FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCAFC 3

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 29 May 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 December 2017.

2    The Tribunal affirmed a decision of a delegate of the first respondent (Minister), made on 2 December 2016, to refuse to grant the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).

Background

3    The appellant is a citizen of India. He arrived in Australia on 24 August 2008 as the holder of a Student (Subclass 572) visa. On 20 October 2011, he was granted a Skilled Graduate (Subclass 485) visa, which expired on 20 April 2013. This was the last substantive visa held by the appellant.

4    On 27 March 2013, the appellant lodged an application for a Temporary Work (Skilled) (Subclass 457) visa, which was subsequently refused. The refusal decision was reviewed and affirmed by the Migration Review Tribunal (now the Tribunal). A judicial review application was resolved in the Minister’s favour on 20 March 2015. A request for ministerial intervention was finalised as not considered on 9 November 2015.

5    On 23 November 2015, the applicant married his current partner, Ms Mafi, whom he had met in April 2015.

6    On 17 December 2015, while he was in Australia, the appellant applied for a Partner visa on the basis of his relationship with Ms Mafi.

7    At the time of the application, the relevant Partner visa criteria were set out in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth). Part 820 contained the “primary” and “secondary” criteria for the grant of a Partner visa. The “primary criteria” were contained in clause 820.2. Clause 820.211 appeared under the heading “Criteria to be satisfied at time of application”. Subclause 820.211(2)(d) relevantly provided:

An applicant meets the requirements of this subclause if: …

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

(i)      the applicant:

(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.

8    It was common ground that the appellant did not hold a substantive visa at the time of his visa application and that he had not entered Australia as the holder of a Subclass 995 (Diplomatic) visa or special purpose visa. Accordingly, the appellant was required to satisfy the criteria in cll 3001, 3003 and 3004 of Sch 3 to the Regulations, unless the Minister was satisfied that there were “compelling reasons” for not applying those criteria.

9    Clause 3001 required the appellant to have made a partner visa application within 28 days after the date on which his last substantive visa (the Skilled Graduate (Subclass 485) visa) expired on 20 April 2013. The appellant did not satisfy that requirement. Accordingly, the issue for determination was whether there were “compelling reasons” for not applying the criterion in cl 3001.

10    On 23 August 2016, an officer of what was then the Department of Immigration and Border Protection wrote to the appellant inviting him to “provide information relating to any compelling reasons you feel apply to your case”. The appellant provided a letter in response on 9 September 2016, which included:

I thank you for providing an opportunity to explain the circumstances that led me to lodge an onshore application for Partner visa Subclass 820.

I would like to provide a brief about my immigration history. I came to Australia in 2008 with my ex-wife and we were living together until 2013 after which we got divorced i.e. in 2013. I was working with a cafe which later applied for my application for 457 visa as they wanted me to work for them since they were unable to find a good, hardworking and responsible worker like me. However, the application was not approved at that stage. I had appealed against that decision but there was no fruitful outcome. While this was happening to me, I met my wife in April 2015. We fell in love and decided to get married. Our marriage took place on 23rd November 2015. I went to a migration agent for the advice to apply for partner visa and they had suggested me to apply for offshore partner visa subclass 309.

However, as soon as I spoke to my wife that I will have to leave the country and have to wait overseas for at least 10 to 12 months for my visa to be granted, she got quite nervous as she had been facing lot of medical issues lately such as anxiousness, poorly controlled diabetes, depression, inability to sleep and heavy periods etc. (Evidence of health issues were submitted with the application. Please find attached recent evidence of health related issues) She and I were living very happily and she did not expect for the things to go this way. If I had to leave her and go to my home county for a significant period of time, it would have affected her health conditions more as she has been quite emotionally attached to me. Even in our day to day life’s routine, she needed my help to look after herself. Moreover, since we got married, she had stopped receiving benefits from the Centrelink. Also, since her health was not well, she was unable to work and I was financially supporting her and paying all our bills.

Further, a person with plenty of medical issues as her usually remains depressed due to the fear that they are not medically sound. Not many people provide the emotional support within the family of such medically victimised people. I had been treating my wife very well and she used to feel very relaxed with me. She felt safe, comfortable and cared-for in my company. So, she immediately asked me to check if there are any other options that we could seek. We went to a migration agent together to see if we have any option to apply for any other visa. The migration agent advised that the only option we have is that I can apply for onshore partner visa in which I have to justify the compelling and companionate reasons for not being able to lodge an offshore visa application.

My wife would not be able to look after herself on her own as she has been on many medications and the doctors had suggested that she needed someone to care for her during this time for improvement in her health. I also had tried my best to find out if there was anything I could do to remain on valid visa while lodging the application but unfortunately, it was too late. We both considered going back to India and stay there until my visa application is processed. However, the healthcare system in India is not as good as in Australia and also my wife’s doctors suggested not to change any medicines or treatment that my wife was undergoing. Moreover, my wife’s treatment in India would have been very expensive as she would have been billed for being an overseas citizen.

Taking into considering the fact that my wife would have faced a major upheaval which could severely affect her already frail health and cause her physical as well as mental anguish along with 1the fact that her treatment in India along with travel costs would have been put a big financial strain on us, we decided that I would lodge the onshore partner visa application subclass 820 as this was the only option left for me in our current situation.

Since, we have lodged my application, we have not been receiving any centre link benefits and I am paying our bills and my wife’s medical bills from my earnings. I have always complied with my visa conditions and have never overstayed my visa. Furthermore, I have always followed and respected the Australian laws and values of living.

I am attaching the following documents in support of my wife’s medical conditions she was suffering from at the time of application till date.

1.     Letter from GP confirming that it is recommended that I stay with her

2.     Letter from Specialist confirming that I should remain with my wife to take care of her

My wife’s health conditions should be considered compelling and companionate reasons which would have affected my wife who is an Australian citizen if I had to go overseas. Also the circumstances mentioned above were beyond my control.

…

11    That letter was before the delegate, together with other supporting documentation provided by the appellant’s representative by email on 9 September 2016.

12    After considering “the totality of the appellant’s circumstances”, the delegate concluded there were not “compelling reasons” for waiving the Sch 3 criteria. Accordingly, the delegate refused the appellant’s visa application on 2 December 2016.

The Tribunal

13    On 12 December 2016, the appellant applied to the Tribunal for review of the delegate’s decision to refuse to grant him a Partner visa.

14    On 18 November 2017, the appellant’s representative emailed approximately 240 pages of documents to the Tribunal “in support of his visa application”. Of particular relevance to the appeal were a number of medical documents in respect of Ms Mafi, which included:

(1)    a report from Ms Mafi’s general practitioner, Dr Jirjis, dated 6 November 2017;

(2)    a report from Ms Mafi’s treating endocrinologist, Dr Kok, dated 7 November 2017;

(3)    a report from Ms Mafi’s psychiatrist, Dr Way, dated 13 November 2017;

(4)    a referral letter prepared by Dr Kok dated 12 April 2017;

(5)    various medical certificates apparently provided to Centrelink, which were certified between 3 September 2012 and 13 November 2017;

(6)    various medical certificates and statements prepared by Dr Kok between 25 November 2015 and 22 August 2017;

(7)    various medical certificates prepared by Dr Way between 10 May 2017 and 25 September 2017; and

(8)    evidence of prescriptions dispensed to Ms Mafi between early 2015 and 6 November 2017, together with pharmacy receipts.

15    The appellant’s representative also provided the Tribunal with an undated document entitled “Statutory Declaration” signed by Ms Mafi (but which was not in fact a statutory declaration) and an undated written statement signed by Ms Mafi. Neither of these documents, nor the email mentioned above, referred to, or placed any particular significance on, any specific parts of the medical reports and certificates listed above, nor any of the opinions expressed in them.

16    The appellant appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. Ms Mafi also gave oral evidence. The appellant’s representative did not attend the hearing, but was available by telephone, if needed: T[5].

17    As the Tribunal recognised, the principal issue for it was whether there were “compelling reasons” for not applying the relevant Sch 3 criteria. The Tribunal summarised its understanding of the law as to the meaning of the undefined term, “compelling reasons”, at T[16] to T[18]. No complaint was made about its analysis.

18    The Tribunal summarised the medical evidence before it at T[21] (footnotes omitted, emphasis added):

The medical report [Dr Way’s report of 13 November 2017] provided by her consultant psychiatrist states that the sponsor was referred to him on 10 May 2017. Since then she has been seeing him every 4 to 8 weeks for supportive psychotherapy and monitoring of her major depressive disorder. It states that she is always accompanied by her husband who is her carer and supervises her medications. It refers to her medical history which indicates that she suffers from chronic illnesses including insulin dependence diabetes, chronic back pain related to the collapse of an inter vertebral disc in her lumbar spine, chronic osteoarthritis of the knees, chronic renal colic and urinary tract infection, morbid obesity, major depressive disorder and generalised anxiety disorder. According to this report she suffers from a moderate degree of disability as a result of her chronic medical conditions. A letter from the sponsor’s GP [Dr Jirjis] dated 6 November 2017 essentially refers to the same conditions. A report from the sponsor’s treating endocrinologist [Dr Kok] of 7 November 2017 refers to her diabetes being poorly controlled and that the sponsor [sic] assists her manage her diabetes including taking her medications, her insulin injections and also checking her blood glucose levels regularly.

19    In this summary, the Tribunal did not specifically refer to the following sentence in Dr Way’s report of 13 November 2017:

It is my opinion that Ms Mafi’s mental state is likely to deteriorate significantly and her other medical conditions, including diabetes mellitus, become destablised [sic] without the support and supervision consistently provided by her husband.

20    The Tribunal’s statement that “the sponsor assists her manage her diabetes” must have been intended to mean “the [appellant] assists her [meaning Ms Mafi, the sponsor] manage her diabetes”.

21    At T[23] and T[24], which appear in the Tribunal’s reasons under the heading “evidence before the Tribunal”, the Tribunal stated (footnotes omitted, emphasis added):

The applicant’s statement in relation to the Schedule 3 criteria submitted to the Tribunal in writing prior to the hearing refers to the fact that the parties do not want to separate during the golden time of their lives, the sponsor’s serious medical conditions and that treatment in India would be very expensive, and that a major upheaval could affect the sponsor’s health, his view that the first few years of relationship lay the foundations for the future, and that the sponsor has not been receiving Centrelink benefits since they married. Finally, it refers to the Department of Foreign Affairs and Trade Smart Traveler warning about travelling in India and that the warning cautions of the high risk of terrorist attacks, activities by militant groups, civil unrest and crime.

The applicant also submitted a statement from the sponsor indicating that she will struggle to cope without the applicant. It refers to the medical records provided and the information contained in them. She also talks about her past and that the sponsor helps her by ensuring that she does not maintain her bad habits of eating junk food and being lazy, and he reminds her about taking her medication, ensures she attends her doctor’s appointments, and encourages her to take a short daily walk. She also refers to the sense of safety and security she feels through their relationship. The sponsor also refers to the fact that she is unable to work because of her medical conditions and that her husband supports her financially. She states that she has willingly taken on all household responsibilities including cooking and cleaning. She refers to the verbal, emotional, financial and physical support provided by the applicant and his invaluable love, compassion and understanding. She states that she hopes to be a mother one day

22    The Tribunal summarised the evidence given at the hearing at T[25] to T[45]. The Tribunal dealt with Ms Mafi’s medical conditions in the following way (footnotes omitted):

The sponsor’s medical conditions

46.    The Tribunal has considered the information and evidence put forward in relation to the sponsor’s medical conditions. The Tribunal notes that the submission provided by the sponsor’s GP refers to the sponsor “complaining of many illnesses , Diabetes Mellitus, Lumbar Disc Prolapse, obesity and depression, for the last 10 years, she is on multiple medication and on insulin injections”. The letter of support provided by the sponsor’s endocrinologist refers to the fact that he has “been looking after her diabetes since March 2014.

47.    The Tribunal has had regard to the fact that the sponsor’s medical conditions are all being treated by the various doctors that she sees and that while she takes pain relief and other medication, including for her diabetes, that she is able to take these herself. The Tribunal recognises that the applicant has supported the sponsor in attending her medical appointments. However, no evidence was presented to the Tribunal that the sponsor cannot attend the appointments without him. In light of the fact that most of her medical conditions were diagnosed prior to the sponsor meeting and marrying the applicant, the Tribunal considers that she can manage them on her own, even though she may prefer to have his support and benefits from it.

48.    The Tribunal has also had regard to the fact that the sponsor has travelled overseas on a number of occasions in recent years. The records show also that the applicant did not travel with the sponsor in 2015. Although the sponsor was not forthcoming about the details of the trip she did indicate that she travelled to India at that time. In assessing whether the sponsor’s health might be a compelling reason to waiver the Schedule 3 criteria, the Tribunal put some weight on the fact that the sponsor is not severely restricted in her movements.

49.    The Tribunal acknowledges the more recent referral to a psychiatrist. No evidence was presented to the Tribunal which would indicate that the sponsor could not continue to see the psychiatrist and avail herself of the treatment he provides, although the Tribunal recognises that the sponsor may see value in the applicant’ accompanying her.

50.    The Tribunal is satisfied that the sponsor’s medical conditions do not provide a compelling reason to not apply the Schedule 3 criterion.

23    At T[51] to T[53], the Tribunal dealt with issues of potential financial hardship which had been raised. It then dealt with the claims raised by the appellant with respect to the importance of the early stages of a marriage and the support the appellant and Ms Mafi provided each other: at T[54] to T[56].

24    The Tribunal set out its “overall assessment”, or conclusion, in the following way:

Overall assessment

59.    The applicant has submitted the parties are in a genuine and long term relationship. He claims that a temporary absence will impact adversely on their relationship, the sponsor’s depression and anxiety will worsen and that the sponsor will be affected negatively physically, emotionally and economically and that the sponsor is unable to look after herself on her own as a result of her medical conditions and medications.

60.    The Tribunal has considered these reasons, separately and cumulatively, but is not persuaded they provide compelling reasons for not applying the Schedule 3 criteria in this case.

25    On 6 December 2017, the Tribunal decided to affirm the decision under review.

The Federal Circuit Court

26    On 3 January 2018, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. By an amended application, the appellant advanced two grounds of review:

1.     The Tribunal erred by failing to take into account all of the claims made by the Applicant.

Particulars

The Tribunal failed to take into account expert medical opinion in support of a claim that the Applicant’s spouse’s mental and physical health would deteriorate significantly without the support and presence of the Applicant.

2.     The Tribunal purported to exercise its jurisdiction in a manner that was unreasonable.

Particulars

(a)     The Tribunal acknowledged that a long-standing relationship could on its own be a compelling reason for not applying the criteria in Schedule 3, but then rejected that claim without any evident or intelligible justification.

(b)     The Tribunal’s assumption that because the spouse’s medical conditions had been diagnosed before she met and married the Applicant she could then manage them on her own without him had no rational or reasonable basis.

27    The Federal Circuit Court dismissed the application for judicial review on 29 May 2018. It is not necessary to say more about the decision of the Federal Circuit Court. As will be seen immediately below, the only error alleged in respect of the Federal Circuit Court is a contended failure on its part to recognise a jurisdictional error on the part of the Tribunal. The principal question then is whether there was jurisdictional error on the part of the Tribunal.

The appeal

28    At the hearing of the appeal, leave was granted to the appellant to rely on amended grounds of appeal, which ultimately took the following form:

1.    The Federal Circuit Court erred by failing to find that the Second Respondent (“the Tribunal”) had not given proper genuine and realistic consideration to the claim that the sponsor’s depression and anxiety and diabetes would worsen if he returned to India.

2.    The Federal Circuit Court erred by failing to find that the Tribunal had purported to exercise its jurisdiction in a manner that was unreasonable.

Particulars

The Judge should have found the Tribunal’s conclusion that the sponsor could manage on her own because she had managed prior to meeting the applicant was so unreasonable that no reasonable decision maker could reach that conclusion.

3.    The Tribunal erred by failing to take into account all of claims and evidence made by the Applicant.

Particulars

The Federal Circuit Court erred by failing to find that the Tribunal had failed to take into account expert medical opinion in support of a claim that the Appellant’s spouse’s mental and physical health would deteriorate significantly without the support and presence of the Appellant.

Grounds 1 and 3

29    It is convenient to deal with grounds 1 and 3 together. As refined during oral submissions, the essence of the appellant’s case in respect of grounds 1 and 3 was that the Tribunal failed to:

(1)    engage actively with the appellant’s claim; or

(2)    take into account evidence, particularly that of Dr Way, to the effect,

that Ms Mafi’s physical condition would worsen and her mental state would deteriorate significantly if the appellant returned to India (see at [19] above).

30    If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

31    A statute might require a decision-maker to consider a matter by:

(1)    expressly stating that the decision-maker must consider the matter; or

(2)    necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

32    Carrascalao concerned the cancellation by the Minister of the visas of Mr Carrascalao and Mr Taulahi under s 501(3) of the Migration Act 1958 (Cth). Mr Carrascalao and Mr Taulahi sought judicial review of those decisions in the Federal Court. The matter was heard, in this Court’s original jurisdiction, by three Justices.

33    The Minister did not contest that he was under a general legal obligation to consider the merits of cases before cancelling visas under s 501(3). The Full Court stated at [46]:

… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).

34    The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

    a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

    a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

    a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

35    However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):

The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).

36    The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

37    In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

38    In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1], Gleeson CJ made the following observations about the recasting or narrowing of focus that often occurs in an applicant’s case as it proceeds through the various stages of decision-making constituting the system of judicial review of administrative action. While these observations concerned a refugee visa application, we consider they apply with equal force to a visa application of the present kind:

The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister’s delegate and the Refugee Review Tribunal (“the Tribunal”)) and that the Tribunal’s decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process ...

39    The appellant contended that the Tribunal merely recited the appellant’s claim that Ms Mafi’s depression and anxiety and diabetes would worsen if the appellant were to return to India, and did not actively engage with it. The appellant submitted that T[46] to T[50] only address the logistical effects of his absence and not the aggravating consequences for Ms Mafi’s physical and mental health should the appellant return to India.

40    We do not accept this contention. The Tribunal summarised the effect of the medical evidence which addressed Ms Mafi’s condition. At T[21] it referred to the reports of each of the treating doctors. It summarised the report of Dr Way which contained the opinion that Ms Mafi’s mental state would deteriorate if the appellant were to return to India. The Tribunal did not expressly refer to, or set out, the particular paragraph in that report which contained the opinion that Ms Mafi’s “mental state” would “deteriorate significantly”. However, it undoubtedly considered Dr Way’s report (having referred to and quoted from it) and from that consideration it is apparent that it well understood the appellant’s claim that Ms Mafi’s condition would deteriorate if he were to return to India. The Tribunal stated at T[59] and T[60]:

59.    The applicant … claims that a temporary absence will impact adversely on their relationship, the sponsor’s depression and anxiety will worsen and that the sponsor will be affected negatively physically, emotionally and economically and that the sponsor is unable to look after herself on her own as a result of her medical conditions and medications.

60.    The Tribunal has considered these reasons, separately and cumulatively, but is not persuaded they provide compelling reasons for not applying the Schedule 3 criteria in this case.

41    As mentioned, also at T[21], the Tribunal referred to the evidence of the endocrinologist (Dr Kok) and the general practitioner (Dr Jirjis) and noted that this included evidence that the appellant accompanied Ms Mafi to medical appointments, acted as her carer, supervised her medications, and assisted her to manage her diabetes by regularly checking her blood glucose levels and ensuring she took her insulin injections. Dr Kok indicated that Ms Mafi’s medical condition would deteriorate if the appellant were to leave. The basis for that conclusion was tied to the assistance he provided to Ms Mafi in ensuring she took her medication and checking her blood glucose levels. The Tribunal referred to, understood and dealt with, all of this.

42    At T[24], referring to the statement of Ms Mafi regarding the support and assistance provided by the appellant, the Tribunal stated:

The applicant also submitted a statement from the sponsor indicating that she will struggle to cope without the applicant. It refers to the medical records provided and the information contained in them. She also talks about her past and that the sponsor helps her by ensuring that she does not maintain her bad habits of eating junk food and being lazy, and he reminds her about taking her medication, ensures she attends her doctor’s appointments, and encourages her to take a short daily walk. She also refers to the sense of safety and security she feels through their relationship. The sponsor also refers to the fact that she is unable to work because of her medical conditions and that her husband supports her financially. She states that she has willingly taken on all household responsibilities including cooking and cleaning. She refers to the verbal, emotional, financial and physical support provided by the applicant and his invaluable love, compassion and understanding. She states that she hopes to be a mother one day.

43    The Tribunal further noted the claims made regarding support provided by the appellant in relation to Ms Mafi’s health in the course of the hearing. At T[26]-[29], the Tribunal stated:

26.    At hearing, the applicant talked about the sponsor’s medical conditions will [sic] and the difficulty she had managing them while she was living in shared accommodation before they married. He explained that while she can take her medication herself she often forgets. He referred to her diagnosis of depression and anxiety. He explained that she is stressed because of the lack of certainty about his visa.

27.     The applicant stated that the sponsor also thinks a lot about her family. She is close to one of her brothers, who also has diabetes and requires dialysis. Because the sponsor suffers from diabetes she is very concerned about his condition and whether she will similarly deteriorate.

28.    In relation to the sponsor’s mental health issues, he stated that they were diagnosed in 2017. Although she had seen a psychologist before because of problems that were occurring in her family, more recently she was referred to a psychiatrist.

29.     The Tribunal heard that the applicant drives the sponsor to and attends all her medical appointments with her. He also talks about her conditions with the doctors and ensures that her medication regime is and here to [sic].

44    At T[47] and T[49], the Tribunal took account of benefits to Ms Mafi from support provided by the appellant (extracted at [22] above).

45    The Tribunal expressly noted the appellant’s claim that a “major upheaval” could affect Ms Mafi’s health and serious medical conditions: at T[23] (extracted at [21] above). The transcript shows the Tribunal raised this claim with the appellant at the hearing. The Member acknowledged that Ms Mafi “would be very distressed” about the appellant leaving Australia and that it “wouldn’t be easy for her”, but suggested “she could manage”. In response, the appellant stated, in effect, that it is “very hard” for Ms Mafi, that his absence would “put too much depression on her”, and that her condition would get “worse”. This appears to be the source of the reference at T[59] to the appellant’s claim that Ms Mafi’s condition would get worse. As is mentioned above (at [15]), it does not appear clearly from the two statements of Ms Mafi or from any written claims made by the appellant.

46    The Tribunal engaged actively with the material before it, and to the extent it was put, with the claim that Ms Mafi’s condition would deteriorate if the appellant were to return to India. It is true that it did not in its reasons expressly refer to the particular part of the evidence which formed the focus of submissions on appeal, namely the paragraph in the report of Dr Way which stated his opinion that Ms Mafi’s mental state would “deteriorate significantly” (extracted at [19] above). However, we do not consider the Tribunal’s failure to mention this paragraph establishes that it did not consider and engage with the whole of that report, including that opinion. The better reading of the reasons at T[59] and T[60] is that the Tribunal accepted that Ms Mafi’s condition would deteriorate in certain respects, but concluded that this was not sufficient for it to be satisfied that there were “compelling reasons” for not applying the Sch 3 criteria. That was a matter for the Tribunal. Leaving aside the fact that the reasons do not mention the particular part of the report of Dr Way containing the opinion mentioned, the reasons otherwise reveal a conscientious and thorough examination of the evidence and issues.

47    Whilst it might now, with focussed attention being given to the particular issue said to have been ignored, be seen to be preferable for the Tribunal to have dealt more thoroughly with the question of whether Ms Mafi’s mental state would deteriorate significantly if the appellant were to leave, the prominence given to this particular issue by the Tribunal is not surprising given the way in which the appellant identified the claims and the manner in which the matter was dealt with before and during the hearing. The Tribunal addressed more thoroughly in its reasons the claims as expressly articulated and addressed those of less prominence in a shorter way. That was appropriate. It cannot be said that it did not conduct the “review” which it was required by statute to undertake.

48    The appellant contended that the decision of Siopis J in Karan v Minister for Immigration and Border Protection [2017] FCA 872 was “indistinguishable” from the present case. At the “forefront” of the appellant’s claims in that case, was the claim that the appellant’s wife had been left with severe mental health issues and that, if he was deported, her condition would deteriorate: at [29] and [30]. The claim was supported by expert opinion evidence. His Honour concluded that the delegate had not appreciated the nature of the case being made “because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from ‘a loved one’”: at [31]. The present case is distinguishable. First, it is clear from T[59] that the Tribunal understood the claim being made, unlike the delegate in Karan. The Tribunal set out the claim at T[59] in the same terms as pleaded in ground 1 of this appeal. Secondly, the claim cannot be said to have been at the “forefront” of the appellant’s claims in this case. The appellant’s claims were principally focussed on the assistance which the appellant would provide to Ms Mafi in the management of her various medical conditions, the love and support which he would provide and the importance of being there for each other in the early years of their marriage. Each of these matters was dealt with. The assistance which the appellant provided in the management of Ms Mafi’s condition was related to whether her condition would worsen. The Tribunal recognised this claim at T[59] and found that Ms Mafi would adequately manage: at T[47]

49    The appellant also placed considerable reliance on the decision of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. In that case, the applicant’s sister, who had been undergoing years of psychiatric treatment and had attempted suicide on two occasions, had experienced horrific childhood mistreatments and deprivations such that whatever family ties she could salvage were uniquely important to her and beneficial to her mental condition. This was relevant to whether the applicant, her brother, was a “special need relative” and whether there were “compassionate” circumstances “to the effect that refusal to grant [an] entry permit [to the brother] would have caused extreme hardship or irreparable prejudice to an Australian citizen”.

50    Burchett J described the sister’s history as “so sad and extraordinary as to evoke recollections of the bizarre public humiliation in which the little girl Pearl grew up in the famous American novel, ‘The Scarlet Letter’” (at 518). His Honour continued:

It was described by the Minister’s counsel at the hearing before me as “horrendous”, and in the medical records of Wollongong Hospital as “horrific”. Unfortunately, coloured words of that kind become bleached of their meaning, unless the facts they describe are exposed in a little detail. Neither “horrendous” nor “horrific” is suggested by the bland summary appearing in the reasons for the decision. But a reading of the original material would leave most persons of normal understanding and humanity in a state not very far from tears.

51    His Honour summarised that history. The only shred of kindness which appears to have been afforded the sister in her childhood had come from her brother, the applicant. The manner in which the decision-maker dealt with the lay and expert evidence, which it is not necessary to set out in detail, can appropriately be described as utterly bizarre whether viewed from the perspective of common experience or from the detailed and reasoned expert evidence pointing to the importance to the sister’s wellbeing of contact with her brother. Burchett J ultimately concluded at 528:

I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan’s opinion, and nowhere acknowledges that it is really departing from the doctor’s views, “the decision-maker doesn’t accept it [ie Dr Kaplan’s opinion] to the extent that Dr Kaplan states, because if he had he’d have come to a different opinion [ie he would have reached a conclusion in favour of the applicant]”. In other words, the decision was admittedly unreasonable, on the basis of the doctor’s report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.

52    Of course, that passage must now be read in light of more recent authority with respect to unreasonableness, which is addressed below. One particular aspect of Fuduche upon which the appellant relied was his Honour’s observation at 522:

Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision­maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430):

Although s 120(3) entrusts the determination . . . to the decision­maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner ...

53    The appellant submitted that the failure to give ‘proper, genuine and realistic consideration’ to the claim was emphasised by the failure to refer to the evidence of the three treating medical practitioners concerning their opinion that Ms Mafi’s condition would deteriorate in the absence of the appellant. It was submitted not to be rational to ignore their evidence on this issue.

54    As noted above, at T[21], the Tribunal referred to the evidence of each of the three treating medical practitioners, the psychiatrist (Dr Way), the endocrinologist (Dr Kok) and the general practitioner (Dr Jirjis). The Tribunal expressly recognised Ms Mafi’s many conditions and the assistance provided to her by the appellant. The Tribunal, at T[24], expressly dealt with the lay evidence to the effect that the appellant helped Ms Mafi with her various problems and provided invaluable love, compassion and understanding. The Tribunal had regard to the “evidence that the [appellant] has been a great support to [Ms Mafi] and boosted her morale and confidence” at T[55]. A fair reading of the Tribunal’s reasons reveal it accepted those matters.

55    The Tribunal concluded that Ms Mafi would still be able to attend her various medical appointments without the appellant, including availing herself of psychiatric treatment: T[47] and T[49].

56    The Tribunal understood the claim that the appellant’s absence would cause Ms Mafi’s condition to worsen: T[59]. The Tribunal certainly did not reject the claim that Ms Mafi’s condition would worsen. No such conclusion is expressed on the part of the Tribunal and, read in accordance with the principles in Wu Shan Liang, it appears to have accepted that her condition would worsen. Whilst it did not say so in express terms, the Tribunal implicitly accepted that there would be a negative impact caused by the appellant’s absence, although she would still be able to attend her appointments: T[59] and [60]. It concluded this did not provide a sufficiently “compelling reason” in the circumstances: T[60].

57    Perhaps a different conclusion might have been reached on the merits by a different decision-maker. However, the Tribunal discharged its function and, in so doing and contrary to the appellant’s written submission, it did not act irrationally. For jurisdictional error to be established on the ground the decision was irrational, it must be a decision to which no rational or logical decision-maker could have arrived on the same evidence; the ground cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ).

58    On the basis that the Tribunal did not fail to consider, or actively engage with, the claims made and the evidence in support of them, grounds 1 and 3 cannot succeed.

Ground 2

59    Ground 2 was directed to the Tribunal’s reasoning at T[47]:

In light of the fact that most of her medical conditions were diagnosed prior to the sponsor meeting and marrying the applicant, the Tribunal considers that she can manage them on her own, even though she may prefer to have his support and benefits from it.

60    The appellant contended that no reasonable decision-maker could have reached this conclusion in light of the evidence that Ms Mafi did not take her diabetes medication prior to her relationship with the appellant, and that her diabetes had improved with the appellant’s help. It was submitted that, in those circumstances, the Tribunal’s conclusion that Ms Mafi could manage on her own because she had managed before meeting the appellant was so unreasonable that no reasonable decision-maker could reach that conclusion.

61    The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

(2)    “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth  JJ).

62    The Tribunal had regard to the support provided by the appellant and the improvement in Ms Mafi’s condition over the course of their relationship. At T[47], the Tribunal accepted that Ms Mafi took pain relief and other medication for her medical conditions, including her diabetes, and that the appellant had supported her in attending medical appointments. The Tribunal referred to medical reports which stated the appellant was her carer and supervised her medications.

63    In particular, the Tribunal referred to Dr Kok’s evidence that the appellant had been “looking after” Ms Mafi’s diabetes since March 2014: at T[46]. Dr Kok’s evidence was that the appellant offered “very important support” for Ms Mafi to help manage her diabetes, and that since 2015 her condition had been improving with the appellant’s help. Dr Kok also stated that, as at the date of his letter on 7 November 2017, Ms Mafi’s diabetes remained “very poorly controlled”. That was consistent with the evidence of Ms Mafi, who stated in her written submission to the Tribunal that “I have and continue to live with clinical depression, anxieties disorder/generalised anxiety, diabetes (very poorly controlled), arthritis and lumbar disc prolapse” (emphasis added).

64    At T[26], the Tribunal summarised the appellant’s evidence given orally at the hearing that Ms Mafi had difficulties managing her medical conditions while living in shared accommodation before they married, and that, although she was capable of taking her medication herself, she often forgets.

65    The Tribunal also had regard to Ms Mafi’s apparent mobility and the fact that she had managed to travel overseas on a number of occasions, including independently in 2015: at T[48]. It noted there was no evidence that Ms Mafi was unable to attend her medical appointments without the appellant. It also found that she was able to take her medications herself: at T[47]. This was consistent with the evidence which Ms Mafi gave during the hearing, including to the effect that she sometimes forgot to take her medication, but could set a reminder.

66    The Tribunal concluded that, while Ms Mafi may prefer to have, and benefit from, the appellant’s support, she was nevertheless able to continue to access medical treatment and manage her conditions on her own. This conclusion was not based solely on the fact that some of Ms Mafi’s medical conditions pre-dated her relationship with the appellant. The Tribunal also had regard to the factors mentioned at [62] to [65] above, including her apparent mobility and ability to obtain ongoing treatment and take medication herself. The conclusion was not legally unreasonable.

CONCLUSION

67    The appeal must be dismissed.

Associate:

Dated:    29 January 2019