Federal Court of Australia

Minister for Immigration and Citizenship v Singh [2026] FCAFC 42

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 3-5 of the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 11 August 2025 be set aside.

3.    In lieu thereof the following orders be substituted:

(a)    The further amended application dated 18 August 2025 be dismissed.

(b)    The applicant pay the first respondent’s costs of the proceedings, as agreed or taxed.

4.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

5.    The first respondent have leave to apply for a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

6.    If the first respondent files written submissions (not exceeding three pages) in support of the issue of a costs certificate by 27 April 2026, the first respondent be taken to have made an application pursuant to the leave granted by order 5.

7.    The appellant file and serve any submissions in response (not exceeding three pages) by 11 May 2026.

8.    Any application pursuant to the leave granted by order 5 be decided on the basis of the written submissions and without an oral hearing.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The Minister for Immigration and Citizenship (Minister) appeals against a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1260 (primary judgment). In the primary judgment, the FCFCOA quashed a decision of the Administrative Appeals Tribunal (Tribunal), by which the Tribunal had affirmed a decision of a delegate of the Minister’s predecessor, refusing to grant a Partner (Temporary) (Class UK) (Subclass 820) visa (Subclass 820 visa) to the first respondent, Vikram Singh.

2    The Tribunal had affirmed the refusal to grant Mr Singh’s visa application on the ground that he did not meet the requirement specified in cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), namely that “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”. The Tribunal found that Mr Singh did not meet Schedule 3 criterion 3001, and that there were not compelling reasons for not applying that criterion. The Tribunal did not decide, or consider, whether Mr Singh also failed to meet Schedule 3 criterion 3003 or criterion 3004.

3    The primary judge held that cl 820.211(2)(d)(ii) requires a decision-maker to consider each of criteria 3001, 3003 and 3004 in Sch 3 to the Regulations when determining whether there are “compelling reasons for not applying those criteria”. The Minister submits that he erred in so holding. By a notice of contention, Mr Singh contends, first, that cl 820.211(2)(d)(ii) is invalid and, secondly, that the primary judge erred in holding that the Tribunal’s decision was not affected by jurisdictional error by reason of its having based its decision on a finding made by it without an evidentiary foundation.

4    For the reasons that follow, the arguments advanced by Mr Singh on the notice of contention should be rejected. The appeal should be allowed. Orders 3-5 made by the primary judge on 11 August 2025 should be set aside. In lieu thereof, there should be an order that Mr Singh’s application for judicial review be dismissed with costs.

Relevant legislative provisions

5    As was explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 (Plaintiff S297/2013) at 188-9 [34], where an application for a visa is made, s 65(1) of the Migration Act 1958 (Cth) imposes a duty on the Minister either to grant the visa under s 65(1)(a) or to refuse to grant the visa under s 65(1)(b), “depending on the existence of one or other of two mutually exclusive states of affairs”, namely “the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters”. By s 65(1)(a)(ii), one of the matters of which the Minister must be satisfied is that “the other criteria for it prescribed by this Act or the regulations have been satisfied”. If the Minister concludes that they are not satisfied that any one of those “other criteria” is met, the consequence, according to s 65(1)(b), is that the Minister must refuse to grant the visa.

6    The “other criteria” applicable to a Subclass 820 visa relevantly include criteria to be satisfied at the time of the application, which appear in cl 820.211 of Sch 2 to the Regulations. Clause 820.211(1) requires that the applicant for a Subclass 820 visa not be the holder of a Subclass 771 (Transit) visa, and that they meet the requirements of subcll (2), (5), (6), (7), (8) or (9). The only subclause relevant to the present appeal is subcl (2), which provides:

(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.

7    As has already been noted, the requirement that is relevant to the present appeal is that set out in cl 820.211(2)(d)(ii). That requirement in turn directs attention to the criteria identified in cll 3001, 3003 and 3004 of Sch 3. The “requirement” set out in cl 820.211(2)(d)(ii) will be satisfied if either the visa applicant satisfies the criteria in cll 3001, 3003 and 3004 of Sch 3, or if “the Minister is satisfied that there are compelling reasons for not applying those criteria”.

8    In MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478, Bromberg J described the operation of cl 820.211(2)(d)(ii) as follows (at 512 [10]):

That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] per Crennan J. The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24] per Tamberlin, Conti and Jacobson JJ.

9    Justice Bromberg described the “evaluative judgement” to be made as one in which “the decision-maker may consider a single circumstance or a multitude of circumstances” (at 512 [12]).

10    Clause 3001 of Sch 3 to the Regulations provides as follows:

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

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

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

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

(c)    if the applicant:

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

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

whichever is the later of:

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

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

(d)    if the last substantive visa held by the applicant was cancelled, and the ART has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of the day when that last substantive visa ceased to be in effect and the day when:

(i)    if the ART’s decision is given to the applicant orally—the applicant is taken, under subsection 368(7) of the Act, to have been notified of the decision; or

(ii)    otherwise—the applicant is taken, under section 379C of the Act, to have received the notification of the ART’s decision.

11    Clause 3003 of Sch 3 states:

If:

(a)    the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b)    on 31 August 1994, the applicant was either:

(i)    an illegal entrant; or

(ii)    the holder of an entry permit that was not valid beyond 31 August 1994;

the Minister is satisfied that:

(c)    the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

(d)    there are compelling reasons for granting the visa; and

(e)    the applicant has complied substantially with the conditions that apply or applied to:

(i)    the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(ii)    any subsequent bridging visa; and

(f)    the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)    the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

12    Clause 3004 of Sch 3 is as follows:

If the applicant:

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

(b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c)    the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

(d)    there are compelling reasons for granting the visa; and

(e)    the applicant has complied substantially with:

(i)    the conditions that apply or applied to:

(A)    the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(B)    any subsequent bridging visa; or

(ii)    the conditions that apply or applied to:

(A)    the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(B)    any subsequent bridging visa; and

(f)    either:

(i)    in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii)    in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)    if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

13    A “substantive visa” is defined, in s 5(1) of the Migration Act, to mean a visa other than a bridging visa, a criminal justice visa, or an enforcement visa.

14    Each of cll 3003 and 3004 of Sch 3 to the Regulations commences with a conditional clause. Clause 3003 only applies according to its terms where the two conditions identified in paragraphs (a) and (b) of cl 3003 are both satisfied. Conversely, cl 3004 only applies where either of the two conditions referred to in paragraphs (a) and (b) of cl 3004 is satisfied. It is apparent that, as far as substantive visas are concerned, the conditions that engage cl 3003 are the converse of the conditions that engage cl 3004. The arguments of the parties proceeded on the basis that, in any given case, a person will either meet both the conditions that cause cl 3003 to apply, or they will meet at least one of the two alternative conditions that causes cl 3004 to apply, but will never meet the conditions for the application of both cll 3003 and 3004. We have not found it necessary to decide whether that will always be so. It may be at least theoretically possible, for example, that a person who satisfies the conditions specified in both paragraphs (a) and (b) of cl 3003 may also satisfy the condition specified in cl 3004(a) if, having arrived in Australia on an entry permit that expired before 31 August 1994, they later held a criminal justice visa at some time after 1 September 1994, which subsequently expired. For present purposes, we proceed on the basis that, in circumstances like those of Mr Singh, a person who satisfies the condition identified in paragraphs (a) and (b) of cl 3003 will not satisfy either of the conditions in paragraphs (a) or (b) of cl 3004.

15    In Mr Singh’s case, he was a person who had held a substantive visa after 1 September 1994 and who had subsequently ceased to hold that substantive visa. He had last held a substantive visa on 30 September 2012. It follows that the composite condition for the application of cl 3003 was not met in his case, and one of the two alternative conditions for the application of cl 3004 was met.

Factual background

16    Mr Singh is a citizen of India who first arrived in Australia on a Student (Subclass 573) visa in June 2008. This was a “substantive visa” as defined. On 11 March 2013, Mr Singh applied for a protection visa and, on 25 July 2013, that application was refused by a delegate of a predecessor of the Minister. On 23 March 2015, the Tribunal affirmed the decision of the delegate. Mr Singh filed an application for judicial review of that decision in the Federal Court but later, on 26 May 2016, he withdrew that application.

17    On 13 May 2015, Mr Singh made an application for a Subclass 820 visa and a Partner (Residence) (Class BS) (Subclass 801) visa (Subclass 801 visa) on the basis of his spousal relationship with his sponsor, Rebecca Roberts.

18    On 14 February 2019, a delegate refused to grant Mr Singh a Subclass 820 visa or a Subclass 801 visa. The application for a Subclass 801 visa was refused on the ground that Mr Singh did not meet the requirements of cl 801.221(1) of Sch 2 to the Regulations. In relation to the Subclass 820 visa, because Mr Singh did not hold a substantive visa at the time he made the application, the requirement in cl 820.211(2)(d)(ii) applied. The delegate determined that Mr Singh was “unable to satisfy all of” criteria 3001, 3003 and 3004 in Sch 3 to the Regulations, and that compelling reasons did not exist for not applying those criteria.

19    On 5 March 2019, Mr Singh applied to the Tribunal for review of the delegate’s decision to refuse to grant him a Subclass 820 visa. Mr Singh’s representative provided submissions and documentary evidence in relation to the issue of whether compelling reasons existed to waive Schedule 3 criteria 3001 and 3004. The circumstances in which Schedule 3 criterion 3003 is expressed to apply were not relevant to Mr Singh. On 6 November 2020, the Tribunal conducted a hearing. Mr Singh and his sponsor, Ms Roberts, participated by telephone.

20    On 9 November 2020, the Tribunal affirmed the decision of the delegate to refuse to grant Mr Singh a Subclass 820 visa, and provided written reasons for its decision.

The decision and reasoning of the Tribunal

21    After setting out the factual background to Mr Singh’s application for a Subclass 820 visa and identifying the applicable legislation, the Tribunal identified (at [13] of its reasons) the issue for determination on the application before it as “whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria”. On the basis that Mr Singh had ceased to hold a substantive visa more than 28 days prior to lodging his application for a Subclass 820 visa, the Tribunal found that he did not satisfy Schedule 3 criterion 3001. The Tribunal then explained (at [20]) that, having determined that one of the applicable Schedule 3 criteria had not been met, it was not required to consider the remaining Schedule 3 criteria.

22    In its consideration (at [21]-[58]) of whether it was satisfied that there were “compelling reasons for not applying the criteria”, the Tribunal summarised and analysed:

(a)    the evidence of Mr Singh, Ms Roberts, and five further witnesses called by Mr Singh who gave evidence orally at the hearing before the Tribunal or provided statutory declarations;

(b)    other relevant information and evidence that was provided by Mr Singh or was available via his “Departmental file”; and

(c)    a number of circumstances that Mr Singh had asked the Tribunal to consider.

The Tribunal found (at [55]) that it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

23    The Tribunal determined that Mr Singh did not meet the requirement in cl 820.211(2)(d)(ii) of Sch 2 to the Regulations. The Tribunal thus affirmed the decision of the delegate to refuse to grant Mr Singh a Subclass 820 visa.

The decision and reasoning of the primary judge

24    On 4 December 2020, Mr Singh sought judicial review of the Tribunal’s decision in the FCFCOA. By his amended application for judicial review filed on 6 February 2025, Mr Singh relied on the following single ground of review:

The Tribunal decision is affected by jurisdictional error as there was no evidence that the sponsor would be eligible for a travel exemption or extended period of stay provisions and there was no evidence there were third countries to which the applicant could travel given his visa refusal history in Australia.

25    At the hearing before the FCFCOA, Mr Singh abandoned that aspect of the ground of review by which he alleged that the Tribunal had erred because there was no evidence of any “third countries to which the applicant could travel given his visa refusal history in Australia”. As the primary judge noted at [35] of the primary judgment, Mr Singh’s argument “proceeded solely on the basis there was an error in the Tribunal having made a finding that the ‘sponsor would be eligible for a travel exemption or extended stay provisions’ without any evidence to support that finding”.

26    After the hearing, the Court held a further directions hearing, at which the primary judge raised an additional issue concerning the proper construction of cl 820.211(2)(d)(ii) of Sch 2 to the Regulations. His Honour summarised the observation that he raised with the parties (at [36]) as follows:

… I observed the Tribunal, like the delegate, took the view that it was unnecessary to apply criteria 3003 and 3004 because it had found the applicant had not met criterion 3001. I queried whether the Tribunal, in having failed to apply, or consider the application of, criteria 3003 and 3004 as part of its assessment process, had misapplied the law and thereby failed to discharge the statutory task before it as required by cl 820.211(2)(d)(ii). …

27    The primary judge invited supplementary written submissions from the parties in relation to the construction issue. In his supplementary submissions, Mr Singh advanced a contention that cl 820.211(2)(d)(ii) was invalid on the ground that it was illogical, because it purported to require that a person satisfy both Schedule 3 criteria 3003 and 3004, in circumstances where those two criteria applied to situations that were mutually exclusive. Mr Singh also argued that, as the primary judge had suggested, the Tribunal had misapplied the law because it had only determined that Schedule 3 criterion 3001 was not met, and should not be waived, when it was required to consider all of Schedule 3 criteria 3001, 3003 and 3004.

28    The primary judge (at [38]-[45]) rejected Mr Singh’s submission that the Tribunal had made a finding, without evidence to support it, that Ms Roberts would be eligible for a travel exemption or would “be granted an extended stay in India pursuant to the extended period of stay provisions”. The primary judge (at [57]-[58]) rejected the argument that cl 820.211(2)(d)(ii) was invalid.

29    The primary judge held (at [49]) that a proper approach to the assessment of the requirement in cl 820.211(2)(d)(ii) required that the decision-maker first assess whether the visa applicant satisfied each of Schedule 3 criteria 3001, 3003 and 3004. This first step was said to require “the making of findings of fact in relation to a range of requirements specified within each of criteria 3001, 3003 and 3004”. His Honour identified eight specific requirements which a decision-maker, in a case like Mr Singh’s, was required to consider and in respect of which they were required to make factual findings. If any of those requirements was not satisfied, the decision-maker was then required to assess whether there were “compelling reasons” not to apply Schedule 3 criteria 3001, 3003 and 3004. In making that assessment, the primary judge held (at [50]), the decision-maker was required to take into account their findings in respect of each of the eight specific requirements it had considered earlier. The primary judge held that any departure from that approach would give rise to jurisdictional error.

30    In the present case, the Tribunal had considered whether Mr Singh satisfied Schedule 3 criterion 3001, and whether there were compelling reasons not to apply that criterion, without also considering the issues relevant to whether Mr Singh satisfied Schedule 3 criteria 3003 and 3004. Accordingly, the primary judge concluded that the decision of the Tribunal was affected by jurisdictional error, and upheld Mr Singh’s application for judicial review.

The appeal to this Court

31    On his appeal to the Full Court, the Minister contends that the primary judge erred in concluding that cl 820.211(2)(d)(ii) of Sch 2 to the Regulations requires a decision-maker to consider each of criteria 3001, 3003 and 3004 in Sch 3 to the Regulations in determining whether there are “compelling reasons” not to apply those criteria for the purpose of cl 820.211(2)(d)(ii). The Minister particularises the ground of appeal as follows:

a.    At J[47]-[50], the primary judge concluded that for the purpose of applying cl 820.211(2)(d)(ii), a decision-maker must:

i.    first, “[make] findings of fact” as to “whether [an] applicant satisfies each of Schedule 3 Criteria 3001, 3004 and 3004” (J[49]); and

ii.    second, take those “antecedent findings” into account in “assess[ing] whether there are ‘compelling reasons’ not to apply … Criteria 3001, 3003 and 3004” (J[50]).

b.    The primary judge’s conclusion at particular (a) is wrong because the requirements in cl 820.211(2)(d)(ii) are cumulative, such that if one criteria is not satisfied, there is no requirement to consider the remaining criteria (Singh v Minister for Home Affairs (2020) 274 FCR 506[; [2020] FCAFC 7 at 516] [40]-[41] (Derrington J, Logan and Reeves JJ agreeing)).

32    By his notice of contention dated 22 September 2025, Mr Singh contends that the primary judgment should be affirmed on the following grounds, in addition to those set out in the primary judge’s reasons for judgment:

1.    There was no evidence before the Tribunal … to support the finding that the sponsor was “free” to travel to either India or to a third country.

2.    There was no evidence before the Tribunal that the sponsor would obtain an exemption by The Australian Border Force Commissioner or an Australian Border Force employee as required by item 7 in Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 dated 25 March 2020, as made under s 477(1) of the Biosecurity Act 2015 (Cth) (Determination).

3.    The Tribunal’s findings regarding the sponsor’s eligibility for “extended stay provisions” lacked an evidentiary foundation[.]

4.    Clause 820.211(2)(d)(ii) is invalid as it provides a criterion which is internally illogical. This is because nobody can satisfy both criteria 3003 and 3004 as criterion 3003 only applies to people who did not hold substantive visas after 1 September 1994 and entered Australia prior to that date whereas criterion 3004 only applies to people who have … held substantive visas after 1 September 1994 or who unlawfully entered Australia after that date.

33    The first three grounds in the notice of contention all relate to a single issue, which reflects that aspect of the original ground of judicial review which Mr Singh pressed before the FCFCOA, and which was rejected by the primary judge. The fourth ground in the notice of contention raises for consideration the validity of cl 820.211(2)(d)(ii), reflecting another submission that was advanced by Mr Singh in his further written submissions in the FCFCOA, and which was rejected by the primary judge.

34    It will be convenient to address the issues that arise on the appeal in the following order:

(a)    the validity of cl 820.211(2)(d)(ii) of Sch 2 to the Regulations (ground 4 of Mr Singh’s notice of contention);

(b)    the construction of cl 820.211(2)(d)(ii) and its operation by reference to Schedule 3 criteria 3001, 3003 and 3004 (the Minister’s ground of appeal); and

(c)    the findings which Mr Singh contends that the Tribunal made and which are said to lack an evidentiary foundation (grounds 1-3 of Mr Singh’s notice of contention).

Clause 820.211(2)(d)(ii) of Sch 2 to the Regulations is not invalid

35    Mr Singh submits that cl 820.211(2)(d)(ii) of Sch 2 to the Regulations is invalid on the ground that it provides a criterion which is “internally illogical” because it is not possible to satisfy both criteria 3003 and 3004 “because criterion 3003 only applies to people who did not hold substantive visas after 1 September 1994 and entered Australia prior to that date whereas criterion 3004 only applies to people who have held substantive visas after 1 September 1994 or who unlawfully entered Australia after that date”.

36    This argument was rejected by the primary judge at [58] of the primary judgment, where his Honour said:

While I appreciate the observation that nobody can strictly satisfy criteria 3003 and 3004, it is clear from those criteria that they are addressed to two different groups and operate disjunctively. Each criterion begins with the word “If”, a conditional clause, and thereafter provides a description of characteristics to be held by an applicant before specifying a range of criteria to be satisfied. In the present case, the applicant is not caught by the operation of criterion 3003 and is therefore not required to satisfy that criterion for the purposes of any assessment against [cl] 820.211(2)(d)(ii). Instead, the applicant is clearly caught by the operation of criterion 3004 and therefore required to satisfy that criterion for the purposes of any assessment against [cl] 820.211(2)(d)(ii). I read as implicit in cl 820.211(2)(d)(ii) words of extension that acknowledge an applicant need only satisfy criterion 3003 or 3004 as that “modified construction” is consistent with the language in fact used by the legislature in Schedule 3: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [37]-[40]. I therefore reject the contention that cl 820.211(2)(d)(ii) is invalid.

37    As explained at [14] above, criteria 3003 and 3004 are expressed to apply in different circumstances which are, in some cases, mutually exclusive. This means that, in those cases, if the conditions for the application of criterion 3003 are met in the case of a particular visa applicant, the alternative conditions for the application of criterion 3004 will not be met, and vice versa.

38    Clause 820.211(2)(d)(ii) is a provision of delegated legislation, made pursuant to ss 31(3) and 505 of the Migration Act. Delegated legislation which, on its true construction, is “in some critical respect, unintelligible or meaningless” may be held invalid on that basis: West Tamar Council v Tasmanian Planning Commission [2011] TASSC 15 at [15]. However, delegated legislation will not be invalid if it operates in a way that is rationally capable of being understood by a process of construction, even if the language chosen to express its operation might have been more precise. As Dixon J said in Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 at 227-8, “to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation”. Moreover, provisions of subordinate legislation must be construed so as not to exceed the power given by the Act under which they are made: Legislation Act 2003 (Cth), s 13. Clause 820.211(2)(d)(ii) should be construed, if possible, so that it is not meaningless and does not operate in a way that is absurd or unreasonable.

39    Criterion 3003 in its terms only has content that needs to be satisfied if the conditional identified at the beginning of criterion 3003 (up to and including paragraphs (a) and (b)) is met. In cases where that conditional is not met, criterion 3003 is devoid of applicable content. In such cases, criterion 3003 does not impose any “requirement”, and so the visa applicant will not relevantly fail to satisfy that criterion. Similarly, if the condition for the application of criterion 3004 is not met, there will be no basis to conclude that a visa applicant fails to satisfy criterion 3004. It is clear that, in any given case, unless the decision-maker is satisfied that there are compelling reasons not to apply the requirements, a visa applicant will need to satisfy either the requirements in paragraphs (c) to (h) of criterion 3003 or the requirements in paragraphs (c) to (h) of criterion 3004, but (subject to the reservation mentioned in [14] above) not both.

40    It is not necessary to adopt a “modified construction” of cl 820.211(2)(d)(ii) by reading the words “the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004” as if they read “the applicant satisfies Schedule 3 criterion 3001 and either criterion 3003 or criterion 3004”. Rather, it is simply a matter of construing cl 820.211(2)(d)(ii) and the three Schedule 3 criteria together, with an appreciation that criteria 3003 and 3004 themselves only impose requirements when the conditions for their application are met. Insofar as it might be helpful to explain the operation of cl 820.211(2)(d)(ii) by articulating a construction of its text, it is a matter of reading the words “the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004” as meaning “the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, insofar as they have application to the applicant according to their own terms”. That is not a strained construction that requires the reading in of words that do not appear; it is a natural way to read the expression used in cl 820.211(2)(d)(ii), particularly in light of the terms of criteria 3003 and 3004.

41    If the content of criteria 3003 and 3004 had been included in a single clause of Sch 3 to the Regulations, expressed as prescribing certain requirements if the conditions specified in paragraphs (a) and (b) of criterion 3003 were met, and different requirements if those conditions were not met, there could be no suggestion that a clause in Sch 2 that provided that a visa applicant must meet the requirements of that clause was meaningless or invalid. As a matter of substance, that is no different from what cl 820.211(2)(d)(ii), read together with both criteria 3003 and 3004, achieves.

42    On the proper construction of cl 820.211(2)(d)(ii), an applicant is required to satisfy criteria 3001, 3003 and 3004 according to their terms. The Minister’s consideration of whether there are “compelling reasons for not applying those criteria” is to be assessed by reference to such of the Schedule 3 criteria that are, in their terms, applicable to the visa applicant and which the Minister has found are not satisfied. Understood in this way, cl 820.211(2)(d)(ii) is not unintelligible or meaningless, and is not invalid.

The construction and operation of cl 820.211(2)(d)(ii) of Sch 2 and cll 3001, 3003 and 3004 of Sch 3 to the Regulations

43    The submissions made by Mr Singh to the Tribunal, as to why the Tribunal should find that there were compelling reasons not to apply the Schedule 3 criteria, were not directed specifically to the disapplication of criterion 3001, criterion 3003 or criterion 3004. Mr Singh did not, for example, identify specific reasons why he had not complied with a specific requirement of one of those criteria. Rather, his submissions were more general and were to the effect that particular consequences would follow if he was unable to be granted a visa while he remained in Australia.

44    In the Tribunal’s reasons at [19]-[20], it stated:

The information contained in the Decision record of the delegate dated 14 February 2019 is that [t]he applicant’s last substantive visa ceased on 30 September 2012. As the applicant ceased to hold a substantive visa more than 28 days prior to lodging his 820 Subclass vi[s]a, the Tribunal finds the applicant does not satisfy criterion 3001.

In order to meet the legal requirements of subclause 820.211(2)(d)(ii) the applicant must satisfy each of the Schedule 3 criteria 3001, 3003 and 3004. As the applicant has not satisfied criterion 3001, the Tribunal is not required to consider the remaining criteria.

45    The primary judge held that, in reasoning in this way, the Tribunal misapplied the law. The primary judge (at [49]) considered that, before making an assessment as to whether there were compelling reasons for not applying the relevant Schedule 3 criteria, a decision-maker must first assess whether each of criteria 3001, 3003 and 3004 was satisfied. That step was said to require the decision-maker to make “findings of fact in in relation to a range of requirements specified within each of [those criteria]”. The primary judge identified eight specific factual determinations which he considered the Tribunal was required to make in the circumstances of the present case – one corresponding to criterion 3001 and seven corresponding to each of paragraphs (c) to (h) of criterion 3004.

46    The primary judge summarised the effect of this construction as follows (at [50]):

A decision-maker’s evaluation of these eight specific requirements involves the making of findings which reveal how the applicant has complied with Australian immigration laws in the past and intends to do so in the future, whether the applicant gained visa eligibility by remaining unlawfully in Australia, and whether there are compelling reasons to grant the visa. Where a decision-maker has determined each of the eight specific requirements in the applicant’s favour, they must conclude that cl 820.211(2)(d)(ii) has been satisfied. In all other cases, the decision-maker must proceed to assess whether there are “compelling reasons” not to apply Schedule 3 criteria 3001, 3003 and 3004. In undertaking that assessment, it is appropriate that a decision-maker consider their antecedent findings in relation to each of these eight specific requirements, so as to properly appreciate the nature and extent of the applicant’s non-compliance with the applicable Schedule 3 criteria. That approach ensures the decision-maker is fully informed of the circumstances surrounding the applicant’s failure to satisfy the relevant Schedule 3 requirements before lawfully determining whether those criteria should not apply on the basis of sufficiently compelling reasons.

47    The primary judge (at [51]) concluded that “any departure” from this approach would give rise to jurisdictional error. His Honour considered that, in the absence of findings on each factual issue presented by the terms of the relevant criteria, “the assessment of whether compelling reasons exist lacks both legal and factual legitimacy”, because “the degree to which a decision-maker finds an applicant’s reasons to be forceful so as [to] compel them not to apply the Schedule 3 criteria will be informed by the degree to which the applicant has not met those same criteria”.

48    We respectfully disagree with the primary conclusion that a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria.

49    Where a decision-maker finds that one of the Schedule 3 criteria is not satisfied (as, in this case, the Tribunal found in respect of criterion 3001), it follows that the requirements of cl 820.211(2)(d)(ii) will not be met. In that event, the decision-maker must refuse to grant the visa, unless they are satisfied that there are compelling reasons not to apply the particular criterion that the decision-maker has found not to be satisfied. If a decision-maker, having considered the submissions of the visa applicant, is not satisfied that there are compelling reasons for not applying that criterion, they will be bound to refuse the visa: Plaintiff S297/2013 at 188-9 [34].

50    What a decision-maker must consider depends on the representations or submissions advanced by the visa applicant as to why they contend there are “compelling reasons”. If particular facts that are relevant to one Schedule 3 criterion are advanced by the visa applicant as providing compelling reasons for not applying another of the Schedule 3 criteria (or as compelling reasons for not applying any of the relevant Schedule 3 criteria), they will need to be considered by the decision-maker. But there is no general obligation for a decision-maker to consider all of the Schedule 3 criteria when assessing whether there are compelling reasons not to apply another of them.

51    To take a more concrete example, criterion 3001 requires that a visa applicant apply for a new substantive visa within 28 days of the expiry of their last substantive visa. There may be compelling reasons not to apply that requirement which are entirely unrelated to the other Schedule 3 criteria. For example, in a particular case, a visa applicant might rely upon the fact that they applied for the visa only shortly after the expiry of the 28-day period, and might contend that they had been unable to make the application sooner due to circumstances beyond their control. It is difficult to see what purpose would be served in requiring a decision-maker to make findings as to all of the factual elements of the other Schedule 3 criteria before considering whether the reason advanced by the visa applicant amounted to compelling reasons not to apply criterion 3001.

52    The primary judge considered that AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) supported his construction of cl 820.211(2)(d)(ii) of Sch 2 to the Regulations. In that case, the High Court considered the operation of s 473DD of the Migration Act, which applied to decision-making by the Immigration Assessment Authority (Authority). Section 473DD provided:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

53    As Kiefel CJ, Gageler, Keane and Gordon JJ noted in AUS17 at 501 [9], subparagraph (b)(ii) of s 473DD had been inserted during the parliamentary process for the purpose of expanding the circumstances in which the Authority could consider new information. In light of that purpose, their Honours construed s 473DD as requiring the Authority to consider paragraph (b) before considering paragraph (a), because the two matters in subparagraphs (i) and (ii) of paragraph (b) were matters the Authority was required to consider and which were to inform its assessment of whether there were exceptional circumstances for the purpose of paragraph (a). The purpose of s 473DD(b)(ii) would have been thwarted if the existence of the circumstances referred to in s 473DD(b)(i) and (ii) could be ignored in determining whether there were “exceptional circumstances” to consider new information: AUS17 at 501 [10]-[11].

54    The relationship between the separate Schedule 3 criteria to which cl 820.211(2)(d)(ii) refers is not comparable to the relationship that existed between paragraphs (a) and (b) of s 473DD of the Migration Act. The Schedule 3 criteria are requirements that must be met, subject to the decision-maker being satisfied that there are compelling reasons not to apply them. It is not a circumstance where one requirement must be satisfied before another distinct requirement can be disapplied. In our view, the reasoning of the High Court in AUS17 does not support the proposition that an assessment of the factual elements of each of the relevant Schedule 3 criteria must be made before assessing whether there are compelling reasons not to apply the requirements of another Schedule 3 criterion.

55    On the appeal, Mr Singh does not seek to support the reasoning of the primary judge in its entirety. He submits that the Tribunal was required to consider whether Schedule 3 criteria 3003 and 3004 were satisfied and that, if an applicable criterion was not satisfied, the Tribunal was required to make a finding as to why that criterion was not satisfied. However, Mr Singh submits, “[i]t would be sufficient to find, for instance, that one of the cumulative matters in criterion 3004 (c) to (h) had not been met without making findings about the other cumulative matters”. Mr Singh therefore does not attempt to support the primary judge’s conclusion that, in considering whether there were compelling reasons not to apply Schedule 3 criteria 3001, 3003 and 3004, the Tribunal was required to consider all eight of the specific requirements which his Honour identified. Rather, he submits:

While there is nothing stopping a decision maker making findings on each of the cumulative matters in criterion 3004 (c) to (h) and it may be beneficial to do so as explained by the primary Judge, such a task is not mandated by the clause when properly construed.

56    Mr Singh submits that cl 820.211(2)(d)(ii) of Sch 2 requires a decision-maker to evaluate whether there are compelling reasons for not applying Schedule 3 criteria if they are not satisfied, and that “[t]hat question is directed to all the criteria which have not been complied with”.

57    Read literally according to its grammatical meaning, cl 820.211(2)(d)(ii) arguably supports the view that, if the applicant does not satisfy all of Schedule 3 criteria 3001, 3003 and 3004, then the Tribunal is required to consider, as a single question, whether there are compelling reasons for not applying those criteria at all. However, even though it may be slightly less grammatically precise, the words in cl 820.211(2)(d)(ii) can also quite naturally be read distributively – that is, so that the words “those criteria” relate to each member of the set individually, rather than to the set as a whole. In other words, it is a natural and sensible reading of cl 820.211(2)(d)(ii) that, if the visa applicant does not satisfy any of Schedule 3 criteria 3001, 3003 or 3004, the decision-maker is to consider whether they are satisfied that there are compelling reasons for not applying that particular criterion that is unsatisfied. It would make little sense to require decision-makers to decide whether there are compelling reasons for not applying a criterion that is satisfied.

58    In any case, if a decision-maker is not satisfied that there are compelling reasons for not applying any one of the relevant Schedule 3 criteria, it must follow that they are not satisfied that there exist compelling reasons for not applying those criteria as a whole.

59    For these reasons, we do not accept the premise of the argument advanced by Mr Singh, namely that a decision-maker assessing cl 820.211(2)(d)(ii) is required to make a single assessment as to whether there exist compelling reasons for not applying “all the criteria which have not been complied with”. If a decision-maker finds that the requirement of any one of the criteria is not satisfied, they may consider whether there are compelling reasons not to apply that criterion, without also determining whether the other Schedule 3 criteria are satisfied, providing the decision-maker has regard to the submissions of the visa applicant that are relevant to whether the Schedule 3 criterion in question should be disapplied.

60    Clause 820.211(2)(d), in its current form, was inserted into the Regulations by the Migration Regulations (Amendment) 1996 (Cth). The construction of cl 820.211(2)(d)(ii) which we favour is generally consistent with the purpose of that clause, as explained in the explanatory statement that accompanied its insertion into the Regulations. The relevant part of the explanatory statement reads as follows:

Subclause 10.1 omits paragraph 820.211(2)(d) of [Sch 2 to] 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.

(Emphasis added.)

61    Referring to the explanatory statement that accompanied the insertion of cl 820.211(2)(d) into Sch 2, in Singh v Minister for Home Affairs (2020) 274 FCR 506; [2020] FCAFC 7 (Singh) at 521 [61], Derrington J (Logan and Reeves JJ agreeing) said that:

… 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. …

62    That observation was directed to answering an argument about a particular suggested mandatory consideration, and was not directed to responding to the particular issue of construction presented by this appeal. However, the observation nevertheless supports the conclusion that the various elements of all relevant Schedule 3 criteria are not mandatory considerations in the assessment of whether there are compelling reasons not to apply (any one of) those criteria. More generally, the purpose of providing decision-makers with flexibility in the application of the Schedule 3 criteria is consistent with construing cl 820.211(2)(d)(ii) as not requiring the decision-maker to approach the issue in a prescriptive way, which may not reflect the issues raised by the submissions advanced by the visa applicant.

63    The particular issue of construction that arises for consideration on this appeal was not the subject of submissions in Singh. The primary judge was therefore correct to observe (at [65]) that Singh was not an authority against, and did not foreclose acceptance of, the construction which his Honour adopted. Nevertheless, we note that the construction which we prefer is consistent with the following statement of Derrington J (Logan and Reeves JJ agreeing) in Singh at 516 [40]:

The requirement of Sch 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 Sch 3 criteria 3003 and 3004.

64    For the reasons we have given, we would uphold the Minister’s appeal.

The Tribunal’s decision was not based on a finding for which there was no evidentiary basis

65    Before the Tribunal, one of the circumstances on which Mr Singh relied as providing a compelling reason not to apply the Schedule 3 criteria was that he and Ms Roberts had been attempting to conceive a child. If Mr Singh were required to leave Australia and return to India while he waited for an application for a partner visa to be processed, Ms Roberts would face difficulty trying to conceive during that time. Mr Singh contended that his wife could not join him in India as she was Pakistani by birth and this may cause her difficulty in obtaining a visa. He also submitted that COVID-19 travel restrictions may prevent her travelling, and that she may not be permitted to stay for an extended period in India pursuant to relevant provisions of the laws of India.

66    Grounds 1-3 of Mr Singh’s notice of contention relate to the following passage in the reasons of the Tribunal (at [51]-[52]), which responded to these submissions:

… Further, while the Tribunal notes the applicant and his wife’s concern regarding the tensions between Pakistan and India, there is no evidence that either the applicant or his wife actually faces any personal threat to their well-being should either travel and stay in India. The claims by the applicant’s wife that the Indian authorities might refuse her a visa (to enter India because she is Pakistani) or that they would suspect her of being a “spy”, have been made without any corroborative evidence whatsoever. In these circumstances, and having considered the other circumstances outlined above, the Tribunal finds that none is so forceful a circumstance such that it compels the Tribunal to not apply the Schedule 3 criteria.

In respect to the parties “fertility concerns,” and the lengthy timelines the parties may have to wait should for [sic] the processing of the applicant’s partner visa application offshore, the Tribunal notes the applicant’s wife is able to travel abroad to join him, as it has found, (and while she is free to join him in India, the parties may also travel to a “third-country”. The parties are presently free under Australian law to seek exemption(s) to travel, or utilise the existing “extended period of stay” provisions for the applicant’s wife to join the applicant abroad should they wish to do so. Combined, because of the options the parties have to be together, even should they reside temporarily in different countries, the Tribunal has not found these circumstances so forceful such that they compel the Tribunal, in this case, to not apply the Schedule 3 criteria.

(Emphasis added.)

67    Mr Singh’s argument focusses particularly on the italicised passage. The parties agree that the reference to “exemptions” was to exemptions to travel restrictions imposed by the Australian government in response to COVID-19, and that the reference to “extended period of stay” provisions was to requirements under the laws of India.

68    The primary judge held that the Tribunal did not make a positive finding that Ms Roberts would be granted a travel exemption or that she would be eligible under the Indian “extended period of stay” provisions. The reasoning and conclusion of the primary judge in relation to this issue were correct.

69    The Tribunal’s reasons should not be read as making a finding that Mr Singh’s wife, Ms Roberts, would be granted a travel exemption, or that she would be given permission to remain in India pursuant to “extended period of stay provisions”. In the context of [51] of the Tribunal’s reasons, the statement in [52] that Ms Roberts was “free to join him in India” was a reference to its earlier rejection of the submission, advanced by Mr Singh, that Ms Roberts would not be able to obtain a visa to join him in India because she was a citizen of Pakistan. As the preceding paragraph made clear, that submission was rejected because Mr Singh had advanced no corroborative evidence to support it.

70    The sentence in the Tribunal’s reasons (at [52]) which immediately follows the statement which is the focus of Mr Singh’s submission recognised that the prospect of Ms Roberts being able to obtain a travel exemption or to utilise the extended period of stay provisions was something that “the parties” (meaning Mr Singh and Ms Roberts) were “free … to seek”. In that context, the Tribunal’s reference to “the options the parties have to be together” is to be understood as a reference to the potential options available to Mr Singh and Ms Roberts to pursue opportunities to see each other during any period while any offshore visa application made by Mr Singh was under consideration. It was not an assessment of the feasibility of those options. In circumstances where those “options” were available, the Tribunal found that the circumstances of Mr Singh and Ms Roberts were not “so forceful” that the Tribunal would find them to amount to “compelling circumstances” not to apply the Schedule 3 criteria.

71    The Tribunal was not required to make a finding as to whether Ms Roberts would be able to obtain a travel exemption or whether she would be permitted to access extended stay provisions, in circumstances where Mr Singh had not advanced evidence in support of those contentions. There was nothing irrational, illogical or unreasonable in determining that the circumstances (for not applying the Schedule 3 criteria) were not “compelling” on the basis of the availability of a recourse, in the absence of a positive determination as to the outcome of that recourse.

72    It is to be recalled that the Tribunal was considering whether it was “satisfied” that there were compelling reasons not to apply Schedule 3 criterion 3001. If the Tribunal was not positively so satisfied, given that Schedule 3 criterion 3001 was not satisfied, it was required to refuse to grant Mr Singh a Subclass 820 visa. Mr Singh did not advance any evidence suggesting that Ms Roberts would not be granted a travel exemption, or that the Indian government would not permit her to access extended period of stay provisions. The interpretation of the Tribunal’s reasons which the primary judge accepted is consistent with the assessment that the Tribunal was required to make.

73    Mr Singh contends that the present case is comparable to Chan v Minister for Immigration and Border Protection [2018] FCA 1323. However, in that case, the sponsor had given evidence that he had a medical condition which could be exacerbated by the stress of separation from the visa applicant, and that he had seen a doctor who had prescribed medication for a medical condition. The Tribunal made a finding that the sponsor’s medical condition “appeared to be responding to medication”. There was no basis for that finding of fact, and it was held that the finding was irrational, and gave rise to jurisdictional error. In contrast, in the present case, on the construction of the Tribunal’s reasons which we favour, the Tribunal did not make any express finding that Ms Roberts would receive a travel exemption.

74    Mr Singh also relied on an analogy with the reasoning of Charlesworth J in ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 at [46]-[52]. In that case, the Tribunal considered country information that indicated that persons who were returned to Sri Lanka after departing in breach of Sri Lankan immigration laws were routinely granted bail if a family member could provide surety. The Tribunal found that there was a possibility that the appellant would be held for a period of up to a fortnight while awaiting bail. Justice Charlesworth held that it was a jurisdictional error for the Tribunal to find that the duration of the appellant’s detention would be for a relatively brief period, in circumstances where there was no evidence to support what Charlesworth J found to be an implicit assumption that he had a family member who would provide surety for bail. The decision demonstrates that a decision may be illogical or unreasonable if the reasons in support of it depend on a factual assumption that is not supported by evidence. In the present case, however, for the reasons given above and by the primary judge, the Tribunal’s reasons should not be understood as making a positive finding that Ms Roberts would receive a travel exemption or that extended stay provisions would apply to Ms Roberts.

75    For these reasons, grounds 1-3 of the notice of contention should be rejected.

Conclusion

76    For the reasons given above:

(a)    the primary judge was correct to hold that cl 820.211(2)(d)(ii) of Sch 2 to the Regulations is not invalid;

(b)    the primary judge erred in holding that the Tribunal’s decision was affected by jurisdictional error because it confined its consideration to whether the requirement in Schedule 3 criterion 3001 was met and whether the Tribunal was satisfied that there were compelling reasons for not applying that criterion, and failed to consider Schedule 3 criterion 3004; and

(c)    the primary judge was correct to hold that the Tribunal’s decision was not based on a finding for which there was no evidentiary basis.

77    It follows that the appeal should be allowed. Orders 3-5 made by the primary judge should be set aside. In lieu of those orders, orders should be made dismissing the application for judicial review with costs. Mr Singh should pay the Minister’s costs of the appeal. Given that the appeal has succeeded on a question of law, we will make orders enabling Mr Singh to consider whether to apply for a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

Associate:

Dated:    13 April 2026