FEDERAL COURT OF AUSTRALIA

Gauchan v Minister for Home Affairs [2018] FCA 1875

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’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

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”): Gauchan v Minister for Home Affairs [2018] FCCA 1433, dismissing an application for review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 12 December 2017 affirming a decision of a delegate of the first respondent (“Minister”) refusing the appellant a Partner (Temporary) (Class UK) visa.

2    By reason of the fact that he was not the holder of a substantive visa at the time of the visa application, by cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (“Regulations”), the appellant was required to satisfy, relevantly, criterion 3001 in Sch 3 to the Regulations unless the Minister was satisfied that there were compelling reasons for not applying those criteria.

3    There was no dispute that the appellant did not satisfy criterion 3001 in Sch 3 because the visa application was not made within 28 days of the “relevant day”. After considering various matters raised by the appellant, the Tribunal was not satisfied that the requisite “compelling reasons” existed for not applying criterion 3001.

Background facts

4    The facts and history of the matter are summarized in the FCCA judge’s reasons, as follows:

[2]    The applicant is a citizen of Nepal and first arrived in Australia on 5 July 2007 on a Student visa (subclass 572). The applicant obtained a number of Student visa extensions and on 26 February 2014, the applicant’s student visa was cancelled. That was the date of the applicant’s last substantive visa. That decision was the subject of challenge before a differently constituted Tribunal and the decision of the delegate was affirmed on 5 September 2014. The associated Bridging E visa (subclass 050) ceased on 14 October 2014. The applicant was then unlawfully in Australia when he lodged the application for a Partner visa on 17 October 2014.

[3]    On 14 October 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate considered the requirements of subclause 820.221 (2) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), and that the applicant needed to satisfy the criteria in Schedule 3, and as the applicant’s last substantive visa expired in February of 2014, the delegate had to consider whether there were compelling reasons not to apply the schedule 3 criteria and the delegate found there were not.

[4]    The applicant applied for review of the delegate’s decision to the Tribunal. The applicant was invited by letter dated 21 September 2017 to attend a hearing on 5 December 2017. The applicant appeared on that date to give evidence and present arguments, and evidence was also given by his sponsor on that date. On 12 December 2017, the Tribunal delivered reasons affirming the decision of the delegate. The Tribunal found that the last substantive visa ceased on 26 February 2014 and that accordingly, the Tribunal had to consider whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found there were not compelling reasons to cause the Tribunal not to apply the Schedule 3 criteria in the applicant’s case and found the applicant did not meet cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review.

5    At [6] of his Honour’s reasons, the FCCA judge noted that the Tribunal had accepted that the appellant and the sponsor had been in a genuine relationship for over three years. The Tribunal had found, at para 9 of its decision record, that the appellant and sponsor married in 2014 and held a traditional wedding in Australia in 2017. The FCCA judge then continued:

The Tribunal correctly noted that a genuine spousal relationship is a basic requirement for a Partner visa application. The Tribunal found the parties had failed to further satisfy the Tribunal in this case that the longevity of the relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

6    At [9] of his Honour’s reasons, the FCCA judge addressed the Tribunal’s finding to the effect that it was not satisfied that the separation of the appellant and the sponsor would constitute a compelling reason for not applying the Sch 3 criteria. The FCCA judge rejected a submission that there was no intellectual engagement with the appellant’s case on that ground.

7    At [10] of his Honour’s reasons, the FCCA judge addressed the Tribunal’s reasoning on the subject of financial hardship and rejected an argument that it was not reasonable for the Tribunal to think that the appellant may be employed while offshore and would be able to assist the sponsor, where there was no claim by the appellant that he could not obtain employment in Nepal.

8    At [11] of his Honour’s reasons, the FCCA judge addressed the Tribunal’s finding to the effect that it was not unreasonable to think that the sponsor’s family would assist the sponsor if the appellant was unable to do so. The FCCA judge concluded that it was open to the Tribunal to make that finding on the basis of evidence that the sponsor was financially supported by her family prior to her marriage to the appellant.

Appeal to this Court

9    The grounds of appeal stated in the notice of appeal are that the FCCA judge:

(1)    flatly denied procedural fairness to the appellant;

(2)    did not allow the appellant’s counsel to make their submissions at the hearing and acted as a party to the application, not as an independent judge;

(3)    did not provide reasonable and proper opportunity to the appellant’s counsel to make full submissions during the hearing;

(4)    appeared to have made up his mind to dismiss the application prior to listening to the appellant’s submissions, which establishes an apprehension of bias;

(5)    made error by failing to provide reasons for his decision and thus limiting the appellant’s right to appeal;

(6)    dismissed the fact that the Tribunal hearing was unreasonable in making findings regarding hardship without evidence, thus disagreeing that the tribunal engaged in a “ticker box” approach; and

(7)    made an error by considering the application on its merits rather than confining to jurisdictional error.

10    The appellant did not file written submissions in support of his appeal. He appeared at the hearing of the appeal with the assistance of a Nepali interpreter.

Appellant’s submissions

11    The appellant submitted that there were compelling reasons for not applying criterion 3001, being the fact that the relationship between him and his de facto spouse was not accepted by their respective families because he is an indigenous Nepali and, accordingly, if they were to return to Nepal, they could not stay with either family and would be homeless. The appellant also drew attention to the financial obligations, including a car loan, assumed by him and his de facto spouse in Australia.

Minister’s submissions

Appeal grounds 1 to 4

12    The Minister submitted that these grounds raised complaints about the FCCA judge’s conduct of the hearing. Counsel for the Minister, Mr T Reilly, contended that there is nothing in his Honour’s judgment that supports any of these grounds, and noted that the appellant has not filed a transcript of the hearing. Accordingly, the Minister submitted, these grounds must fail for lack of evidence.

Appeal ground 5

13    As to ground five, the Minister submitted that it is contradicted by the FCCA judge’s ’reasons for judgment, which provide reasons for dismissing the application to the FCCA.

Appeal ground 6

14    The Minister submitted that ground six appears to take issue with the FCCA judge’s rejection of ground four of the application to the FCCA at [13]-[16] of his Honour’s reasons, but does not identify any error by his Honour. That portion of the FCCA judge’s reasons states:

[13]    In relation to ground 4, Mr Young submitted that the Tribunal had in paragraphs 23 and 24 engaged in a “tick-a-box” exercise and that the Tribunal’s reasons did not reflect an active and intellectual engagement with the overall circumstances in combination, taking into account the Tribunal’s reference to there being a genuine relationship and the reference to there being a level of hardship and also the financial impact from separation.

[14]    The Tribunal’s reasons are to be read as a whole without a keen eye for error. It is patent in the circumstances of the present case that the Tribunal expressly referred to having considered the circumstances individually and as a whole and having done so, the Tribunal was not being satisfied that the circumstances constitute compelling reasons for not applying the Schedule 3 criteria. That was a correct application of the relevant test by the Tribunal. It was open to the Tribunal and does not reflect any error as alleged in ground 4.

[15]    Further, in paragraph 24 of the Tribunal’s reasons, the Tribunal made express further reference to having considered the parties’ circumstances individually and as a whole and found ultimately that the applicant was unable to satisfy the Tribunal that the reasons provided, taken either individually or together, amounted to compelling reasons to cause the Tribunal to not apply the Schedule 3 criteria in the applicant’s case. The Tribunal’s reasons reflected a consideration of the applicant’s claims and there is no basis in the circumstances of the present case to infer that the Tribunal did not engage in the cumulative consideration that the Tribunal expressly referred to.

[16]    It is for the applicant to advance whatever evidence or argument he wished and for the Tribunal to decide whether the claim has been made out. The Tribunal’s reasons made plain that the Tribunal considered the applicant’s circumstances and whether they showed compelling reasons both individually and cumulatively. The “tick-a-box” proposition has no proper basis and there is nothing on the face of the Tribunal’s reasons to suggest the Tribunal did other than approach the review in accordance with the statutory requirements giving genuine and real consideration to the claims advanced. No case of bad faith has been advanced. The proposition that there was a box-ticking exercise is entirely inconsistent with the reasons of the Tribunal. No jurisdictional error as alleged in ground 4 is made out.

15    To the extent that the ground is repeated on appeal, the Minister contended that it fails for the reasons given by the FCCA judge, namely, that it is not made out by a fair reading of the Tribunal’s decision, which indicated that the Tribunal considered the appellant’s claims and circumstances in considering whether there were “compelling reasons”.

Appeal ground 7

16    Ground seven appears to suggest that the FCCA judge engaged in merits review rather than considering whether there was any jurisdictional error in the Tribunal’s reasons. The Minister submitted that this contention is contradicted by the substance of his Honour’s reasons.

Consideration

Appellant’s oral submissions

17    The appellant’s submissions were not directed to whether the FCCA judge made any appellable error, or whether the Tribunal had made any jurisdictional error. Rather, the appellant sought to explain why there were compelling reasons for not applying criterion 3001.

18    The Tribunal had explained, at para 15 of its decision record, that the expression “compelling reasons” is not defined for the purposes of the Sch 3 criteria. The Tribunal said:

The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

19    Counsel for the appellant in the FCCA did not suggest that the Tribunal had misinterpreted the expression “compelling reasons”.

20    As appears below, the Tribunal addressed each of the issues raised by the appellant in this Court and found that they did not amount, either individually or as a whole to “compelling reasons”. In particular, paras 17-24 of the Tribunal’s decision record state:

17.    The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the relationship. While the Tribunal accepts that the applicant and the sponsor have been in a genuine relationship for over three years, a genuine spousal relationship is the basic requirement for a partner visa application, and the parties have failed to further satisfy the Tribunal, in this case, that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

18.    The applicant didn’t lodge the partner visa in Nepal because he entered a de facto relationship before marriage and has a strong and well-founded fear of social and familial stigma, harassment and abuse. The parties and their families practise Hinduism religions. The religion is very strict and the parties would be ostracised by society for entering into a de facto relationship before marriage. The parties have suffered because of their relationship and are discarded by society and this brought instability into their lives. They accept this and have decided to move forward. The applicant told the Tribunal that initially his family didn’t accept his marriage to the sponsor however, they now accept the marriage. His concern is that should he return to Nepal, his community would retaliate against him and his family, primarily because he lived with the sponsor before marriage. The applicant said that the parties’ marriage has always been accepted by the sponsor’s family and the parties’ have a good relationship with the sponsor’s family. He said that the sponsor’s siblings will be visiting the parties and her parents visited the parties on two different occasions. He stated that prior to the parties’ marriage the sponsor was supported financially by her family. The applicants evidence was vague and appeared speculative; because the applicant’s claim is unsubstantiated, the Tribunal is unable to reasonably conclude that a specific threat exists to the applicant’s welfare should he return to either Nepal. Accordingly, the Tribunal has not been satisfied that any claimed threat to the applicant or his family is a reason why in this case the Tribunal should not apply the Schedule 3 criteria.

19.    Another claim by the applicant is that he didn’t lodge the partner visa in Nepal because of his fear of separation from the sponsor whom he loves. Also the processing times for an offshore application ranges between ten to twenty months and the parties would suffer psychologically, emotionally and physically if separated for this time. The Tribunal understands that the parties’ separation may present a level of hardship and challenges if they are separated from one another for any extended period time. This is a particularly common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian partner (or eligible person). Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, the parties have not satisfied the Tribunal that their separation constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.

20.    The parties would suffer financial hardship as they are struggling to meet their daily expenses. The parties are struggling to clear loans they obtained from friends and the sponsor would suffer financial hardship and will not be able to pay the loans. The applicant is working and supporting the sponsor and will not be able to provide for her daily needs. As a result the sponsor will suffer psychologically, physically and financially. At the Tribunal hearing the applicant provided evidence that he paid $10,898 off credit card debts. He said the debts accumulated because of a gambling habit. The applicant gave evidence that the sponsor is a qualified hairdresser. She is currently employed in another industry and earns about $500 weekly. He said that he is also working and earning $1,000 to $1,200 weekly. Other information before the Tribunal is that the parties’ expenses are $800 fortnightly in rent; $500 monthly car loan repayments plus $100 per month for insurance. In addition the parties pay for electricity and general expenses. The sponsor said that she would find it difficult to meet these commitments should the applicant return to Nepal. The Tribunal is aware that the visa applicant’s departure from Australia may present financial challenges for the sponsor. However the Tribunal considers that it is not unreasonable to think that the applicant may be employed while offshore and would be able to assist the sponsor or that the sponsor’s family may offer her assistance during any separation from the applicant. The parties have not satisfied the Tribunal that these circumstances constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.

21.    The applicant told the Tribunal that the parties want to have a child. He provided a document about an imaging service the sponsor had undergone. The Tribunal asked about the statement in the document ‘study declined’. He said that the parties had been advised that because the parties were in their first year of trying to conceive, negative results were quite normal. However if this continued they would need to investigate the matter. The applicant stated that most of his family members and friends have children. He told the Tribunal that he is thirty four years old and the sponsor is thirty years old and in their culture the parties are considered quite old. He stated that in the parties’ culture, most couples would have children much younger. He was concerned that some family members were also having difficulty conceiving. While the Tribunal is sympathetic to the parties experience in not conceiving, as yet, it is not satisfied that the age of the parties and its relevance to the sponsor becoming pregnant constitutes ‘compelling reasons’ for not applying the Schedule 3 criteria.

Other consideration

22.    The applicant’s migration agent drew the Tribunal’s attention to his difficulty in advising his clients about what “constitutes exceptional circumstances” or whether the assessment is “subjective” or “objective” because “there is not consistency in AAT decisions”. To support his statement he provides examples of AAT decisions. While the Tribunal can understand the agent feeling perplexed about these matters, it assures him that each review the Tribunal undertakes is decided on the merits of the individual case. And as each review presents with different circumstances, Tribunal decisions will vary according to the merits of each individual review. Currently, the applicant does not satisfy the Schedule 3 criteria because he did not hold a substantive visa within the relevant timeframe and the Tribunal is not satisfied that the parties’ circumstances constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.

23.    Having considered the evidence individually and as a whole the Tribunal is not satisfied that there are circumstances that constitute ‘compelling reasons’ for not applying the Schedule 3 criteria.

24.    The Tribunal considered the parties’ circumstances, individually and as a whole with the broadest regard given to every aspect of their lives as presented in evidence. Ultimately, the applicant was unable to satisfy the Tribunal that the reasons provided, taken either individually or together, amounted to compelling reasons to cause the Tribunal to not apply the Schedule 3 criteria in the applicant’s case. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii) of the Regulations.

21    While I readily understand why the appellant maintains that there are compelling reasons for not applying criterion 3001, the question for this Court is whether there has been any appellable error by the FCCA or jurisdictional error by the Tribunal. The appellant’s submissions do not demonstrate or indicate any such error.

Appeal grounds 1 to 4

22    I accept the Minister’s submissions. I also note that the FCCA judge’s reasons are expressed to address various submissions made by Mr Young of counsel on behalf of the appellant. Without any evidence to the contrary, those reasons indicate that the appellant’s counsel was allowed to make submissions which the FCCA judge addressed in his Honour’s reasons.

Appeal ground 5

23    The Minister’s submission is correct.

Appeal ground 6

24    I accept the Minister’s submission. The Tribunal’s reasons are set out above.

Appeal ground 7

25    As the Minister submitted, the FCCA judge’s reasons, especially at [12] and [16], evidence that his Honour directed himself to whether jurisdictional error as alleged was made out, and not to the merits of the case.

Conclusion

26    The appeal must fail. Costs should follow the event.

Associate:

Dated:    29 November 2018