FEDERAL COURT OF AUSTRALIA

Nepal v Minister for Immigration and Border Protection [2015] FCA 499

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondents costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

Introduction and summary

1    Mr Nepal is a Nepalese man who came to Australia initially on a student visa. In June 2009 he met Mr Remely who was, and is, an Australian citizen.

2    On 26 July 2010, Mr Nepal applied for two visas: (i) a Partner (Temporary) (Class UK) (Subclass 820) visa and (ii) a Partner (Residence) (Class BS) (Subclass 801) visa. Mr Remely sponsored Mr Nepal’s application. Mr Nepal said that Mr Remely was his de facto partner.

3    As to the first visa sought by Mr Nepal, Subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth) is concerned with “partner” visas. Clause 820.21 provides “Criteria to be satisfied at time of application”. The criteria to be satisfied at the time of application include cl 820.211(2)(a)(i) which requires the applicant to be “the spouse or de facto partner of a person who is an Australian citizen …”.

4    A delegate of the Minister refused Mr Nepal’s visa applications. Mr Nepal applied to the Migration Review Tribunal for a review of the decision in relation to the Subclass 820 visa. But the Tribunal affirmed the Minister’s decision. The Tribunal did not accept that, at the time of the application, Mr Nepal and Mr Remely “met the definition of a de facto relationship under the Migration Act and Regulations” [93]. The Tribunal concluded that at the time of the application, Mr Nepal and Mr Remely had a strong friendship and that Mr Nepal was fulfilling the role of Mr Remely’s carer. The Tribunal relied on Mr Remely’s evidence that “My treating doctor also recognises [Mr Nepal] to be my carer” [91] – [92]. Although the Tribunal considered that their relationship might have changed since the time of the application, it was unnecessary to address that question because Mr Nepal had not satisfied the criteria at the time of the application [96].

5    Mr Remely then applied to the Federal Circuit Court for review of the Tribunal’s decision. The Federal Circuit Court substituted Mr Nepal for Mr Remely, and dismissed the application without hearing from Mr Nepal about the merits of the review application. Mr Remely and Mr Nepal appealed to the Federal Court from that decision. In the Federal Court, Logan J heard the appeal (Mr Nepal and Mr Remely did not attend the hearing) and sent the matter back to the Federal Circuit Court because Mr Nepal had not been given natural justice: Remely v Minister for Immigration and Border Protection [2014] FCA 619 [49].

6    The remitted hearing was scheduled with notice to Mr Nepal and heard in Bundaberg on 14 January 2015. The location was chosen to accommodate Mr Nepal and Mr Remely who had difficulties with travelling. The Federal Circuit Court judge declined to hold the hearing by telephone due to difficulties, including oral communication, with a telephone link. Neither Mr Nepal nor Mr Remely attended the remitted hearing. Both had given notice that they would not attend for reasons including Mr Nepal’s fear of arrest: Nepal v Minister for Immigration and Border Protection [2015] FCCA 305 [10] – [13].

7    At the hearing of the remitted application, the Federal Circuit Court judge, Judge Coates, exercised jurisdiction under s 476 of the Migration Act 1958 to review for jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. His Honour dismissed the application.

8    Mr Nepal brings this appeal from the decision of Judge Coates. He has seven grounds of appeal. None of the grounds of appeal has been made out. The appeal must be dismissed.

The lack of an appearance by Mr Nepal at this appeal

9    Prior to this appeal, Mr Nepal brought an interlocutory application for Mr Remely to represent him in the appeal. He said that Mr Remely was entitled to represent him due to the operation of ss 276 and 280 of the Migration Act. The submission was that those sections recognised a right for Mr Remely, as sponsor, to give “immigration assistance” to Mr Nepal which was defined to include “representing the visa applicant … in proceedings before a court … in relation to the visa application”. This point overlapped with an issue raised by Mr Nepal in the appeal. The interlocutory application was adjourned to be dealt with at the time of the appeal. I gave reasons for taking this course and explained the manner in which this appeal would be heard: Nepal v Minister for Immigration and Border Protection [2015] FCA 366.

10    In my reasons for decision, I said that independently of ss 276 and 280 of the Migration Act there might also be a basis for Mr Remely to address the Court by extension of the concept of a McKenzie friend. Mr Remely and Mr Nepal had both provided affidavit evidence giving various reasons why it was not possible for them to attend a court hearing in Brisbane. Mr Remely, purporting to speak on behalf of Mr Nepal, had sought to have the appeal hearing conducted by telephone or by video link to the Bundaberg courthouse near to where they live: transcript page 3, 21 April 2015. I considered that it was not satisfactory for the appeal to be conducted only by telephone link [18], but I concluded that it was appropriate for the appeal to be conducted by video link to Bundaberg. A timetable for the filing of written submissions was made. Mr Nepal (assisted by Mr Remely) was also given liberty to file written submissions in response to the Minister’s written submissions prior to the appeal: transcript pp 15-16, 21 April 2015.

11    Mr Nepal, assisted by Mr Remely who prepared the written submissions, filed substantial written submissions in support of his appeal. However, for reasons explained below, he declined to file any written submissions in response or to attend the hearing of the appeal.

12    In affidavits filed on 20 May 2015, Mr Nepal and Mr Remely both explained, politely and respectfully, that they would not be attending the Bundaberg courthouse for the appeal hearing by video link yesterday. Mr Remely said in his affidavit that he had prepared the written submissions filed by Mr Nepal but he was not “prepared to commit such contraventions of the law” by appearing as the McKenzie friend of Mr Nepal. He said that “[i]n consequence of the hearing last month I am again not permitted to provide immigration assistance to my partner [Mr Nepal] in his application”. He continued:

Because I cannot render immigration assistance to [Mr Nepal] and in light of further deterioration of my medical conditions which have created a necessity for several medical appointments during the first week of next month I have decided not to appear at the hearing on the 25th of this month. I hasten to say that this decision is made with great reluctance because I’m fully and acutely aware of the importance of the impact of personal physical presence on such occasions. But more than anything I am deeply concerned that [Mr Nepal] is again without any legal representation; I’m not permitted to provide immigration assistance and therefore I am unable to respond to the outline of submissions filed by the respondents on 13/05/2015 on [Mr Nepal’s] behalf.

13    To the extent that Mr Remely’s decision not to “appear” in order to assist Mr Nepal was based upon an assumption that he was not permitted to do so, or an assumption that it would be an offence for him to provide “immigration assistance”, then this was an error. He had been told at the directions hearing, and it had been explained to him in written reasons, that he and Mr Nepal could appear by video link to Bundaberg. It had also been explained that the grounds concerning ss 276 and 280 of the Migration Act would be heard at that time. As I explain later in these reasons, as Mr Remely was the sponsor of Mr Nepal it was not an offence for Mr Remely to assist Mr Nepal with Mr Nepal’s submissions. Further, if Mr Remely had attended the appeal hearing and had been granted leave to make oral submissions as an extension of the concept of a McKenzie friend, it would not have been an offence for him to make those submissions.

14    As for Mr Nepal, in his affidavit he described his fear of deportation and explained why he had chosen not to appear at the appeal hearing:

I am not very happy to appear in court without [Mr Remely]. We are together six years and everyone says good relationship. Now because of earthquake we talk lots about Nepal and disaster and friends and family has died. [Mr Remely] makes much easier for me.

15    The appeal would therefore have proceeded in the absence of Mr Nepal and Mr Remely. However, at the appeal hearing counsel for the Minister indicated that she was content for the appeal to be heard and decided entirely on the basis of her written submissions which had been provided to Mr Nepal and to which he had been given the opportunity to respond. As I explain below, those written submissions mainly reiterate submissions that were made to Judge Coates and accepted in his judgment.

The decision of Judge Coates in the Federal Circuit Court

16    The application to the Federal Circuit Court was for judicial review of the Tribunal decision. The Tribunal had conducted a review of the decision of the Minister which was a “MRT-reviewable decision” so that the Tribunal could “exercise all the powers and discretions that are conferred by [the Migration Act] on the person who made the decision” (Migration Act, s 349(1)).

17    Judge Coates described the essential findings of fact in the Tribunal’s decision. He set out the Tribunal’s conclusions that Mr Nepal and Mr Remely were not in a “de facto relationship” as defined in s 5CB(2) of the Migration Act and that Mr Nepal did not satisfy the requirements of the Migration Regulations, Schedule 2, cl 820.211(2). Judge Coates explained that the facts upon which these conclusions were based had included the following (Nepal v Minister for Immigration and Border Protection [2015] FCCA 305 [24]):

(1)    Mr Nepal had arrived in Australia on a student visa but had stopped attending classes;

(2)    Mr Nepal met Mr Remely on a train on 2 June 2009 and they formed a friendship;

(3)    Mr Nepal and Mr Remely began a long term relationship on 15 August 2009; and

(4)    Mr Nepal had described Mr Remely as “like a father to me” and Mr Remely said that Mr Nepal “looks to me as something of a mentor or father figure and I’m certainly able to contribute greatly towards his general knowledge and education”.

18    Judge Coates then summarised the grounds of Mr Nepal’s application as follows (Nepal v Minister for Immigration and Border Protection [2015] FCCA 305 [26]):

(1)    a proper interpretation of r 2.03A makes it unnecessary for the relevant de facto relationship to be of at least 12 months duration prior to the date of the visa application where compelling and compassionate circumstances exist. I will add that the applicant’s submission clearly states that r 2.03A(3)(b) “unconditionally requires the assessment of the existence of compelling and compassionate circumstances. Only if that requirement is not met is it necessary to provide evidence of the existence of the relationship for 12 months prior to the application”;

(2)    the Tribunal did not consider compelling and compassionate circumstances;

(3)    because compelling and compassionate circumstances were allegedly not considered, all relevant circumstances were then not considered;

(4)    the Tribunal wrongly refused to accept the two psychologists reports supplied by the applicant;

(5)    the applicant was not afforded procedural fairness because it only provided him with an opportunity to respond, at the hearing, to information that could be the reason or part of the reason for affirming the decision under review, and that he should have been given an opportunity to respond in writing; and

(6)    there was demonstrated apprehensive bias in the Tribunal’s decision.

19    Each of these grounds was rejected by Judge Coates. I will deal with the grounds and his Honour’s reasoning in more detail below when considering the grounds of appeal.

Mr Nepal’s grounds of appeal

20    Mr Nepal initially had five grounds of appeal which he expressed as follows:

(1)    “On 23 May 2014 his honour Justice Logan from this court ordered that an appeal to the Federal Circuit Court which had been dismissed by Judge Coates on 11 March 2014 be remitted to the Federal Circuit Court for hearing and determination according to law. In his decision to dismiss the application Judge Coates failed to comply with that order in that neither the procedure during the hearing, nor the basis of the decision has been made according to law”.

(2)    “In the course of three directions hearings, Judge Coates finally determined that Mr Remely, Mr Nepal's partner was not his sponsor, thus denying him to represent Mr Nepal in court as set out in ss 276 and 280 of the Migration Act 1958. Mr Remely is aggrieved by not being allowed to represent his partner. Mr Remely is also aggrieved by not being able to carry out his sponsorship obligation”.

(3)    “During the hearing Mr Remely although he could no longer represent Mr Nepal appeared and made himself available to be questioned in the matter as a witness in relation to the submissions and particulars that he had prepared and filed but that opportunity was not taken up”.

(4)    “Contrary to his Honour Justice Logan's orders the appeal grounds 1 to 5 were not heard and determined under the law (Appeal ground 6 will no longer be pursued). In particular in relation to the compelling and compassionate circumstances the decision errs in the basis which forms its grounds, the interpretation of the Migration Act 1958 and references to relevant sections of case law despite there having been supplied clear and detailed written submissions well prior to the hearing”.

(5)    “The issue of the notification error and the associated jurisdictional error by the Tribunal was not dealt with although substantial material had been provided”.

21    In Mr Nepal’s written submissions he effectively raised two additional grounds of appeal. These were also matters that had been raised before Judge Coates. Counsel for the Minister did not object to these new grounds of appeal. She responded to them in her written submissions. The lack of objection was a proper course to take in circumstances in which Mr Nepal is a litigant in person (albeit assisted, very capably, by Mr Remely) and where the two grounds had been raised in the Federal Circuit Court. I will give leave for those grounds to be included. The additional two grounds were effectively as follows:

(6)    The Tribunal should have accepted the opinions of the psychologists from whom expert reports were supplied by Mr Nepal; and

(7)    Mr Nepal was denied procedural fairness by the Tribunal.

Ground 1: The hearing before Judge Coates did not comply with the orders of Logan J

22    Neither Mr Nepal nor counsel for the Minister addressed any submissions directly to this ground of appeal.

23    The orders made by Logan J on 23 May 2014 were, in effect, to substitute Mr Nepal for Mr Remely as the applicant, and to remit the matter back to the Federal Circuit Court for hearing and determination according to law, to permit Mr Nepal to be afforded natural justice by being heard on the merits of his application to the Federal Circuit Court for judicial review.

24    It appears that this ground of appeal — a ground that the hearing before Judge Coates had not proceeded “according to law”— is essentially concerned with the alleged consequence of the other, particular, grounds of appeal. Since I have concluded below that those other grounds of appeal should be dismissed, the necessary consequence is that ground 1 must also be dismissed.

Ground 2: The operation of ss 276 and 280 of the Migration Act

25    This ground of appeal alleges that Judge Coates denied Mr Nepal his right to be represented by Mr Remely under ss 276 and 280 of the Migration Act. Although Mr Nepal does not explain why this denial should result in the appeal being allowed, the allegation must essentially be that a denial of Mr Nepal’s rights under those sections invalidated Judge Coates’ decision.

26    The issues raised in this ground of appeal were also the subject of an interlocutory application by Mr Nepal which was reserved to be considered at the commencement of the appeal. In the interlocutory application, Mr Nepal sought “confirmation” that Mr Remely could represent him in court on the appeal based on the operation of ss 276 and 280 of the Migration Act. As Mr Nepal and Mr Remely chose not to attend the appeal, the interlocutory issue did not arise.

27    Section 276 of the Migration Act provides:

Immigration assistance

(1)    For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

(a)    preparing, or helping to prepare, the visa application or cancellation review application; or

(b)    advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

(c)    preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

(d)    representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

(2)    For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a)    preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b)    advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

(c)    representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

(2A)    For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a)    preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or

(aa)    preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or

(b)    advising the other person about making a request referred to in paragraph (a) or (aa).

(3)    Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

(a)    does clerical work to prepare (or help prepare) an application or other document; or

(b)    provides translation or interpretation services to help prepare an application or other document; or

(c)    advises another person that the other person must apply for a visa; or

(d)    passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

(4)    A person also does not give immigration assistance in the circumstances prescribed by the regulations.

28    Section 277 of the Migration Act is concerned with the circumstances in which a “lawyer” gives immigration legal assistance. Neither Mr Remely nor Mr Nepal is a lawyer.

29    Section 280 of the Migration Act provides:

Restrictions on giving of immigration assistance

(1)    Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

Penalty: 60 penalty units.

(1A)    An offence against subsection (1) is an offence of strict liability.

(2)    This section does not prohibit a parliamentarian from giving immigration assistance.

(3)    This section does not prohibit a lawyer from giving immigration legal assistance.

(4)    This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.

(5)    This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.

(5A)    This section does not prevent a close family member of a person from giving immigration assistance to the person.

(5B)    This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

(5C)    This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

(6)    This section does not prohibit an individual from giving immigration assistance in his or her capacity as:

(a)    a member of a diplomatic mission; or

(b)    a member of a consular post; or

(c)    a member of an office of an international organisation.

(7)    In this section:

“close family member” has the meaning given by the regulations.

“member of a consular post” means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.

“member of a diplomatic mission” means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.

“member of an office of an international organisation” means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963 , is an international organisation within the meaning of that Act.

30    Section 276 is, in effect, a definition section. It defines the circumstances in which a person gives “immigration assistance”. It does not confer any positive rights upon a person who wishes to give immigration assistance. In particular, the provision in s 276(2)(c) is concerned with defining “immigration assistance” for the purposes of Part 3 of the Migration Act to include the “use, knowledge of, or experience in, migration procedure to assist another person by representing the other person in proceedings before a court” concerning the visa for which the other person was sponsoring. This has the effect that if Mr Remely used his knowledge and experience in migration procedure to prepare Mr Nepal’s visa application, or to advise Mr Nepal, or to represent Mr Nepal before this court, then in each case Mr Remely would be giving “immigration assistance”. But the section confers no positive right upon Mr Remely to do any of these things. It is a definition for purposes of matters including the content of the offence under s 280(1).

31    Section 280(1) provides for a general offence for “a person who is not a registered migration agent” who gives immigration assistance. That subsection is made “subject to this section”. Other provisions in s 280 create exemptions from that offence. The other provisions exempt from the offence persons including migration agents, lawyers, and a person sponsoring a visa applicant.

32    Since Mr Remely is the sponsor of Mr Nepal, he is exempt from the liability for an offence of providing “immigration assistance” to Mr Nepal. But this does not mean that Mr Remely is entitled to do all the matters included within the definition of providing “immigration assistance”. In other words, Mr Remely might not commit an offence by representing Mr Nepal in court, but the Migration Act does not give him the power to represent Mr Nepal in court. As I explain below, the power to represent another person in court depends on other legislation and upon the court’s decision as to how it will regulate its own procedures. If there were any doubt about this conclusion, it is confirmed by the second reading speech of the legislation that introduced s 280(5C) which illustrated the concern of that section. That concern was to regulate Migration Agents and to ensure the scrupulous conduct of participants in that industry rather than to confer positive rights such as a right to appear in court. Dr Stone, giving the second reading speech, summarised the proposals as to ensure that the Migration Agents Regulatory Authority “has strong powers to protect consumers so that migration agents operate ethically, professionally and competently when assisting people to come to or stay in Australia”: see Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004, Hansard, 17 September 2003, 20253.

33    Whether Mr Remely was entitled to represent Mr Nepal before Judge Coates in the Federal Circuit Court was therefore dependent upon s 44 of the Federal Circuit Court of Australia Act 1999 (Cth) which provides:

Representation

A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:

(a)    under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or

(b)    under the regulations, the other person is taken to be an authorised representative; or

(c)    another law of the Commonwealth authorises the other person to represent the party.

34    Sections 55A and 55B of the Judiciary Act 1903 (Cth) permit a person to appear before a Federal Court if he or she is admitted to practice as a solicitor or barrister or both under either the High Court Rules 2004 or the relevant State or Territory Supreme Court. Rule 4.01(1) of the Federal Court Rules 2011 (Cth) provides that a person may be represented in the Court by a lawyer or may be unrepresented (although the court may dispense with that rule: see r 1.34). There are no current regulations dealing with s 44(b) of the Federal Circuit Court of Australia Act.

35    In summary, therefore, the only basis upon which Mr Remely could have been permitted to address the court to assist Mr Nepal before Judge Coates was by the exercise of the court’s powers to regulate its own proceedings to allow Mr Remely to make submissions by extension of the concept of a McKenzie friend. I addressed the limitations of that role in an earlier decision in this matter: Nepal v Minister for Immigration and Border Protection [2015] FCA 366 [13] – [16].

36    For these reasons, Mr Remely had no right to represent Mr Nepal before Judge Coates. But, in any event, there could not have been any error in the decision of Judge Coates which is the subject of this appeal because Mr Remely was not denied any right to assist Mr Nepal before Judge Coates. As I have explained, Mr Remely and Mr Nepal chose not to appear at the Federal Circuit Court hearing. In an earlier interlocutory hearing, Judge Coates had indicated that Mr Remely would be given the opportunity to make submissions by extension of the concept of a McKenzie friend: Nepal v Minister for Immigration & Anor [2014] FCCA 2463 [59]. No leave to appeal was sought from that interlocutory decision (see Federal Court of Australia Act 1976 (Cth) s 24(1A)).

Ground 3: Failure to take up Mr Remely’s offer to be a witness

37    Mr Nepal did not make any submissions in support of this ground of appeal. This ground essentially alleged error by Judge Coates because Mr Remely “made himself available to be questioned in the matter as a witness in relation to the submissions and particulars that he had prepared and filed but that opportunity was not taken up”.

38    There is no obligation on a court to call a person as a witness. Indeed, although it has been held that a judge may not call a witness without the consent of both parties (Re Enoch and Zaretsky Bock & Co [1910] 1 KB 327) the better view is that a judge has power to do so but that power will very rarely be exercised: Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518, 536-540 (Wilcox J).

39    There is another reason why this ground of appeal must be dismissed in addition to the lack of any obligation on Judge Coates, or (to the extent that this is alleged by this ground of appeal) any obligation on the Minister, to call Mr Remely to “be questioned”. Even if there had been some obligation to call Mr Remely as a witness, court proceedings do not involve the calling of persons as witnesses in order to be questioned about submissions and particulars that are filed.

40    This ground of appeal must be dismissed.

Ground 4: Failure to consider compelling and compassionate circumstances

41    This ground of appeal essentially raised the matters in grounds 2 and 3 of the grounds of review before Judge Coates (see above at [18]).

42    The submission was essentially that the Tribunal fell into jurisdictional error because it failed to consider “compelling and compassionate circumstances” as it was required to do under Migration Regulations r 2.03A.

43    In the Federal Circuit Court, Judge Coates dismissed these grounds of review. His Honour held that the Migration Act and the Migration Regulations require a finding of a de facto relationship at the time of the application. Only then can compelling and compassionate circumstances be considered if the de facto relationship has been one of 12 months or fewer. In other words, a consideration of “compelling and compassionate circumstances” cannot take place until there is a determination that the parties were in a de facto relationship at the time of the application. Since the Tribunal concluded that the parties were not in a de facto relationship at the time of the application, there was no jurisdictional error arising from any failure to consider compelling or compassionate circumstances.

44    Section 31(3) of the Migration Act provides that regulations may prescribe the requirements for a visa. Regulation 2.03(1) relevantly provides that, subject to r 2.03A and r 2.03AA, the prescribed criteria for a visa of a particular class are the primary criteria set out in a relevant Part of Schedule 2. The relevant part of Schedule 2 in this case included cl 820.21 which provides “Criteria to be satisfied at time of application”. The criteria include cl 820.211(2)(a)(i) that the applicant is “the spouse or de facto partner of a person who is an Australian citizen …”.

45    This ground of appeal effectively asserts that Judge Coates erred in concluding that s 2.03A does not provide a power to relieve an applicant from these criteria if compelling and compassionate circumstances are established.

46    The opening words of r 2.03A(1) are “In addition to the criteria prescribed by regulations 2.03 and 2.03AA …”. Regulation 2.03A then provides:

Criteria applicable to de facto partners

(1)    In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

(2)    If a person mentioned in subregulation (1) applies for a visa:

(a)    the applicant is at least 18; and

(b)    the person with whom the applicant claims to be in a de facto relationship is at least 18.

(3)    Subject to subregulations (4) and (5), if:

(a)    a person mentioned in subregulation (1) applies for:

(i)    a permanent visa; or

(ii)    a Business Skills (Provisional) (Class UR) visa; or

(iia)    a Business Skills (Provisional) (Class EB) visa; or

(iii)    a Student (Temporary) (Class TU) visa; or

(iv)    a Partner (Provisional) (Class UF) visa; or

(v)    a Partner (Temporary) (Class UK) visa; or

(vi)    a General Skilled Migration visa; and

(b)    the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

(4)    Subregulation (3) does not apply if the applicant applies on the basis of being:

(a)    in a de facto relationship with a person who:

(i)    is, or was, the holder of a permanent humanitarian visa; and

(ii)    before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or

(b)    in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.

(5)    Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

47    In summary, r 2.03A provides for criteria in addition to those criteria required by r 2.03(1) (which include Schedule 2, cl 820.21). One of those additional criteria is that the Minister must be satisfied that the applicant has been in a de facto relationship for at least 12 months. That addition 12 month requirement is not required if the applicant can establish “compelling and compassionate circumstances” for the grant of a visa.

48    The finding by the Tribunal that Mr Nepal and Mr Remely were not in a de facto relationship meant that the Tribunal did not need to consider the additional criteria in r 2.03A. Judge Coates was correct to dismiss these alleged grounds of jurisdictional error.

49    This ground of appeal must be dismissed.

Ground 5: Notification error

50    In support of this ground, Mr Nepal essentially submitted that Judge Coates had erred by failing to deal with an issue of “notification error” that Mr Nepal (through oral submissions made at a directions hearing by Mr Remely) had raised at a directions hearing on 29 October 2014 prior to the judicial review application before Judge Coates.

51    I do not consider that there is sufficient material before the Court on this appeal to satisfy me that this issue was raised with any sufficient clarity before Judge Coates for it reasonably to have been appreciated by the judge as a ground upon which review was sought. In any event, for the reasons below, I do not accept that the ground of review has any merit.

52    The material described below, and contained in the Appeal Book before this Court, was material which was contained in a “bundle of relevant documents” before the Federal Circuit Court:

(1)    Mr Nepal initially entered Australia on a student visa.

(2)    On 26 July 2010, Mr Remely signed an application as sponsor of Mr Nepal. In his covering letter, Mr Remely said that the application was for “an 820-801 Visa”.

(3)    On 16 September 2010, Mr Nepal was granted a Bridging visa while his application to remain permanently in Australia was being considered.

(4)    On 2 February 2011, the Minister, by his delegate, gave his decision in relation to that application. The delegate said that:

There are 2 subclasses of visa in the classes you applied for:

* Partner (Temporary) (Class UK) (Subclass 820)

* Partner (Residence) (Class BS) (Subclass 801)

(5)    The delegate of the Minister concluded that the criteria for the Subclass 820 (spouse) visa had not been met and because of this “you do not meet clause 801.221 and therefore do not meet the criteria for [Subclass 801 visa]”.

(6)    On 17 February 2011, Mr Nepal applied for “review of refusal to grant an 820 Visa and relevant advice from the delegate”. No application for review was brought in relation to the Subclass 801 visa.

53    The review conducted by the Tribunal concerned only the decision by the delegate of the Minister to refuse the Partner (Temporary) (Class UK) visa (Subclass 820).

54    As for the criteria for a Subclass 801 visa, Migration Regulations cl 801.221(1) requires that at the time of decision concerning a Subclass 801 visa, the applicant must meet the requirements of subclauses (2), (2A), (3), (4), (5), (6) or (8).

55    Each of subclauses (2), (2A), (3), (4), (5), and (6) require the applicant to be the holder of a Subclass 820 visa. In other words, the refusal of a Subclass 820 visa necessarily has the effect that the Subclass 801 visa will be refused under each of those subclauses.

56    Subclause (8), which also concerns the requirements for a Subclass 801 visa, is different. It applies:

(a)     if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

(b)    if the Tribunal:

(i)     has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

(ii)    has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a subclass 820 visa.

57    There was no suggestion in the materials before the Federal Circuit Court or this Court that Mr Nepal had held a Subclass 820 visa at any time. In any event, absent any application to the Tribunal for review, there was no obligation upon the Tribunal to consider whether Mr Nepal satisfied the criteria for the grant of a Subclass 801 visa which include whether the applicant is a “de facto partner” at the time of decision. The failure of the Tribunal to consider these issues could not have been a jurisdictional error.

58    On this appeal, Mr Nepal attached a letter to his submissions that was apparently concerned with the Subclass 801 visa. Although the letter was not part of an affidavit, I will refer to it. The letter is from the Department of Immigration and Border Protection. It is dated 18 June 2014. It informs Mr Nepal that the notification to him of the Minister’s refusal to grant the Subclass 801 visa was “defective”. The author of the letter then notified Mr Nepal of that refusal. The author of the letter also informed Mr Nepal of his rights to seek review of the decision to refuse the Subclass 801 visa within 21 days from the date that he received the letter.

59    Mr Nepal was therefore entitled to bring any application for review of the Minister’s decision in the period following 18 June 2014. If such an application had been brought (and there is no evidence before this Court on this point), and if that application were refused, then judicial review could be sought of the decision to refuse the application. But that was not a matter which was extant before Judge Coates and no ground of appeal on this basis can succeed.

Ground 6: Reports of the psychiatrists

60    Before the Federal Circuit Court (see [18] above, concerning ground 4), Mr Nepal submitted that the Tribunal had made a jurisdictional error by refusing to accept the two psychologists reports supplied by Mr Nepal. Judge Coates concluded that the Tribunal had given proper consideration to the two reports.

61    The Tribunal carefully considered the two psychiatrist reports over four pages of its decision. The Tribunal took the reports into account as “useful in terms of the assessment of the emotional commitment of the applicant and the sponsor to each other”. However, the Tribunal explained that the assessment of that matter for the purposes of determining if the parties were in a “de facto” relationship as defined in the Migration Act was a matter for the Tribunal, not for the psychiatrists. In the Federal Circuit Court, Judge Coates reached the same conclusion. That conclusion is correct.

62    The error in Judge Coates’ reasons that Mr Nepal alleges in his submissions on this ground is as follows. It is that his Honour erred in concluding that it was open for the Tribunal, when interpreting “the mind and feelings of [Mr Nepal and Mr Remely] themselves”, to prefer the views of the Tribunal itself over the views of the two psychiatrists. Mr Nepal submits that the Tribunal was precluded from doing so by r 1.09A(3)(d)(iv) of the Migration Regulations.

63    Subsection 5CB(3) allows for the Regulations to make provision for the determination of whether the conditions described in s 5CB(1) or (2) exist. That “provision” is made in r 1.09A.

64    Regulation 1.09A of the Migration Regulations provides:

(1)    For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.

(2)    If the Minister is considering an application for:

(a)    a Partner (Migrant) (Class BC) visa; or

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

(c)    a Partner (Residence) (Class BS) visa; or

(d)    a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)    The matters for subregulation (2) are:

(a)    the financial aspects of the relationship, including:

(i)    any joint ownership of real estate or other major assets; and

(ii)    any joint liabilities; and

(iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day-to-day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i)    whether the persons represent themselves to other people as being in a de facto relationship with each other; and

(ii)    the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii)    any basis on which the persons plan and undertake joint social activities; and

(d)    the nature of the persons' commitment to each other, including:

(i)    the duration of the relationship; and

(ii)    the length of time during which the persons have lived together; and

(iii)    the degree of companionship and emotional support that the persons draw from each other; and

(iv)    whether the persons see the relationship as a long-term one.

65    Regulation 1.09A(3)(d)(iv) of the Migration Regulations is only one factor to be considered by the Tribunal as part of its ultimate consideration of whether the parties are in a “de facto” relationship within s 5CB(2) of the Migration Act (see r 1.09A(2)). That ultimate question was, as Judge Coates rightly observed, a matter for the Tribunal not for the psychiatrists. The Tribunal’s conclusion that Mr Remely and Mr Nepal were not in a de facto relationship at the time of application arose because of its finding that it was not satisfied that “at the time of application for the visa the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others”.

66    This ground of appeal must also be dismissed.

Ground 7: Natural justice and provision of additional time to respond to questions

67    The final matter raised by Mr Nepal in his submissions, essentially as a new ground of appeal, is that the Tribunal failed to “inform the applicant that he may request to be allowed additional time to comment or respond to those questions”. The questions to which Mr Nepal referred were “a number of questions in relation to the time of the commencement of the relationship”. One of those questions was said by Mr Nepal to “refer to a time in which nothing occurred and which had no mention in any material that had been provided”. Mr Nepal also submitted that s 359AA(b)(iii) of the Migration Act “requires that the Tribunal must advise the applicant that he or she may seek additional time to comment on or respond to the information”.

68    It appears that this matter corresponds with ground (5) of the matters raised before Judge Coates (described above at [18]). Judge Coates dismissed this ground for various reasons as follows (at [73]):

(1)    the Tribunal told Mr Nepal what it was enquiring into – the nature of the relationship, how genuine it was, and whether it had been in existence for 12 months prior to the application being made;

(2)    Mr Nepal did not suggest that more time was required because any issue in the decision of the Tribunal caught him by surprise;

(3)    Mr Nepal was allowed to file material after the hearing, but there was nothing new in that material for the Tribunal’s consideration; and

(4)    when the Tribunal asked Mr Nepal questions about his relationship with Mr Remely, the Tribunal was putting to Mr Nepal the issues which arose on the evidence that Mr Nepal and Mr Remely had supplied.

69    None of Mr Nepal’s submissions provide any reason to doubt any of these conclusions by Judge Coates.

70    As for Mr Nepal’s submission about s 359AA, that section must be read together with s 359A(1) which provides for an obligation for the Tribunal, in a way that the Tribunal considers to be appropriate in the circumstances, to give “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and to “ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”; and to “invite the applicant to comment on or respond to it”. That information must be provided in a document which is sent to the applicant by a process contained in s 379A. Section 359A(3) then provides that

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

71    Section 359AA then provides for an alternative to the documentary process in s 359A. The alternative is an oral process set out below (with emphasis upon “may” added in bold and italics):

Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so--the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

72    The effect of reading these two sections together is that s 359AA facilitates the operation of s 359A if the Tribunal chooses to provide particulars to the applicant in the manner in which s 359AA provides, rather than to follow the procedure in s 359A: Chen v Minister for Immigration and Citizenship [2013] FCA 1137; (2013) 218 FCR 561, 567 [20] (Logan J).

73    The effect of Judge Coates’ unchallenged findings is that the Tribunal did not exercise the power to provide Mr Nepal with “the reason, or a part of the reason, for affirming the decision that is under review”.

74    In his written submissions, Mr Nepal referred to various exchanges during the Tribunal hearing. One of those exchanges involved answers to questions which involved information “that the applicant gave for the purpose of the application for review”. Those questions concerned the time when Mr Nepal moved from Melbourne to Bundaberg. The questions were based upon a statutory declaration made by Mr Nepal in which he referred to going up to Bundaberg to visit Mr Remely a few weeks after they met in Melbourne. He was asked if that was August or September. Section 359A(4)(b) excludes that information from the scope of s 359A.

75    In any event, Mr Nepal did not suggest that the Tribunal’s reasons relied on any discrepancy (of which there may have been none) in his answers. Nor did he suggest that any further information that he could have provided the Tribunal after the hearing could have made any difference. There was no denial of natural justice in the questions asked by the Tribunal, or the way in which those questions were asked, or the failure to seek any further written response.

76    The other passage was set out by Mr Nepal in his submission as follows:

Member: … now the reason that the Visa was refused to you in the first place is relevant because this Tribunal is bound by the same laws as is the Department of Immigration. Okay?

Mr Nepal: Okay.

Member: So, the Tribunal is looking at the same legal provisions. Now the issues on which the application was refused the first time related to the nature of the relationship between yourself and Mr Remely and the question of whether you were in a genuine and continuing de facto relationship as that is defined in the Immigration Act and Regulations and also whether that relationship had been in existence for 12 months prior to the making of the application. Okay?

Mr Nepal: Okay.

Member: That distinction is important, now the reason that the Visa was refused to you in the first place is relevant because this Tribunal is bound by the same laws as is the Department of Immigration. Okay?

77    In this exchange, the Tribunal was not exercising its power to provide Mr Nepal with particulars of information that the Tribunal considers would be “the reason, or a part of the reason, for affirming the decision that is under review”. Instead, the Tribunal was explaining to Mr Nepal the issues that it was going to consider. As the Minister submitted in written submissions on this appeal, the information upon which the Tribunal had made its decision was information “that the applicant gave during the process that led to the decision that is under review”: Migration Act s 359A(4)(b). Accordingly this ground of appeal must also fail.

78    In light of this conclusion it is not necessary to consider further whether any infringement of s 359AA(b)(iii) of the Migration Act would have invalidated the Tribunal decision if it did not result in a denial of natural justice because, as Judge Coates explained, the Tribunal allowed Mr Nepal to file material after the hearing: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388 - 389 [91] (McHugh, Gummow, Kirby & Hayne JJ). That material, which the Tribunal took into account, was two sets of submissions, an affidavit from Mr Nepal and an affidavit from Mr Remely.

Conclusion

79    Mr Nepal’s appeal must be dismissed.

Associate:    

Dated:    26 May 2015