulated argument. [6]
4. Further, the Court finds that even if the Tribunal had erred in finding at [33] of its reasons that the applicant would be able to find work in Thailand by reason of her qualifications and work experience, any such error would not have been material, in that such issue was one which would have been subsumed by the Tribunal's considerations regarding the seriousness of the offences with which Mr Williams had been convicted. Having regard to such convictions, there was no realistic possibility that even if the Tribunal had found that the applicant could not have obtained work back in Thailand, that that would have been a reason for arriving at a different decision in respect of the approval of her sponsorship. The Tribunal had focused upon the seriousness of the convictions, and it was open for the Tribunal to find that such convictions justified non-approval of the sponsorship nomination, irrespective of any finding related to a less compelling issue.
5. Further, in the absence of any evidence that the applicant would be unable to obtain employment in Thailand, the applicant has not reached the threshold whereby it could be said that any error of the Tribunal in making any such finding could give rise to a realistic possibility that the Tribunal could have arrived at a different decision. The ground of review is without merit.
6. The applicant has failed to establish jurisdictional error on the part of the Tribunal.
7. The Grounds of Review are without merit and are dismissed.
8. The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] [14] of applicant's written submissions filed on 7 July 2025.

[2] [15] of applicant's written submissions.

[3] [19] of applicant's written submissions.

[4] Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295

FCR 210 at [26] per Burley, Thomas and Abraham JJ.

[5] See Exhibit 1 (Court Book) CB p. 363 - 364.

[6] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier,