FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2020] FCAFC 7

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal to be taxed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    I have had the advantage of reading in draft the reasons for judgment of my brother, Derrington J.

2    I agree, generally, with his Honour’s reasons as to why this appeal must be dismissed, although, with respect, I am inclined to judge the submissions made by the appellant’s counsel, Mr Boccabella, somewhat less harshly.

3    I rather think that the source of the appellant’s grievance with the Tribunal’s decision and its subsequent fate on judicial review, as well as the inspiration for the submissions made on his behalf on the appeal, have their origin in the Explanatory Statement to the Migration Regulations (Amendment) 1996 (Cth). Derrington J has set out the pertinent excerpt from that statement in his judgment.

4    That thought is based upon the emphasis given by the appellant’s counsel to that statement in his submissions, as well as upon the Tribunal’s finding (Reasons, [37]) that a motivation for the appellant and his wife in seeking to have a child was so as to provide “compelling circumstances”. In that statement, the existence of one or more Australian-citizen children from the relationship between a visa applicant and the sponsor is one of two “strongly compassionate” examples cited which it is stated might give rise to “compelling circumstances”. The other, a relationship of at least two years’ duration, was not applicable to the appellant and his sponsor wife at the time of the hearing before the Tribunal.

5    To adopt a description favoured by Professor Aronson in his article, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1, 5, that the existence of that Australian-citizen child might give rise to satisfaction that there existed “compelling circumstances” could be regarded as a “reasonable assumption” in light of the example in the Explanatory Statement.

6    It was against this background that the appellant sought to demonstrate, in the original jurisdiction and, in turn, on appeal, that jurisdictional error was to be found in the Tribunal’s decision. Having regard to the Tribunal’s reasons, the appellant’s difficulty was in translating the disappointment of this assumption into jurisdictional error.

7    The adjective “compelling” is an ordinary English word, inherently fact specific in application in its qualification of “circumstances”. The appellant did not seek to, and as Derrington J has explained by reference to the Tribunal’s articulated understanding of the meaning of the term “compelling circumstances”, could not in any event, demonstrate any error of law as to the meaning of the term “compelling circumstances”. Faced with this, the appellant sought to elevate the example taken from the Explanatory Statement into a relevant consideration. However, neither expressly nor by necessary implication does the regulation make the existence of an Australian-citizen child relevant in the sense explained by Sir Anthony Mason in Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-40. The Full Court so concluded in Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (Kaur). There is no reason to doubt the correctness of that conclusion, much less to regard it as clearly wrong. Indeed, that is to understate matters, because I respectfully regard the conclusion as clearly right.

8    A statement in an explanatory statement in respect of subordinate legislation cannot be a substitute or proxy for its text any more than an explanatory memorandum can be in relation to the text of a statute. One must always give paramountcy to the text, but explanatory materials do form part of the context in which such text falls to be construed. So they can provide assistance by way of confirming a meaning apparent from the text or in giving guidance as to a meaning where there is ambiguity. Giving full voice to this principle, there is nothing in the text of the regulation which makes it necessary, in order to give it meaning, to construe it as requiring that the existence of an Australian citizen child must be given primacy, much less dictate satisfaction that compelling circumstances exist.

9    Recognising this, or at least so it seemed to me, the appellant’s counsel sought to bolster the existence of a requirement to consider and give primacy to the interests of the appellant’s child by reference to Australia’s subscription to the Convention on the Rights of the Child [1991] ATS 4. Were there some ambiguity or obscurity as to the meaning of “compelling circumstances”, a meaning consistent with an international obligation assumed by Australia would be the preferable meaning to adopt: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 287 per Mason CJ and Deane J; NAQF v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 130 FCR 456, at [67] – [72]. But in this instance there is neither ambiguity nor obscurity of meaning.

10    This also, I rather thought, was recognised by the appellant’s counsel, who came to characterise the outcome as unfair or unreasonable in light of the example in the statement and the existence of an Australian-citizen child.

11    I am prepared to accept that, in the absence of an explanation given in advance by or on behalf of the Minister, or in his place by the Tribunal, a visa applicant is entitled reasonably to assume that a regulation will be administered in accordance with a statement given in a related explanatory statement. Good public administration demands no less. However, as Gleeson CJ observed in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, at [37], “Fairness is not an abstract concept.”

12    In this instance, as its reasons demonstrate, the Tribunal expressly took into account the existence of the appellant’s Australian-citizen child. It concluded, as it was entitled to do, that, in this instance, the appellant and his wife had chosen to seek to have a child knowing that he might have to leave Australia in order to make a valid application for a permanent resident visa, and were motivated by a desire to bolster his chances of securing waiver of a condition which otherwise governed the visa application under then present consideration. The possibility that such a view might be taken was put to the appellant in the course of his evidence before the Tribunal. What to make of the answers he gave was for the Tribunal in deciding whether, in the overall circumstances, it was satisfied that there were compelling circumstances.

13    The Tribunal could have accepted the appellant’s explanation that his wife was of an age that motivated her no longer to postpone seeking to fall pregnant but it was not obliged so to do. It would have been illogical or irrational for the Tribunal to have concluded that the child was conceived so as to bolster the appellant’s case at the Tribunal hearing, because the appellant and his wife could not possibly have known when conception would occur prior to whatever hearing date was fixed. But, on a fair reading of its reasons, this is not how the Tribunal approached the subject of the existence of the child. It was the embarking on a course of conduct which might result in the birth of a child before certainty as to Australian resident status for the appellant was determined and a conclusion as to the motivation for that conduct which was influential. Viewed in light of the conclusions on the facts reached by the Tribunal, there was no practical unfairness in the absence of satisfaction by the Tribunal that the existence of the child did not give rise to “compelling circumstances”. This, in essence, was the conclusion reached by the learned primary judge.

14    In Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd [1985] 2 Qd R 88, at 89, Connolly J declined to set aside as frivolous a ground in a demurrer founded on a proposition which was contrary to a prior judgment of the High Court of Australia. His Honour did so on the basis that that court regarded itself as able, for cause, to depart from a prior judgment, that the language of the statute was obscure and that it was not for him in the exercise of original jurisdiction to presume whether the High Court might be persuaded to revisit its earlier conclusions. That Kaur was directly against some of the appellant’s grounds of appeal did not, ipso facto, make them frivolous. Even so, it may, with respect, be that a more discriminating choice might have been made by counsel for the appellant as to the basis upon which to seek to challenge an apparent departure by the Tribunal from the example cited in the Explanatory Statement. However, the role of such a statement in relation to public administration was not without importance in public law. Further, it is in the nature of the exercise of judicial power that an outcome may sometimes have in result a clarity that it does not have in prospect.

Associate:    

Dated:    7 February 2020

REASONS FOR JUDGMENT

REEVES J:

15    I have had the advantage of reading in draft form the reasons for judgment of Logan J and Derrington J. I agree generally with the reasons of Derrington J and the orders his Honour has proposed.

Associate:    

Dated:    7 February 2020

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

16    This is an appeal from a decision of the Federal Circuit Court (FCC) of 7 November 2018 which dismissed an application to review a decision of the Administrative Appeals Tribunal (the Tribunal) given on 3 November 2017 which, itself, had affirmed a decision of the Minister’s delegate not to grant the applicant a Partner (Temporary) (Class UK) visa (“partner visa”).

17    Whilst the precise nature of the appellant’s ambiguous grounds of appeal were, at times, somewhat difficult to discern, ultimately a few major points emerged. Nevertheless, for the reasons which follow, the appeal cannot succeed. The authorities establish that the Tribunal was not required to take into account the interests of the appellant’s child as a primary consideration, and the appellant was unable to distinguish those authorities from the present facts. Further, the Tribunal made no error in finding that the appellant and his partner, the sponsor, had successfully attempted to have a child for the purposes of bolstering the appellant’s prospects of obtaining the visa. Even if an error had occurred, it was not “material” to the Tribunal’s decision, in the sense that it did not deprive him of a possibility of a different outcome.

Background

18    The appellant arrived in Australia on 8 May 2009 on a Student (Subclass 572) visa. That visa expired on 1 September 2011.

19    On 22 July 2011, he made an application for a Skilled (Provisional) (Subclass 485) (Temporary Graduate) visa. This application was refused and he appealed that decision to the Tribunal on 19 February 2015. On 12 January 2016, the Tribunal affirmed the delegate’s decision.

20    The appellant then applied for a protection visa on 12 April 2013. This application was also refused and he then sought review of that decision by the Refugee Review Tribunal on 10 March 2014. That tribunal affirmed the delegate’s decision to refuse the protection visa on 22 September 2014.

21    On 28 October 2014, the appellant sought ministerial intervention in relation to the refusal of the protection visa, but, on 9 March 2015, this request received an outcome of “inappropriate to consider”. He again applied for ministerial intervention on 4 February 2016, but again, on 11 April 2016, this request was also found to be “inappropriate to consider”.

22    The appellant’s last substantive visa, being his student visa, expired on 1 September 2011. His application for the current visa was not made within 28 days of the “relevant day”, being the date of expiration, such that he does not satisfy criterion 3001 of the Migration Regulations 1994 (Cth) (the Regulations).

23    The appellant applied for the partner visa on 23 June 2016 on the basis of his relationship with the sponsor. At that time, the Class UK visa contained only one subclass, being Subclass 820 (Partner (Temporary)).

24    On 20 October 2016, the delegate refused to grant the visa because the appellant did not satisfy cl 820.211(2)(d), as he had not been the holder of a substantive visa when he lodged his application (as required by the Schedule 3 criteria in the Regulations), and the delegate determined that there were no “compelling reasons” to waive that requirement.

25    On 4 November 2016, the appellant sought review of the decision from the Tribunal. A hearing was held on 27 October 2017, at which the appellant attended and he and his sponsor both gave evidence. He was assisted at the hearing by a registered migration agent.

The Tribunal’s reasons

26    The Tribunal correctly identified that, save in relation to exceptions which are not relevant in the present case, an applicant for a partner visa is required to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d)(ii).

27    It identified that the expression “compelling reasons” is not defined but, following the decisions in MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510 at [10] and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24], considered that the reasons advanced “should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”. It was not disputed that this test was correctly stated by the Tribunal.

28    The circumstances advanced by the applicant were that he was born into a different caste to his wife and this would be a problem for them were they have to return to India; that his parents are extremely unhappy about his marriage to his partner and he will be subjected to mental and emotional abuse and stress if he were required to return; that his partner will be forced to marry another person if she is required to return; and that they will face trouble from other relatives if they were required to return. Other claims were advanced although they are not now relevant. More importantly, the appellant further asserted that, by the time of the hearing before the Tribunal, his partner had given birth to a child of their relationship. The sponsor claimed that she relied upon the appellant for emotional support, financial support for the child and companionship.

29    Centrally relevant to the issues on appeal are the Tribunal’s finding as to the motivation of the appellant and his sponsor in having a child whilst he did not have a visa and his application for it was continuing, as well as any reliance on that finding in reaching its conclusion. In the context of the grounds of appeal the following paragraphs from the Tribunal’s reasons are important:

37.    The Tribunal asked the parties why, in the circumstances they were in at the time, of limited financial resources and uncertainty regarding the sponsor’s stay in Australia, they decided to have a child. The sponsor stated that at thirty years old (she was born in 1987) she was unwilling to use contraception for fear of being unable to conceive in the future. The applicant claimed that the pregnancy was not planned, but ‘just happened’. The Tribunal accepts that the parties want to have a family but is of the view that they were motivated to have a child when they did to provide a compelling reason to waive the Schedule 3 criteria. The Tribunal found both of the parties to be articulate and aware of visa conditions, including those of the Skilled Temporary and Protection visas that the applicant previously applied for. At hearing the applicant acknowledged, through his representative, that these applications were ill-founded.

38.    Because the parties chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application, the Tribunal does not accept that the birth of the parties’ Australian-citizen child is a compelling reason to waive the Schedule 3 criteria. The Tribunal acknowledges the concerns of the applicant that he does not want to be separated from his daughter during the first year or eighteen months of her life, the time it could take to process an application lodged from India. The Tribunal however is not satisfied, for the reasons set out above, that the sponsor could not accompany the applicant to India or spend time with the parties’ daughter in both India and Australia.

30    Later in its reasons the Tribunal observed that, whilst the appellant and the sponsor might each experience difficulties were they to be required to return to India, they chose to have a child in the full knowledge that the appellant might be required to lodge his application from overseas. It observed that the timing of the sponsor’s pregnancy was to bolster the visa application. Although the Tribunal accepted that the sponsor would suffer anxiety and stress as a result of the appellant being required to return to India, it concluded that, as the appellant and sponsor had chosen to have the child when they did, that did not amount to a compelling reason to waive the requirements of the Schedule 3 criteria.

31    In the result the Tribunal determined that there were no compelling reasons for not applying the Schedule 3 criteria, such that the application had to be refused.

Proceedings before the FCC

32    The appellant sought review of the Tribunal’s decision by the FCC. The application for review identified 12 broad and vague grounds of review. None were properly particularised. Whilst that may be understandable when an applicant for review is unrepresented, it is not otherwise.

33    It is possible to ascertain from the reasons of the primary judge that the focus of the hearing before him was that the Tribunal had committed a jurisdictional error as a result of failing to take into account the best interests of the child when it refused to waive the Schedule 3 criteria. The appellant argued that Article 3 of the United Nations Convention on the Rights of the Child (the Convention) required the Tribunal to make the best interests of the child a primary consideration in reaching its determination. Reliance was placed on the decision of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 285-288, which was to the effect that a visa applicant had a “legitimate expectation” that, in making a decision affecting a person’s rights and interests, the executive would conform to Australia’s obligations contained in international treaties into which it had entered even if they had not been ratified.

34    In relation to this major ground, the primary judge considered the decision of the Full Court in Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (Kaur), which had been relied upon by the Minister for the proposition that the determination of whether or not there were compelling reasons to waive the Schedule 3 criteria was a fact finding exercise which did not create an obligation to consider the best interests of a child. His Honour regarded this as binding in the circumstances and held that the Tribunal had not erred by failing to take the requirements of the Convention into account.

35    The primary judge also rejected the submission that the Tribunal had failed to give reasons for its determination. His Honour also found the Tribunal committed no error in finding that the appellant and the sponsor were aware of the requirements of the migration regulations and that the decision on their part to have a child at the time they did was so that they could provide a compelling reason to waive the Schedule 3 criteria. The primary judge further found there was evidence to support that finding and it could not be overturned on the review.

Appeal to this Court

36    The notice of appeal to this Court identified ten grounds of appeal, although the manner in which the appellant’s counsel addressed them in his written and oral submissions failed to substantially differentiate between them to any great degree. He often referred to the several submissions as being “blended”, “overlapped” or “coalesced”, but in reality it was merely a lack of clarity of thought or of any principled approach which rendered the submissions unusually shapeless. It is a singularly peculiar aspect of the conduct of migration matters in this Court that submissions are frequently advanced in a vague and ambiguous manner without any attempt to contextualise the relevant issue or to adopt a principled approach to the articulation of argument. This regularly occurs because the applicant or appellant is unrepresented, often not well educated, and English is not their primary language. In those circumstances no cause for complaint can arise. However, legal representatives who act in matters before this Court are bound by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), and that applies as much to those who appear in migration matters as it does to those appearing in other types of civil litigation.

The Legislation

37    The starting point of any analysis is s 65 of the Migration Act 1958 (Cth) (the Act), which provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

38    The structure of the Act requires that the Minister be satisfied of the requirements in sub-paragraph (a) and, relevantly for the purposes of this case, that the visa applicant meets the criteria for a partner visa which have been prescribed by the Act or the Regulations. They are specified in the provisions of Subclass 820 of the Regulations. Clause 820.211 identified the criteria which must be satisfied as at the time of application:

820.21 — Criteria to be satisfied at time of application

820.211

(1)     The applicant:

(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

(c)     the applicant is sponsored:

(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:

(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.

39    It was not in contention that the appellant was not the holder of a substantive visa when he made his application for a partner visa.

40    The requirement of Schedule 3 criterion 3001 was that the visa applicant had made the application within 28 days after the relevant date, being the date on which the applicant’s last substantive visa expired. It is not doubted that the appellant did not make his application within that time. As the initial requirements in cl 820.211(2)(d)(ii) are cumulative, there is no need to consider Schedule 3 criteria 3003 and 3004.

41    It followed that the requirements which were to be satisfied at the time of the application might only have been met if the Minister was “satisfied that there are compelling reasons for not applying those [Schedule 3] criteria”.

Consideration

Identification of the nature of the determination

42    As s 65 makes clear, the Minister’s obligation when considering an application for a visa is to ascertain whether he is satisfied the applicant meets the relevant criteria. If so satisfied he is obliged to grant the visa sought and, if not so satisfied, to refuse to grant it. The authority to ascertain his state of satisfaction is not discretionary but is circumscribed by the requirements inherent in it, as are discussed below.

43    The structure which the legislature has employed in s 65 is one where the jurisdictional fact, being the Minister’s satisfaction or non-satisfaction that the relevant criteria are met, dictates the exercise of power. It was articulated by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (SGLB) at 998 [37] in the following terms:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned (Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183]).

44    The nature of the subjective jurisdictional fact on which the power in s 65 is conditioned was discussed at length in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 (EHF17), as were the grounds on which the state of mind formed by the Minister might be examined by the Court. Those grounds were originally formulated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360 and have developed since. (See also CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203.)

45    Although not articulated in this manner by the appellant, the gravamen of his complaint is that the Minister’s state of mind — that the criteria for the grant of the partner visa were not satisfied — was vitiated by reason of an error or errors in its formation. Somewhat curiously, in this particular case, s 65 requires that one of the criteria which the Minister must be satisfied of is his satisfaction that there are compelling reasons for not applying the Schedule 3 criteria, although that does not require him to consider the issue twice. Again, the authority to determine whether the state of satisfaction is reached is not in the nature of a discretionary power.

Ground 1 — the Minister failed to take into account the best interests of the child

46    The appellant argued the primary judge misapplied the decision of the Full Court in Kaur and that the Tribunal, in ascertaining for the purposes of cl 820.211(2)(d)(ii) whether compelling reasons existed, failed to take into account that the interests of the rights of the child should be a primary consideration.

The decision in Kaur

47    In Kaur the visa applicant applied for a skilled migration visa and listed her occupation as a “hairdresser”. She produced a letter from a person purporting to be the owner of a hairdressing salon which stated that she had worked in that salon whilst a student here and that she had completed more than 900 hours of work. A delegate of the Minister refused to grant a visa on the basis that she was not satisfied the criteria had been met. More specifically it was determined that the letter was a bogus document and, therefore, the public interest criteria had not been met. On appeal it was submitted that the delegate had failed to take into account the best interests of the applicant’s children, in that they would suffer if they were required to return to India, and had also failed to make the best interests of the children a primary consideration as required by the Convention. It was said that the decision-maker was required to take into account what was best for the children’s health, social, linguistic and educational development and their identity, cultural and citizenship prospects.

48    The Full Court (Dowsett, Pagone and Burley JJ) rejected the submission. It was held that, in the absence of any express provision, un-enacted international treaty obligations were not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error. Their Honours relied upon, inter alia, Snedden v Minister for Justice (2014) 230 FCR 82 at [147]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Ex parte Lam) at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; and AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at [22]. Particular reference was made to the observations of French J in Le, where his Honour had reiterated that unless a particular international obligation is incorporated into domestic law it does not impose any condition on the exercise of power by the executive nor any substantive obligation to conform to that international obligation when exercising power. Whilst such obligations may well be considerations which a decision-maker can take into account when exercising a power, they are not mandatory considerations attracting judicial review for jurisdictional error: Ex parte Lam at [101]. His Honour said of the impact of the Convention:

The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law — Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.

49    The Full Court in Kaur also held that the mere fact that the Tribunal chose to consider the submissions made on behalf of the applicant in relation to the Convention did not render that matter a mandatory consideration. Further, assuming that consideration has been given to it, a misapplication of the principles of the Convention would not invalidate any subsequent decision.

50    It was also observed by the Full Court that the criteria under consideration each involved a two stage process, being, firstly, where the Minister was to ascertain whether there were “compelling circumstances that affect the interests of Australia” and, second, whether the discretion should be exercised in favour of the applicant to waive the requirements which otherwise exist. The appellant before the Court had conflated those two requirements, and it was observed that the first stage provides an onerous filter at which point there is no requirement to turn attention to the interests of the child.

51    It was further held by the Court that there was no obligation on the decision-maker to consider the Convention and no obligation to give notice to the applicant that it would not be considering it. The remaining ground dealt with in that case is not relevant for present purposes.

The appellant’s arguments with respect to Kaur

52    The appellant first argued that the decision in Kaur, which was to the effect the Convention had no application in the circumstances before that court, had “no role to play in a broad statutory decision making process”. Reliance was placed (or, more accurately, misplaced) on the observations of the plurality of the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 136 [34]:

Formation of the Minister’s state of satisfaction or of nonsatisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Migration Act and the Migration Regulations for the visa in question.

53    The relevance of that was not entirely clear, as it was merely the modern statement of the Avon Downs principles as informed by those authorities to which the plurality referred, being Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137]; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 30 [57]; and Wilkie v Commonwealth (2017) 263 CLR 487 at 537 [109].

54    From that initial misstep the appellant’s submissions became bizarre. As best as can be ascertained, the appellant argued that in Kaur the court found that there was no requirement to take into account the Convention at the stage where the Minister was to be satisfied or otherwise of the existence of compelling circumstances, although there may be some question about its applicability at the discretionary stage. So the submission went, there is no discretionary stage in cl 820.211(2)(d)(ii), but the “matrix of factors” had the result that the interests of the child had to be a primary consideration. Whereas the Full Court in Kaur was clear that any Convention obligation was not a mandatory consideration at the stage of the Minister reaching the required state of satisfaction, the appellant seemingly asserted that this was only because there was a later discretionary stage to the process in that case. Nothing of that nature falls from the decision of the Full Court and this attempt to distinguish Kaur fails.

55    In oral submissions it seemed to be argued on behalf of the appellant that the part of PIC4020, which had to be construed in Kaur, referred to “compelling circumstances that may affect Australia”, which differed from another part of the clause which referred to “compassionate or compelling circumstances that affect the interests of an Australian citizen”. It was said that the observations in Kaur can, therefore, have no relevance to the construction of cl 820.211(2)(d), which refers to “compelling reasons”. However, that distinction was meaningless and without a difference as far as the principle of construction was concerned. In Kaur, the Court distinguished between the exercise of discretion on the one hand and the formation of a state of mind on the other, to the extent to which that was relevant, and held that there was no obligation to take the Convention into account in relation to the latter. In the matter before this Court the issue is one of the formation of a state of mind and not the exercise of discretion and, that being so, the difference on which the appellant relied is somewhat difficult to identify.

56    The appellant subsequently submitted that the decision in Kaur was in error, although the foundation of that submission appeared to be no more than that he, or perhaps his counsel, disagreed with it. No intelligible basis for the submission that Kaur was wrongly decided was advanced and none can be detected.

57    The appellant then submitted that, despite the fact that the Convention had not been received into Australian domestic law, the decision in Teoh indicated that it still had work to do. Counsel for the appellant relied upon the following passage from the decision of Mason CJ and Deane J at 287:

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.

… If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

(footnote omitted)

58    The appellant placed reliance on these observations to submit that the Tribunal was required to construe cl 820.211 consistently with Australia’s international obligations, so that the requirements of the Convention became mandatory considerations. However, as Mr McGlade for the Minister accurately submitted, in order for that principle to apply, the language of the statutory provision must be ambiguous: Cheedy on behalf of the Yindjibarndi People v Western Australia [2010] FCA 690 at [102]-[107] per McKerracher J; Golovcenco v Centrelink [2003] FCA 527 at [18]-[19] per Cooper J; Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458 at [20]-[23] per Marshall J; Christoforidis v Cygnet Bulk Carriers SA (2002) 122 FCR 1 at 10 [32]-[34] per Tamberlin J; that being just a few of the authorities to which Mr McGlade referred. Here, there is no apparent ambiguity in cl 820.211(2)(d), and no attempt was made by the appellant’s Counsel to identify any. It follows that the comments in Teoh are not applicable in the present circumstances.

59    It is not easy to identify the foundation of the appellant’s submission that, in reaching the relevant state of satisfaction, the Minister is bound to take into account the interests of the child as a primary consideration. As the Minister’s Counsel submitted, the appellant at this point eschewed reliance on the principles derived from the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), and what was relied upon was that the so-called “matrix of factors” which went to make up the term “compelling reasons”, which ipso facto had the consequence the decision-maker was obliged to take the matter into consideration. The appellant relied on the terms of the Explanatory Statement to the Migration Regulations (Amendment) 1996 (No 75), which introduced a new cl 820.211(2)(d) into the regulations. In part it provided:

Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

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

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

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

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

60    In relation to this, at paragraph 29 of the appellant’s written submissions it was stated:

29. The Explanatory Statement is also helpful to applying s15AA of the Acts Interpretation Act (Cth), that ‘the interpretation that would best achieve the purpose or object’ of the provision is to be preferred. The context is also that the subclass 820 visa is a spouse visa and therefore a visa about families. Blending the above factors, Australia’s signing of the Convention, the exhortation in the Explanatory Memorandum and that the subclass 820 visa is a family visa, leads to the conclusion that a proper construction of the term ‘compelling circumstances’ where there is an Australian citizen child affected by the non-exercise of the waiver leads to a conclusion that the matrix of factors to make up that term, includes a ‘reason’ that ‘the best interests of the children [are] a primary consideration’. Of course in any particular case as indicated by Mason CJ and Deane J, other factors may outweigh the best interests of a child.

61    It should be observed that the Subclass 820 visa is about partners and not families. The heading to the section in the regulations, “Subclass 820 – Partner”, gives a hint that such is the case. It must necessarily be that the relationships of partners will frequently involve children but that is not always so. In any event, the submission is devoid of substance, and is merely an assertion that the “circumstances” create some statutory construction path to the conclusion that the interests of the child should not only be a primary consideration, but also, somehow, a mandatory consideration. Just how that conclusion is reached remains elusive. Indeed, the Explanatory Statement, to the extent it assists, tends to suggest that the Convention is not a mandatory requirement. Firstly, the reference to “greater flexibility” indicates a degree of decisional freedom such that the matters which might be taken into account in forming the state of mind are unconfined, which is coordinate with the unconfined manner in which the task is imposed on the decision-maker. There is nothing in the statement which suggests the existence of some mandatory considerations. Second, the terms of the statement indicate that the circumstances may justify a waiver if hardship is involved, which again suggests an amount of decisional freedom. It should be observed that the language of “waiver” employed in the statement is incongruous with the terms of the clause. There is no discretionary power to waive any requirements. The clause simply requires that an assessment be made as to the existence of compelling reasons for not applying the Schedule 3 criteria. If the decision-maker is satisfied there are, the exception will apply. If the required state of satisfaction is not reached, the requirement of cl 820.221(2)(d)(ii) will not have been met.

62    The appellant’s submissions obfuscated how the interests of a child were to be a primary consideration in reaching the specified state of satisfaction. The insurmountable hurdle for the appellant is that it is now well accepted that un-enacted treaty obligations do not impose obligations on decision-makers to take into account international obligations arising thereunder. This was the considered conclusion in Kaur which concerned the formation of a state of mind on which a power was conditioned. It did not concern the exercise of a discretion. In SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29], Griffith J referred to the existence of a long line of authority to the effect that the principle in Teoh has no application to the exercise of a non-discretionary power. Similarly, here the process engaged in by the Tribunal was the formation of a state of satisfaction, a task not involving an exercise of discretion.

63    The appellant has not demonstrated that the decision in Kaur was in error. Although the appellant submitted the decision was wrong, there was a paucity of explanation as to why that was so and nothing was advanced to support it, let alone to demonstrate the decision was “plainly wrong”.

64    As Mr McGlade for the Minister accurately submitted, the appellant’s submissions involved an attempt to read words into cl 820.211(2)(d). Whilst that may be permissible if certain conditions exist, none were identified in the present matter. In this respect the observations of Flick J in JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 at 310-311 [52] are apposite:

Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth), s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Federal Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim (2001) 112 FCR 589 at [7] per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re News Corporation Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.

65    Despite the effect of the appellant’s submissions being an attempt to introduce words into the regulation, no submission was advanced which might justify that course in the present case.

66    The result is that this first ground fails. There was no obligation on the Tribunal to take into account as a mandatory consideration, in ascertaining whether “compelling reasons” existed, the interests of the appellant’s child — let alone make the interests of that child a primary consideration.

Grounds 2, 3, 4, 5 and 8

67    It is appropriate to consider these grounds together as they appear to raise a similar issue (even if it is also somewhat obscure). In the appellant’s written submissions, it was asserted that the facts of this case have the consequence that the best interests of this child are rendered a mandatory consideration. Reference was made to that part of Mason J’s reasons in Peko-Wallsend at 39-40, where his Honour identified that mandatory considerations could be identified by “implication from the subject-matter, scope and purpose of the Act”. The circumstances which were said to have the result that the best interests of the child were a “relevant consideration” were identified in the appellant’s written submissions as follows:

34.     The factors that would make the best interests of the Australian citizen child a relevant consideration as regards assessing the ‘compelling reasons’ are :

(a)     A valid marriage between the appellant as father of the child and the mother of the child;

(b)     The visa is a visa which enables a husband and wife to remain in Australia lawfully;

(c)     It follows that as a natural consequence of a union between husband and wife is that they may have offspring together;

(d)     When there is an Australian citizen child to a husband being sponsored by the wife, the subject matter, scope and purpose of the waiver provision are to reduce hardship to the family as was demonstrated by the Explanatory Statement referred to above.

(e)     Hence what is in the best interests of the Australian citizen child is a relevant consideration.

(f)     Those bests (sic) interests ought to have been identified by the tribunal.

(g)     It is axiomatically in the best interests of a child of tender years for her to remain secure, emotionally and financially in Australia with both her parents.

68    This submission is misconceived. The application of the principle in Peko-Wallsend does not involve an idiosyncratic consideration of the circumstances of a particular case. The jurisdictional error of a failure to take into account a relevant consideration is concerned with questions of legality in the exercise of power, being whether the repository of power has exercised it in accordance with the requirements of the statute. In that way, whether the implication referred to by Mason J arises involves a consideration of the statute and not the particular factual issues which arise in the particular case: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348 [73]-[74] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed; and Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195]; see also Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 (Fastbet (No 5)) at [50], [93].

69    Further, the appellant’s submission as to what were relevant circumstances proceeded by attempting to apply the Peko-Wallsend test for ascertaining what are mandatory considerations in the exercise of a discretionary power to the question of what matters the repository of a power must consider in ascertaining whether they have a required state of mind. By accident rather than design, that may not have been wholly incorrect: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Fastbet (No 5) at [53] and [123].

70    In any event, for the reasons given the submission fails. The appellant failed to identify anything in the nature, scope and subject-matter of cl 280.211 or any other part of the regulations or of the Act which implicitly required the decision-maker to take into account the requirements of the Convention.

Grounds 6, 7 and 9

71    Grounds 6, 7 and 9 of the appeal concerned the determination by the Tribunal that the appellant and the sponsor were motivated to have a child for the purposes of providing compelling reasons for the waiver of the Schedule 3 criteria. The relevant passages of the Tribunal’s reasons (being paragraphs [37] and [38]) are set out above, although the particular sentence on which the appellant focused was:

The Tribunal accepts that the parties want to have a family but is of the view that they were motivated to have a child when they did to provide a compelling reason to waive the Schedule 3 criteria.

72    The appellant’s complaints around this factual finding were:

(a)    That there were no admissions that he and he sponsor were so motivated.

(b)    That the conclusion is speculative.

(c)    These submissions:

40.     Yet the wife gave a realistic account of becoming pregnant, she would not be first woman (sic.) to be motivated by the biological clock ticking past the age of 30 and won’t be last. She was an Australian permanent resident. Australian law does not create any obstacle to an Australian permanent resident bearing a child.

41.     It is a long draw to say that a 30 year old woman became pregnant with her first child just for the sake of a visa for her husband.

(d)    That, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), it was held that a decision is unreasonable if it “lacks an evident and intelligible justification” and not merely if it is unreasonable in the Wednesbury sense. It was further held that a decision will be unreasonable in the following circumstances:

72.    …Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

(e)    That the decision that there were no compelling reasons was disproportionate and there was a failure to take into account the interests of the child.

73    The generic, vague and scatter-gun approach in the written submissions was supplemented with oral submissions of a similar description. Whilst reference was made to the decision in Li, that decision concerned the exercise of a discretionary power whether to adjourn proceedings in the Tribunal pending the production of additional information. Here, the issue is one of the satisfaction of the condition on which the power of the Minister in s 65 is exercised. The Minister must be satisfied that the relevant criteria are met, one of which is that in cl 820.211(2)(d) and, particularly, sub-paragraph (ii). Hence, the question concerns whether the relevant state of mind has been achieved, namely satisfaction of the existence of “compelling reasons” for not applying the Schedule 3 criteria. In the consideration of whether the state of mind allegedly reached by the Tribunal existed, the principles in Li concerning illogicality or irrationality in the exercise of a discretionary power are irrelevant. This was made clear by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at 624 [39], where their Honours said:

Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

(footnote omitted)

74    See also McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1176 [59]-[60] and, prior to that, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 654-655 [138]-[139]; see also EHF17 at [37]-[38].

75    Reliance on Li in this case is misconceived.

76    Although the real nature of the appellant’s complaint was somewhat obscure, during the hearing counsel submitted that the finding that the parties chose to have a child was illogical. This, so the submission went, was because there was no evidence that the appellant and the sponsor cynically planned the pregnancy, and there was no express rejection of the sponsor’s evidence that she chose to attempt to fall pregnant because she was concerned that she had reached the age of 30 and may not have the chance to have a child in the future. It was submitted that the finding was made on a “gut feeling or hunch” rather than on any logical basis. It was also submitted that there was no evidence in support of the finding and the mere fact that the sponsor was in her thirties and fell pregnant does not support it. Additionally, it was submitted the conclusion was illogical because the Tribunal did not consider the rights of the child, although how that could have possibly been relevant is not fathomable.

77    Consistently with the manner in which most administrative law matters are agitated in this Court, the appellant did not articulate any principled approach to the attack which he mounted on the Tribunal’s fact finding. Vague references were made to Li, but that decision is not relevant to the present issue. The alleged erroneous fact finding occurred in the formation of a subjective state of mind, being the non-satisfaction that there were compelling reasons for not applying the Schedule 3 criteria. The manner in which a vitiating error in fact finding or reasoning might occur in that process has been articulated in a number of authorities including R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; Avon Downs; Buck v Bavone (1976) 135 CLR 110 at 119; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; SGLB; Eshetu at 657 [147] per Gummow J; and SZMDS, all of which were recently considered in EHF17 at [59]-[88]. Relevant to the issue raised in this matter is the passage from the reasons of Gummow and Hayne JJ in SGLB at 998 [38], which was variously approved by Gummow A-CJ and Kiefel J and by Crennan and Bell JJ in SZMDS, to the following effect:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

(footnote omitted)

78    As was observed in EHF17 at [75], that passage was reflective of Gummow J’s observations in Eshetu at 657 [147] that a subjective jurisdictional fact does not exist if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”.

79    It must be kept steadily in mind that the reasons of the decision-maker ought not to be overly scrutinized upon an over-zealous attempt to discern some inadequacy: D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [87] per McClellan CJ at CL; and that administrative fact finding is significantly different to the curial process: Eshetu at 656 [143] per Gummow J.

80    The finding of which complaint is made is that the applicant and the sponsor chose to have a child so as to assist them with the applicant’s visa application. The Tribunal noted the applicant and the sponsor had advanced a case that she was thirty years old and that she did not want to use contraception for fear of not being able to conceive in the future, and that pregnancy was not planned but “just happened”. The Tribunal accepted that the parties wanted a family, however, it then identified that it did not accept their explanation for the pregnancy and found “that they were motivated to have a child when they did to provide a compelling reason to waive the Schedule 3 criteria.” Reading the Tribunal’s reasons fairly and as a whole the reasoning which appears around that finding provides support for it:

(a)    The Tribunal noted its concern that the parties decided to have a child when they were of limited resources and there was uncertainty regarding the appellant’s stay in Australia. There was nothing illogical or irrational in identifying circumstances which rendered it unusual that the sponsor would have a child at that point in time.

(b)     The Tribunal found that the parties were both articulate and aware of the various visa requirements. By identifying those factors the Tribunal signified that the parties were aware, or perhaps believed, that the applicant’s prospects of obtaining a partner visa would be enhanced were they to have a child.

(c)    It also specifically held that the previous visa applications by the appellant were ill-founded and that this was acknowledged by him. In the context, this was a finding that the appellant was prepared to make unmeritorious visa applications so that he could remain in Australia. The import of that finding was that the appellant was a person who was prepared to do anything he thought necessary to obtain a visa. Presumably that would include having a child with the sponsor.

81    It is relevant that the appellant does not dispute that the Tribunal was entitled to make these findings about him and the sponsor. It was suggested that the conclusion that the parties decided to have a child was illogical because there can be no certainty of a pregnancy merely because a couple ceases using contraception. That was, with respect, perhaps a somewhat overly pedantic approach. The sponsor admitted before the Tribunal that she went off contraception and deliberately attempted to fall pregnant, and the Tribunal’s finding that the parties “chose” to have a child when they did was merely a short-hand expression of that. The meaning of the Tribunal’s reasons is clear as to the motivation of the parties in having a child — or, more accurately, attempting to fall pregnant — and to read the reasons as if the Tribunal intended to confer on the parties some divine prescience is to read the reasons with an eye to error.

82    It is tolerably clear the Tribunal rejected the sponsor’s explanation as to why she chose to have a child when she did because: the parties’ personal circumstances made it an inopportune time to have a child; the parties believed that having a child at this point in time would assist the appellant’s chances of partner visa; and the appellant was a person who would engage in that type of activity for the purposes of securing such a visa. The Tribunal was entitled to give weight to those factors over the sponsor’s assertion to the contrary, and it was not required to reach any conclusion on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 282. The Tribunal was entitled to reach its conclusion as to the motivation of the parties for having a child based on the circumstances of the case despite the assertion of the sponsor’s subjective reasons to the contrary.

83    The Tribunal was neither illogical nor irrational and there was probative evidence on which its findings of fact were made, and there is no need to consider the question of whether illogicality operates only if a conclusion is one which no reasonable person might reach or if the reasoning pathway to the conclusion is one which no reasonable decision-maker might follow: EHF17 at [76]-[92].

84    In essence, the appellant’s submission was the Tribunal was bound to accept the assertion of the sponsor as to her reasons for having a child unless there was some direct cogent evidence to the contrary, and that if she were not to believed there would need to be an express finding to that effect. No authority was cited for those propositions. In any event, a fair reading of paragraph [37] of the reasons shows that the Tribunal did not believe the sponsor. The Tribunal stated what she said was her motivation for having a child and then said “but” it was of the view there was another motivation. That conclusion was derived from the circumstances of the case rather than from any individual piece of evidence. That is not surprising when the question is one of a person’s motivation. Save in exceptional cases, the credibility of an asserted motivation will be supported or undermined by its coherency with the surrounding circumstances. In support of the appellant’s case it was said that the Tribunal’s expressed reasoning was missing a “dot”, in the sense that not all the “dots” connecting the evidence to the conclusion were found. There was, however, no elucidation of the nature of that extra element, step or “dot”. This seemed to be a repeat of the submission that, unless there existed some piece of evidence that directly undermined the sponsor’s statement that she decided to have a baby because of her age, the Tribunal was bound to accept her evidence. As has been mentioned, that proposition is untenable.

85    Counsel for the appellant submitted that the Tribunal was required to set out the reasoning pathway for its finding that it did not believe the sponsor as to her motivation. He was asked for authority for that proposition and he relied on Li, although there is nothing in that case which supports the proposition for which he contends. He also sought to rely upon the observations of Logan J in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at 126 [37] to the following effect:

With all due respect to the Tribunal and in the sense they are used by Lee J, the adjectives “ignorant”, “arbitrary” and “perverse” aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document. What follows from this, to take up sentiments voiced by Allsop J (in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 at [10]) in the passage I have quoted from Judicial Review of Administrative Action, is that the Tribunal has failed to attend conscientiously and appropriately to its statutory obligations and the Federal Magistrates Court has failed to apprehend this.

86    It is not self-evident how that passage applied to the circumstances of the present case. There is no suggestion of the Tribunal acting upon a false factual premise and, by reference to the authorities relied upon by Logan J, nor is there anything to suggest that any finding is based on illogical or irrational grounds or is otherwise capricious.

87    It follows that the finding of fact as to the motivation of the parties for having a child despite their financial position and the uncertainty about their presence in Australia, was based on findings or inferences of fact supported by logical grounds. There is no merit in the appellant’s ground of appeal in this respect and the appeal ought to be dismissed.

Materiality of alleged error

88    Counsel for the Minister astutely submitted that even if the Tribunal made an error in concluding that the motivation of the parties for having a child was to bolster the appellant’s chances of obtaining a visa, that finding was not material to the conclusion that the relevant state of mind did not exist. In support of this, reliance was placed on the Tribunal’s findings in the first sentence of paragraph [38] of the Tribunal’s reasons:

Because the parties chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application, the Tribunal does not accept that the birth of the parties’ Australian-citizen child is a compelling reason to waive the Schedule 3 criteria.

89    It was submitted that the question of the motivation for having the child was not determinative of the Tribunal’s conclusion that “compelling reasons” did not exist. It was that the parties chose to have a child (or, more accurately, successfully attempted to have a child) knowing that the appellant may have to go off-shore to make a further application that rendered the circumstances devoid of the required characteristic. The effect of the Tribunal’s reasoning is that the circumstance that there was a child of the relationship was not compelling when the parties sought to have that child knowing that the appellant was not a resident and knowledgeable of the requirement that he may have to go off-shore in order to apply for a permanent visa.

90    There is much force in this submission. On the face of the Tribunal’s reasons, the finding that the parties chose to attempt to have a child or to have a child in an attempt to bolster the appellant’s visa application was not the reason identified as denying that there were “compelling reasons” based on the existence of a child of the relationship.

91    In support of his submission in this respect, Mr McGlade for the Minister relied upon the decision in CQG15 v Minister of Immigration and Border Protection (2016) 253 FCR 496, in which the appellant had challenged a decision of the Tribunal on the grounds that its findings as to his credibility were erroneous and that he had not been informed that his credibility was an issue. The Full Court (McKerracher, Griffiths and Rangiah JJ) identified (at 508-509 [38]) that findings of fact made by the Tribunal were not immune from review on an application for judicial review:

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)     reaching a finding without any logical or probative basis;

(c)     unreasonableness; and/or

(d)     jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451.

92    So long as these are understood as being the various ways in which the subjective jurisdictional fact on which the power in s 65 of the Act is conditioned might be vitiated, the statement is unremarkable: EHF17 at [73]-[88]. Subsequently the Court considered the extent to which an “erroneous” finding of fact might vitiate the ultimate decision and referred to the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [55], as to the relevant test to apply. Wigney J said:

Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

93    In other words, Wigney J identified that, where an erroneous finding of fact in a Tribunal’s determination is found, an evaluative task has to be undertaken to ascertain whether the fact so found actually contributed to or affected the impugned decision. In this context the Victorian Court of Appeal in Chang v Neill [2019] VSCA 151 (Chang v Neill) recently identified that, for such an error to have a vitiating effect, it had to be such that it could be said that there was a constructive failure by the decision-maker to undertake the statutory function. At [92] the Court of Appeal said:

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.

(footnotes omitted)

94    The Court subsequently concluded that a factual error will only result in a jurisdictional error where it was “material” in the sense used in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at 134-135 [29]-[31] and 147-148 [72] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at 445 [45]-[48] and 456-460 [84]-[95]; see also Fastbet (No 5) at [48]-[51].

95    The decision in Hossain is particularly apt, as it was a case which concerned the question of whether there were compelling reasons under cl 820.211(2)(d)(ii) for not requiring a visa applicant to satisfy certain criteria. The Tribunal had erred because it considered whether there were compelling reasons as at the date on which the application was filed rather than as at the date on which it made its decision. The High Court held that, ordinarily, where in legislation a condition has to be fulfilled in the exercise of a power, there is an implied threshold of materiality in the event of non-compliance. At 134-135 [30]-[31], the plurality identified the threshold in the following terms:

Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

    (citations omitted)

96    If it is assumed in the present case that the Tribunal had erred in concluding that the appellant and his sponsor decided to have a child to bolster the appellant’s chances of successfully pursuing his visa application, the question which needs to be addressed is whether that error denied the appellant “the possibility of a successful outcome”. Here, as Mr McGlade for the Minister submitted, the allegedly erroneous finding could not have affected the outcome because the Tribunal did not rely upon it in reaching its conclusion. The Tribunal did not rely upon the deliberate attempt by the parties to have a child as a reason for rejecting the existence of compelling circumstances: it relied upon the more benign circumstances that they were aware at the time they decided to attempt to have a child that the appellant might have to make an application off-shore. The allegedly erroneous finding of fact had no part to play in that conclusion.

97    It follows that the Minister’s submissions must be accepted. If, contrary to the conclusions reached above, the impugned finding was in error, it was not material to the Tribunal’s decision in the sense that by its making the appellant was denied the opportunity of a different outcome.

Ground 10

98    The appellant made a few additional written submissions in relation to the adequacy of the Tribunal’s reasons. In full they were:

49. As stated above the various grounds overlap and coalesce. The AAT did not demonstrate a proper pathway of reasons in coming to its pivotal conclusion that the wife, a permanent resident aged 30, became pregnant in order to give birth to an Australian citizen child so as to enhance her husband’s chances of getting a visa.

99    The first sentence is wrong. The grounds of appeal did not really coalesce. The difficulty was merely that, as articulated, they were general, vague and amorphous. The second sentence is also wrong. As has been identified above, the Tribunal indicated how it reached the conclusion it did and the basis for it. In any event, any error in this regard was not material to the Tribunal’s determination.

Conclusion

100    The result of the above is that the appeal should be dismissed.

101    The appellant should pay the first respondent’s costs of the appeal to be taxed.

Associate:    

Dated:    7 February 2020