FEDERAL COURT OF AUSTRALIA

Chan v Minister for Immigration and Border Protection [2018] FCA 1323

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to amend the notice of appeal by adding Grounds 3 and 4 as expressed in the form of the draft amended notice of appeal provided to the Court on 7 May 2018.

2.    The amended notice of appeal be filed by no later than 4.00 pm on 5 September 2018.

3.    Leave be granted to the appellant to rely on the affidavit of Michael Terence Jones affirmed 18 April 2018.

4.    The appeal be allowed in part.

5.    Order 1 of the Federal Circuit Court of Australia made on 23 November 2017 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent made on 30 May 2017 be set aside; and

(b)    the matter be remitted to the second respondent for redetermination according to law.

6.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 23 November 2017, which dismissed the appellant’s amended application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal decided that a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Partner (Temporary) (Class UK) visa should be affirmed.

2    The appellant, Ms Chan, was born in China and arrived in Australia on 11 April 2012 on a visitor visa. She had previously been married (1996 to 2008) but it seems that the marriage “had not been a good one”. There are two children of that marriage. On 28 June 2012, the appellant’s visitor visa was cancelled because of a breach of the “no work” condition. The appellant had also applied for a student visa, but this was refused on 12 September 2012.

3    On 4 May 2015, the appellant applied for the visa the subject of this appeal. The criteria for this visa are set out in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The appellant’s application was based on her relationship with the sponsor— her husband, Mr Sultana, an Australian citizen whom the appellant married on 17 April 2013.

4    The delegate refused to grant the visa on the basis that the appellant did not satisfy cl 820.211(2)(d)(ii) of Sch 2 to the Regulations in that she did not satisfy the criteria of Sch 3 to the Regulations—specifically criterion 3001 which, in substance, requires the visa applicant to be the holder of a substantive visa at the time of the application for the visa in question or to have made the application within 28 days of being the holder of a substantive visa—and compelling reasons did not exist for not applying that criterion. There is no dispute that the appellant does not satisfy the relevant criteria of Sch 3. The only question is whether compelling reasons exist to waive those requirements.

The Tribunal

5    The appellant sought a review before the Tribunal of the delegate’s refusal. She appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal received evidence from the appellant and her husband, the sponsor. The appellant was represented by a registered migration agent, who attended the hearing.

6    As I have recorded, the Tribunal decided that the delegate’s refusal should be affirmed. The Tribunal was not persuaded that “compelling reasons” existed to justify the waiver of the Sch 3 criteria. In coming to this finding, the Tribunal had regard to the policy guidance given in the Department’s Procedures Advice Manual, which the Tribunal understood as stating that the existence of the waiver provision was to allow persons whose circumstances are genuinely compelling to regularise their status. The Tribunal noted, however, that it was not bound by Departmental policy. The Tribunal acknowledged that the determination of whether compelling reasons exist involves a finding of fact to be arrived at having regard to all the circumstances of the case.

7    The Tribunal then directed its attention to four matters, namely:

(a)    the long-term nature of the appellant’s and her husband’s relationship;

(b)    the effect of separation on the appellant’s husband;

(c)    the effect of separation on the appellant’s and her husband’s relationship; and

(d)    the effect of separation on family planning matters.

8    As to the first matter, the Tribunal said:

37.    The Tribunal accepts that the parties have now been married for more than four years and that the applicant is committed to the relationship with the sponsor. The Tribunal is mindful of the reasoning in Waensila and has considered if the relationship is now long standing and if this, and being in a genuine relationship, amount to compelling reasons. However, the Tribunal is of the view that the majority of applicants for a partner visa consider themselves to be in a genuine relationship and indeed it is an essential requirement for the grant of the visa. In all the circumstances of this particular case the Tribunal is not persuaded that satisfying an essential requirement for the grant of the visa amounts to a compelling reason. The Tribunal is not satisfied that the existence of a long standing genuine spousal relationship constitutes a compelling reason for not applying Schedule 3 criteria.

9    As to the second matter, the Tribunal noted the appellant’s evidence that she and the sponsor were emotionally dependent on each other. The Tribunal also noted the appellant’s evidence that the sponsor suffered from anxiety and was “in a fragile state”. The Tribunal noted the sponsor’s evidence that his anxiety condition was sensitive to stress, and said:

40.    The Tribunal accepts that the applicant and her sponsor have developed a very close and emotionally supportive relationship. The Tribunal further accepts the sponsor has a medical condition which may be exacerbated by stress and that separation from his partner may well trigger the condition. However, the Tribunal was mindful of the evidence of the sponsor himself that the condition had only recently been diagnosed and appeared to be responding to medication. There was no evidence that treatment was not and would not, in the foreseeable future, be available to the sponsor.

(Emphasis added.)

10    The Tribunal reasoned:

41.    Married couples who are required to live separately whilst awaiting the outcome of visa applications will generally be unhappy about the separation. However, this is the situation for most people applying for Partner visas offshore; one partner will generally be offshore for extended periods of time while the other will usually be in Australia. The Tribunal does not consider that emotional difficulties and physical difficulties as described above that may arise for the sponsor during a separation while waiting for a visa application to be processed is a compelling reason not to apply the Schedule 3 criteria.

11    As to the third matter, the Tribunal noted the evidence given by the appellant and her husband of their “very intense relationship from the time they met”, including the amount of time they have spent together. When weighing up this evidence, the Tribunal observed that the evidence concerning the time the appellant and her husband had spent together was not consistent (the appellant spoke of spending a significant amount of time at a unit in the City of Sydney).

12    The Tribunal concluded:

43.    Whilst the Tribunal appreciates a period of separation will present some difficulties for the parties the Tribunal does not consider that the subsequent difficulties that may arise for the parties during a separation were difficulties that were not reasonably foreseeable at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa. The Tribunal is not persuaded on the evidence that the effects of separation on the relationship are a compelling reason not to apply the Schedule 3 criteria.

13    As to the fourth matter, the appellant informed the Tribunal that she had been trying to have a baby and that, on the day before the hearing, she had “been to a doctor about her fertility”. The Tribunal found:

44.    … Whilst the tribunal was mindful of the ages of the visa applicant and her sponsor it was also conscious that the parties had not sought medical assistance prior to the day before the hearing. The Tribunal is not persuaded on the evidence in this case that the effects of separation on the parties’ family planning is a compelling reason not to apply the Schedule 3 criteria.

14    The Tribunal’s overall assessment was that the above matters, considered separately and cumulatively, were not compelling reasons not to apply the Sch 3 criteria. While acknowledging that the sponsor would strongly prefer the appellant to remain in Australia, the Tribunal was not satisfied on the basis of the evidence before it that the appellant or the sponsor would suffer emotional or physical hardship if the appellant were to return to China to apply for the visa.

The Circuit Court

15    The appellant sought judicial review of the Tribunal’s decision before the Circuit Court. By an amended application dated 28 September 2017, the appellant raised one ground, particularised as follows:

1.     The Tribunal erred by misdirecting itself as to the meaning of the term "compelling reasons" in cl 820.212(d)(ii) of Schedule 2 to the Migration Regulations 1994.

Particulars

(a)    In considering the operation of clause 820.211(2)(d)(ii), the Tribunal erroneously concluded that the mere existence of a long term relationship, on its own and without more, would not be sufficient to establish compelling reasons for not applying the criteria in Schedule 3. There was no statutory basis for the Tribunal to reach the conclusion that the existence of a long term relationship on its own could not give rise to a compelling reason for not applying that requirement.

(b)    The Tribunal accepted that the sponsor's medical condition could be "triggered" by a separation from the Applicant but said that there was no evidence that treatment would not be available. The Tribunal failed to consider whether the condition, even if treatable, would cause suffering to the sponsor that could be considered a compelling reason for not applying the Schedule 3 criteria.

(c)    The Tribunal's finding that the difficulties that could arise for the couple during a separation were "reasonably foreseeable at the time of entering the relationship and choosing to lodge an application in Australia at a time when the applicant did not have a valid visa" was not relevant in any way to a consideration of whether those difficulties could amount to compelling reasons for not applying the Schedule 3 criteria.

16    The primary judge was not satisfied that this ground of review was made out, and dismissed the application with costs. I note that the appellant was represented at the hearing by her solicitor.

17    As to particular (a), the primary judge found (at [14]) that the existence of a long-term relationship does not mean that the Tribunal must find there are compelling reasons for not applying the Sch 3 criteria. His Honour found that the Tribunal’s findings on this score (see [8] above) were open to it.

18    As to particular (b), the primary judge found (at [15]) that, on a fair reading of its Decision Record, the Tribunal took into account the sponsor’s condition and the impact of separation in respect of that condition.

19    As to particular (c), the primary judge (at [16] – [17]) did not accept the Tribunal had, in effect, introduced a requirement or gloss of “reasonable foreseeability” which limited the scope of compelling reasons to reasons that were not reasonably foreseeable.

The appeal

20    The notice of appeal to this Court contains two grounds:

1.    The Federal Circuit Court erred in failing to find that the Second Respondent ("the Tribunal") had erroneously concluded that the mere existence of a long term relationship, on its own and without more, would not be sufficient to establish compelling reasons for not applying the criteria in Schedule 3 to the Migration Regulations 1994 ("the Regulations").

2.    The Federal Circuit Court erred in failing to find that the Tribunal had applied a wrong test to the meaning of "compelling reasons" in cl 820.211(2)(d) in Schedule 2 to the Regulations.

21    At the hearing of the appeal, the appellant sought leave to introduce two further grounds of appeal:

3.    The Federal Circuit Court erred in not finding the decision of the Tribunal was legally unreasonable on the basis that there was no probative evidence to support the Tribunal’s finding that it was the evidence of the sponsor himself that the condition appeared to be responding to medication.

4.    The Federal Circuit Court erred in not finding that the Tribunal failed to comply with s 360 of the Act as it did not afford the applicant an opportunity to make submissions and give evidence at a hearing on the issues of whether the sponsor’s anxiety condition was responding to treatment and that effective treatment for his anxiety condition would be available for the foreseeable future.

22    The parties accept that I should consider the question of leave after hearing argument on all grounds, including those proposed, and determine the question of leave at the time of determining the appeal.

The appellant’s submissions

23    For the purposes of the Act, one person is the spouse of another if they are in a married relationship: s 5F(1). One of the requirements of a married relationship is that the parties to the marriage, being a marriage that is valid for the purposes of the Act, are in a genuine and continuing relationship: s 5F(2)(c). Relevantly to the present case, a married relationship is not defined by the length of the marriage itself.

24    Clause 820.211(2) applies to the appellant. One of the conditions she was required to satisfy in her particular circumstances was that she was the spouse of an Australian citizen. Her husband—the sponsor—is an Australian citizen. No issue arises as to the genuineness of the appellant’s and her husband’s marriage. But when seeking to demonstrate the existence of “compelling reasons”, the appellant sought to rely on the fact that her marriage to the sponsor was, on her argument, long-standing.

25    The appellant submits that the Tribunal erred in its understanding of the meaning of “compelling reasons” in cl 820.211(2)(d)(ii) by reasoning, erroneously, that the length of the marriage relationship is one of the essential requirements for the grant of the visa she sought and that, as such, could not be, of itself, a compelling reason for waiving the Sch 3 criteria. The appellant’s case is that the primary judge erred in not finding that the Tribunal so erred. This submission is directed to Grounds 1 and 2 of the appeal.

26    The appellant seeks to support Ground 2 of the appeal by an additional submission. The appellant submits that, in reasoning that the difficulties arising from a period of separation between the appellant and the sponsor (should the appellant’s present visa application be refused) were reasonably foreseeable at the time they entered into their relationship, the Tribunal put a gloss on what could be a compelling reason for the purposes of the waiver clause. In short, according to the appellant, a “compelling reason” is no less “compelling” if it is also something that could have been reasonably foreseen. So, in this second way, the appellant submits that the Tribunal applied a wrong test to the meaning of “compelling reasons”, and the primary judge erred in not so finding.

27    As to proposed Ground 3, the appellant submits that contrary to the assessment provided by the Tribunal at [40] of its Decision Record (see [9] above) concerning the sponsor’s medical condition, there was simply no basis in fact for the Tribunal’s conclusion that the sponsor had given evidence that his anxiety condition “appeared to be responding to medication”. The evidence which the sponsor gave to the Tribunal on this subject is:

A.    WITNESS SULTANA: Right, okay. She – her agent was taking care of all that at the moment but, look, I’m 57 years of age, I just turned 57 years of age, I don’t want to lose her now. It’s just – it’s going to be very hard for me and I don’t know what I’m going to do. I’ve been taking – I’ve been going to doctors, I’ve been taking anxiety tablets, I can’t sleep and it’s just, it’s just starting to get to me too now. I trusted her agent.

Q.    Can we just explore this a little bit that – about your anxiety. So when was this anxiety diagnosed?

A.    WITNESS SULTANA: Three weeks ago, four weeks ago. I can get a doctor’s certificate if required

Q.    What brought the anxiety on?

A.    WITNESS SULTANA: ..(Not transcribable) losing her.

Q.    It was diagnosed three weeks ago, were you—

A.    WITNESS SULTANA:     Four weeks ago, sorry.

Q.    --put on medication?

A.    WITNESS SULTANA: Yes.

Q.    Could you tell me what medication you’re on?

A.    WITNESS SULTANA: It’s called Artian, A-R-T-I-A-N, I think, how you pronounce it, I’m not too sure ..(not transcribable)..

Q.    What else did your doctor say, did he send you to a psychologist?

A.    WITNESS SULTANA: No, he told me just to take these and see how I go, and go see him frequently.

Q.    When are you next scheduled to go to the doctor?

Q.    WITNESS SULTANA: This week some time.

Q.    Is there anything else that you want to tell me about that?

A.    WITNESS SULTANA: I can feel it coming on now. I just don’t want to lose her, it’s just, it’s taken me so long to find someone decent and a loving partner, it’s just I don’t know, it’s just – I find it hard to stay in a good relationship until I found her, and I did find her now and I just don’t want to lose her.

Q.    Okay, all right. Is there anything further you want to put to me?

A.    WITNESS SULTANA: No, not really.

28    Later, the following exchange took place between the Tribunal and the appellant’s agent:

REPRESENTATIVE: There’s some – I just want to ..(not transcribable).. the illness side of things, that’s new to me about the medical issues that he’s suffering, would that be considered as a compelling reason as well?

MEMBER: I will consider it.

REPRESENTATIVE: Yes. Thank you.

MEMBER: I already indicated that, that’s why I asked a series of questions about it.

REPRESENTATIVE: Sure. Thank you ..(not transcribable)..

29    Further, the appellant submits, in support of proposed Ground 4, that if the efficacy of the sponsor’s treatment for anxiety was an issue touching on whether compelling reasons exists, this should have been brought to the appellant’s attention to enable her to address that matter.

Analysis

30    It is convenient to deal, firstly, with proposed Grounds 3 and 4.

31    I am satisfied that the sponsor did not give evidence to the Tribunal that his anxiety condition appeared to be responding to medication. I hasten to add that the Minister does not suggest the contrary, although he does seek to justify the finding that the sponsor’s anxiety condition was responding to medication (see at [34] below).

32    The sponsor’s response to medical treatment was obviously an important matter in the Tribunal’s consideration, because:

(a)    the Tribunal had accepted that the appellant and the sponsor had developed a very close and emotionally supportive relationship;

(b)    the Tribunal accepted that the sponsor had a medical condition that may be exacerbated by stress and that separation from the appellant—his partner—may well trigger that condition;

(c)    nevertheless, the Tribunal was not satisfied that the sponsor would suffer emotional or physical hardship if the appellant were required to return to China in order to apply for her visa.

33    So far as the sponsor’s anxiety condition is concerned, the last conclusion only appears to be supportable by the Tribunal’s acceptance that the sponsor appeared to be responding to medication and that this treatment would be available to him in the foreseeable future— presumably while the appellant was in China reapplying for her visa.

34    I am persuaded that the Tribunal’s conclusion on this particular issue is not simply based on an erroneous finding of fact, but on a fact that is completely unsupported in the evidence before the Tribunal. It was not rational for the Tribunal to conclude, without any evident basis, that the sponsor’s anxiety condition appeared to be responding to medication. The Minister argues that it was open to the Tribunal to conclude that the sponsor’s condition was responding to his current treatment given, firstly, that there was no evidence that the sponsor’s medication had been increased; secondly, the sponsor had not been referred to a psychologist; and, thirdly, the sponsor was visiting his doctor frequently. The Minister also submitted that the fact that the sponsor’s doctor had not suggested additional or different treatment demonstrated that a probative basis existed for the Tribunal’s finding. I reject these submissions for the simple reason that they do not represent the Tribunal’s finding or its reasoning. The Tribunal ascribed a specific source for its finding—evidence given by the sponsor. The Tribunal either misunderstood the sponsor’s evidence or, if it did not, it simply speculated that the sponsor was responding to treatment.

35    I am persuaded that the Tribunal’s finding in this regard was material to its overall conclusion that compelling reasons to waive the Sch 3 criteria did not exist. It cannot safely be concluded that the Tribunal would have arrived at the same overall conclusion had it considered this issue absent the erroneous and unsupported finding it made.

36    I accept therefore that the Tribunal’s decision was legally unreasonable and thereby affected by jurisdictional error: Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [19] and [91]-[93]; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [71]-[72]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [56]; SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [44]-[56]; ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (ABA15) at [52]-[59]. Such error may exist where unreasonableness is demonstrated in relation to findings “on the way” to a final conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132].

37    In addition, s 360 of the Act afforded the appellant the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The issue of the sponsor’s anxiety condition was not an issue arising in relation to the delegate’s consideration of whether “compelling reasons” existed. Although the existence of the sponsor’s anxiety condition was before the Tribunal, it could not reasonably be said that the appellant was on notice that the sponsor’s response to medical treatment for that condition was an issue and, in particular, that a positive response to treatment constituted a reason for not finding that compelling reasons existed for waiving the Sch 3 criteria. The appellant should have been put on notice of that issue: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [33]-[43]; Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 at [52]-[58]; ABA15 at [60]-[71]. I am satisfied, therefore, that the Tribunal failed to comply with s 360 of the Act.

38    Should leave be granted to the appellant to amend her notice of appeal to raise these grounds? The reason why leave is required is because neither of the new grounds was raised before the Circuit Court.

39    The Minister opposes leave for a number of reasons. First, he submits that the application to amend is made late and without an adequate explanation as to why the new grounds were not raised below. Secondly, and relatedly, he submits that the circumstances indicate that a forensic choice was taken by the appellant not to pursue the new grounds before the Circuit Court. Thirdly, he submits that the new grounds also depend on the appellant adducing fresh evidence (the transcript of the hearing in the Tribunal). Fourthly, he submits that he suffers some degree of prejudice (the expense of checking the accuracy of the transcript of the hearing in the Tribunal). In the course of oral argument, the Minister also referred to case management considerations and the fact that the appeal has become more complicated and more costly than it otherwise would have been because of the appellant’s reliance on the new grounds. Fifthly, he submits that the new grounds are without merit.

40    Contrary to the Minister’s submissions, I am satisfied that leave to rely on Grounds 3 and 4 should be granted.

41    In Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, Griffiths and Perry JJ described the principles guiding the determination of whether an appellant should be permitted to raise in an appeal a ground not considered below as “well settled”, a view with which Mortimer J (at [55]) agreed. At [19], Griffiths and Perry JJ referred to the observations of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]:

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

42    So far as the present appeal is concerned, I accept, of course, that the appellant was legally represented before the Circuit Court. It is to be expected that, with the benefit of competent legal advice and assistance, an applicant seeking judicial review of an administrative decision will identify all grounds that are appropriate to be raised in respect of the relief sought. That expectation has not been met in the present case. But I am not prepared to find, as the Minister contends, that a forensic choice (in the sense of a positive and conscious decision) was made not to run Grounds 3 and 4 before the Circuit Court. Mr Jones, who is the appellant’s solicitor, has deposed that he simply had not considered the new grounds when he drafted, and subsequently drafted amendments to, the originating process filed in the Circuit Court. The new grounds were only identified when counsel was briefed to appear for the appellant in this appeal. This is not a cogent reason for allowing the new grounds to be raised for the first time now. There are, however, other considerations which support the granting of leave.

43    First and foremost, the new grounds are well-taken, despite the fact that their significance may not have been apparent to the appellant’s solicitor when judicial review was sought before the Circuit Court. To foreclose the appellant from running these grounds now would result in real injustice.

44    Secondly, the considerations that inform “the interests of justice” in a public law case are not necessarily the considerations that apply when the case is one between private parties. What is at stake in the present case is the lawfulness of the exercise of public power affecting the interests of an individual. In ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30], Mortimer J observed:

30    ... Ultimately, this Court's function on appeal from a decision invoking the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process.

45    Thirdly, I am not persuaded that the Minister suffers substantial prejudice by allowing the new grounds to be run now. This is not a case where the new grounds are susceptible of being met by new evidence which the Minister could have adduced in the Circuit Court proceeding.

46    Fourthly and relatedly, although the new grounds rely on evidence that was not before the primary judge (the transcript of the hearing in the Tribunal), I do not accept that this stands as a substantial impediment to leave being granted. The transcript of the Tribunal hearing is simply a record of what occurred in the very decision-making process under review: Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [35]. As Conti J observed in NASA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 653 at [11], the transcript of a Tribunal hearing is not, in reality, “further evidence” as normally understood by s 27 of the Federal Court of Australia Act 1976 (Cth).

47    Fifthly, I do not accept that checking the transcript of the hearing in the Tribunal or the cost thereof represents substantive prejudice so far as the Minister is concerned.

48    Sixthly, I take into account the fact that the Court is exercising appellate, not original, jurisdiction. I accept that the Court should not permit too readily the running of new arguments not taken below, lest the trial and appellate processes be undermined by effectively rendering the hearing at first instance “irrelevant”. Even so, the points raised by Grounds 3 and 4 in the present case are readily established by recourse to the transcript of the Tribunal hearing and, as I have said, are well-taken.

49    For these reasons, I am satisfied that leave to rely on Grounds 3 and 4 should be granted. Further, leave should be granted to rely on Mr Jones’ affidavit which places the transcript of the Tribunal hearing before the Court on this appeal.

50    I now turn to Ground 1. I am not persuaded that this ground of appeal is made out. Although [37] of the Tribunal’s Decision Record could have been expressed more clearly, I am satisfied that, properly understood, the Tribunal was directing its attention to whether a long-standing relationship could constitute “compelling reasons” for the purposes of cl 820.211(2)(d)(ii). In the course of that consideration, the Tribunal noted that a genuine relationship was an essential requirement for the grant of the visa and that, in the circumstances of the case before it, satisfying that essential requirement did not amount to a compelling reason. The Tribunal then turned separately to consider whether, in the circumstances of this case, a long-standing genuine relationship would be a compelling reason. The Tribunal did not make an explicit finding that the appellant’s and sponsor’s relationship was long-standing but, at the commencement of this section of its reasons, it did express its acceptance that the appellant and the sponsor had been married for more than four years and that the relationship was a “committed” one. I am satisfied that the Tribunal addressed whether these facts constituted a compelling reason to waive the Sch 3 criteria. I am satisfied that the Tribunal did not conclude that the mere existence of a long term relationship could not be a compelling reason for the purposes of cl 820.211(2)(d)(ii). The primary judge understood the Tribunal to be addressing the question of whether a long-term relationship could amount to a compelling reason. His Honour was also satisfied that the finding made by the Tribunal was directed to the circumstances of the case before it and that its findings, on the evidence, were open to it. These findings by the primary judge do not reveal appealable error.

51    As I have noted, the appellant raises two contentions in support of Ground 2 of the appeal. The first contention is the one discussed immediately above. The second is that the Tribunal placed an impermissible gloss on the meaning of “compelling reasons”—if a consequence of the visa applicant’s conduct is foreseeable, it cannot be a compelling reason for the purposes of cl 820.211(2)(d)(ii).

52    I am not persuaded that the Tribunal approached the meaning and application of “compelling reasons” in the rigid fashion suggested by the appellant. In the passage of its Decision Record quoted at [12] above, the Tribunal recognised and accepted that a period of separation for the appellant and the sponsor would present difficulties for them. Its reference in that passage to reasonable foreseeability was no more than an observation that these difficulties could not have been unexpected at the time that the appellant and the sponsor entered into their relationship, given that the appellant did not have a valid visa at that time. That observation was pertinent and was no more than part of the mix of considerations the Tribunal took into account in reaching its evaluation as to whether compelling reasons to waive the Sch 3 criteria existed.

53    Before the primary judge, the appellant placed reliance on certain observations made by Whitlam J in Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408; 63 ALD 65. In that case the applicant arrived in Australia on a visa that included a condition that, after entering Australia, she was not entitled to be granted a substantive visa other than a protection visa while she remained in Australia. This condition could be waived in the circumstances prescribed by reg 2.05(4). Regulation 2.05(4)(a) provides:

For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

(a)    since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i)    over which the person had no control; and

(ii)    that resulted in a major change to the person's circumstances; …

54    The applicant in that case sought a waiver of the visa condition on the basis that, following the death of her husband (who died approximately seven months before the applicant entered Australia), and since arriving in Australia, her emotional state had declined such that she needed to spend a longer time with her daughters, whom she was visiting.

55    A delegate of the Minister refused to waive the visa condition. In expressing reasons for that decision, the delegate referred to a passage in the Procedures Advice Manual which stated:

Regulation 2.05(4)(a) gives effect to the policy intention that condition 8503 may be waived after the visa holder enters Australia if circumstances now exist that could not have been foreseen when the visa was granted (and condition 8503 was attached), and which are beyond the control of the visa holder, where compelling and compassionate reasons exist for granting the waiver.

56    At [8], Whitlam J said:

8    It will be observed that, in the second paragraph of the excerpt I have extracted from the decision record, this paragraph of the PAM has been paraphrased. (Indeed, the migration agent appears also to have had regard to its language in settling the first “ground” of the waiver request in the applicant's statutory declaration.) Counsel for the applicant submits that reg 2.05(4) does not require that any change in a person's circumstances “could not have been foreseen”. I accept this submission. Foreseeability represents, in my opinion, an entirely unwarranted gloss on the plain meaning of the regulation. The solicitor for the respondent submits that, even if that be so, the delegate plainly considered that the change in the applicant's mental well-being had not developed since the visa was granted. I cannot accept that submission. I have highlighted in the excerpt from the decision record the way that the applicant's emotional state was dealt with. It seems to me that the officer then puts that aspect of the applicant's circumstances aside and proceeds to deal with the physical difficulties travel poses for the applicant before finding “no evidence that Mrs Schaap is now unfit to travel or that she has an illness or medical condition that has developed since her arrival in Australia.”

57    In this passage, his Honour was recognising that the Procedures Advice Manual misstated the legal requirements for the application of reg 2.05(4). However, his Honour was not saying that, when considering whether “compelling and compassionate circumstances” existed, the delegate could not take into account the fact that a relevant circumstance or change may have been foreseeable. His Honour’s point was that, having considered that the decline in the applicant’s emotional state was foreseeable, the delegate then put that matter out of mind. At [10], his Honour said:

10    I am, of course, conscious of the need not to read the reasons of an administrative decision-maker with an eye too finely tuned for error. In the particular circumstances of this case, it is also true that the material presented on behalf of the applicant, especially the letter from Dr Gahan, hardly suggests an overwhelmingly strong case of a major change in her circumstances. However, the applicant is entitled to be confident that the respondent or his delegate has, in fact, considered whether or not the accepted change in her mental well-being meets the requirements of reg 2.05(4)(a). ...

58    In the present case, the Tribunal did not put out of mind the effect that separation would have on the appellant’s and sponsor’s relationship. As I have recorded, the Tribunal accepted that separation would present difficulties. What it did not accept was that, on the evidence, those difficulties would be sufficient to amount to a compelling reason to waive the Sch 3 criteria. The appellant has not established judicially reviewable error in that finding.

59    At [16]-[17], the primary judge held:

16    In relation to ground 1(c), Mr Jones, solicitor for the applicant took the Court to the reasoning of the learned Whitlam J in Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408 and in particular at [8] and submitted that the Tribunal in the present case had introduced a gloss to the criteria requiring that the circumstances could not have been foreseen. The Tribunal's reasons are not to be read with a keen eye for error. Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408 is distinguishable given the reasons of the Tribunal in that particular case which was summarised at [5] and highlighted in bold by the learned judge.

17    In the present case, I do not accept that the Tribunal's reference to the circumstances that the separation may have been foreseeable as a result of the applicant not holding a substantive visa was introducing a requirement or gloss to the criteria. Rather, the Tribunal was making a finding of fact that was open to the Tribunal in its consideration of whether the circumstances met the relevant criteria. No jurisdictional error as alleged in ground 1(c) is made out.

60    The primary judge did not err in finding that the Tribunal had not introduced a requirement or gloss when considering whether “compelling reasons” existed in the present case. Therefore, Ground 2 of the appeal fails on the second basis advanced by the appellant.

Disposition

61    As I have recorded, leave to amend the notice of appeal to include Grounds 3 and 4 should be granted. Similarly, leave to rely on Mr Jones’ affidavit should be granted. The appeal should be allowed in part. Given that the appeal only succeeds on grounds that were not raised before the Circuit Court, and fails in relation to the grounds that were raised, I will not disturb the order for costs made by the primary judge. As to the costs of the appeal, the Minister accepts that if the appeal succeeds on Grounds 3 and 4 then costs should follow the event.

62    In the course of oral argument, the appellant stated her preparedness to pay the Minister’s costs incurred in checking the transcript of the Tribunal hearing. I am not persuaded that I should make such an order. Had the new grounds been taken before the Circuit Court, I assume that the Minister would have considered it to be appropriate to check the transcript, as he did for the purposes of this appeal. The fact that the new grounds are raised now, rather than before the Circuit Court, does not result in the Minister incurring costs he would not have incurred had the grounds been raised in a timely manner. He has failed on those grounds.

Associate:

Dated:    31 August 2018