FEDERAL COURT OF AUSTRALIA

Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The appellant appeals from a judgment and orders of the Federal Circuit Court of Australia (FCCA) given on 13 February 2019. The FCCA’s decision is reported as Chhetri v Minister for Immigration and Border Protection [2019] FCCA 298. The primary judge dismissed the appellant’s judicial review challenge to a decision dated 31 March 2017 by the Administrative Appeals Tribunal (AAT). The AAT affirmed an earlier decision of the Minister’s delegate to refuse to grant the appellant a Partner (Temporary) (Class UK) Subclass 820 visa (visa).

2    For the following reasons, the appeal will be dismissed, with costs. As will emerge, however, the case is one which warrants close attention by the Minister and his advisors with a view to determining whether discretionary powers should be exercised with particular reference to the harsh consequences for the appellant’s wife and Australian-born child if the appellant is required to return to Nepal in order to reapply for a visa.

Summary of background facts

3    The appellant is a citizen of Nepal. He has a lengthy migration history. He first arrived in Australia in July 1999 holding a Student visa (subclass 560). In 2001, he was granted a Vocational Education and Training Sector visa (subclass 572) which was later cancelled on 9 October 2002. He applied for a protection visa on 18 October 2002. His application was refused on 7 November 2002 and his subsequent review application to the then Refugee Review Tribunal was unsuccessful on 22 April 2003. From either 9 October 2002 or 18 November 2002 to 18 May 2015 (the difference is not material to the proceeding), the appellant was an unlawful non-citizen. He was granted a bridging visa after he lodged his partner visa application on 14 May 2016.

4    The appellant’s partner visa application was treated as an application for a subclass 820 visa (which at that time was the only available subclass). The partner visa application was based upon his relationship with his sponsor, who is an Australian permanent resident. She is also a citizen of Nepal and is a general practitioner practising in a rural town in Australia. The couple were married on 5 September 2015 and they had their first child in January 2017, shortly before the hearing in the AAT on 8 March 2017.

5    In circumstances where the appellant did not hold a substantive visa when he applied for the subclass 820 visa, he had to meet the requirements of cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) at the time the partner visa application was lodged. Thus he was required to satisfy what are commonly referred to as the “public interest” criteria, unless the Minister was satisfied that there were compelling reasons for not applying those criteria (see items 3001, 3003 and 3004 of Sch 3 to the Regulations).

6    On 6 May 2016, the Minister’s delegate refused the partner visa application on the basis of the delegate’s lack of satisfaction that the appellant met the criteria for the grant of either a subclass 820 visa or a subclass 801 visa when his application was lodged. In particular, in the case of the subclass 820 visa, the delegate was not satisfied that the appellant met the public interest criteria, nor was the delegate satisfied that there were compelling reasons not to apply those criteria.

7    As noted above, the AAT affirmed the delegate’s decision. The central issue was whether or not there were compelling reasons for waiving the public interest criteria. The AAT noted that the appellant claimed that there were compelling reasons because of the mental and physical hardship and detriment for him, his wife and their child if he had to return to Nepal to lodge his application off shore. He claimed that his wife’s health would be affected because they were the only Nepalese in the town where they lived and where she practised as a GP. He said that he supported her and she relied upon him. He claimed that she would not be able to cope without him because she “works hard, relies on him, the house is big and they have a young baby”.

8    The AAT concluded that the appellant’s wife had the “option” of remaining in the rural town where she worked. The AAT member acknowledged that it would be difficult and not ideal for the wife to have to work as a single mother, nevertheless “there are many single mothers who have to work and look after their children and household”. It was also noted that, around that time, the sponsor’s mother and brother would be in Australia for three months to provide assistance.

9    The AAT rejected the appellant’s claim that if his wife accompanied him back to Nepal the loss to the rural community constituted compelling reasons. The AAT reasoned at [32] that there were three medical practices and a hospital in the rural town and others in nearby towns. The AAT member added that the sponsor had only been working there for four years.

10    As to the effects on the couple’s young Australian child, the AAT noted at [33] that the family did not need to be separated if they all returned to Nepal to await the visa processing if they preferred or, alternatively, the sponsor and the child could visit the appellant during the temporary separation. Reference was also made to the availability of modern technology such as Skype, to facilitate contact.

11    The AAT member explained why she rejected other matters which were raised by the appellant under the rubric of “compelling reasons”. The AAT member emphasised at [43] of the decision record that the appellant’s unlawful status for such a long period as 13 years weighed against him. Indeed, it is fair to say that this was the predominant factor in the member’s conclusion that there were no compelling reasons.

12    The core of the AAT’s reasons for finding that there were no compelling reasons are reflected in [45] and [46] of its decision record:

45.    The tribunal has considered the reasons put forward as compelling. The tribunal does not consider in this case that the existence of a child amounts to compelling reasons. The applicant and sponsor are both from Nepal and they could visit Nepal together as a family, while the applicant lodges an offshore application. They both have their own family in Nepal too. Further, the tribunal considers that the applicant and sponsor were both aware that the applicant had been unlawful, was without a visa and did nothing about it, weighs against the applicant. The applicant and sponsor have made decisions about their lives, finances, accommodation in the full knowledge that the applicant had been without a visa in Australia for many years and that adverse consequences may follow. The applicant however, did not regularise his status or return to Nepal to apply offshore. Their circumstances do not evoke sympathy or compelling reasons not to apply Schedule 3 criteria.

46.    Even with a newborn, the sponsor being a doctor and hardship the family may suffer if separated or they return to Nepal, the tribunal does not accept there are compelling reasons not to apply Schedule 3. The tribunal has also considered their circumstances and reasons cumulatively, but it is not satisfied these are compelling reasons not to apply Schedule 3 criteria.

13    As to the appellant’s submission that the PAM policy was ultra vires because it restricted the discretion and facilitative intent of s 48 (which submission is expressly referred to by the AAT in [43] of its decision record), the AAT said at [44] that it had not had regard to the policy:

44.    The tribunal is mindful it must consider whether there are compelling reasons for not applying Schedule 3. The tribunal accepts that consideration is unfettered. The tribunal has not had regard to the policy in that regard.

The FCCA proceedings summarised

14    In the FCCA, the appellant claimed that the AAT fell into jurisdictional error because:

(a)    the AAT applied a policy which was ultra vires the Migration Act 1958 (Cth) (Act) and Regulations because the policy underlying the public interest criteria in Sch 3 fettered the AAT’s consideration whether or not there were “compelling reasons”; and

(b)    the AAT misapplied the public interest criteria by failing to give proper and genuine consideration to all relevant facts and circumstances applying to the appellant.

15    The primary judge rejected the appellant’s claim that the AAT’s decision was informed by a “policy” (which the appellant said was ultra vires). His Honour drew attention to the fact that at [44] of the AAT’s decision record, the AAT expressly stated that it had not had regard to the “policy” and that it accepted that consideration of whether or not there were “compelling reasons” for not applying Sch 3 was unfettered. The primary judge viewed the case as one where the appellant invited the FCCA to find that the AAT’s disavowal of the relevance of “policy” should not be accepted largely because other aspects of the AAT’s reasoning reflected parts of the Procedures Advice Manual (PAM 3).

16    The appellant’s contention that the “policy” in PAM 3 was ultra vires was summarised by his Honour as follows:

(a)    s 48 of the Act is facilitative and permits the making of an application for a partner visa being made on shore by a person who had previously applied for, and been refused, a visa;

(b)    the policy in PAM 3 was “restrictive” in that it focussed on why the visa should not be granted; and

(c)    [40] to [46] of the AAT’s decision record revealed that the AAT had “unconsciously” considered issues which underpinned the policy which was said to be ultra vires.

17    The appellant also relied upon what I said in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila) at [56] concerning the purpose of the waiver power.

18    The primary judge’s reasons for rejecting the judicial review challenge may be summarised as follows. First, although the AAT’s express statement in [44] of the decision record that it did not apply the policy was not determinative, it provided “powerful evidence” that the policy was not in fact applied by the AAT.

19    Secondly, the Court was not prepared to draw the inference urged upon it by the appellant that the AAT had unconsciously applied the policy because of similarities between parts of PAM 3 and the AAT’s reasons. While acknowledging some similarity in the language, the primary judge said that this was not unusual and that the AAT was merely responding to the nature of the appellant’s claims, which it was bound to consider.

20    Thirdly, the primary judge accepted that the AAT’s express disavowal of the relevance of the policy was made in direct response to the appellant’s contention that the policy was ultra vires.

21    Fourthly, as to the appellant’s reliance upon what he described as the “facilitative” character of s 48, the primary judge emphasised that, in its own terms, s 48 is limited because it is subject to the Regulations and therefore cannot be characterised as a general facilitation of visa applications. Accordingly, relevant parts of the Regulations had to be addressed when they related to a subclass 820 visa application.

22    As to the appellant’s reliance on Waensila, while accepting that the Sch 3 criteria provided some “flexibility” in addressing “compelling reasons”, the primary judge found that the appellant did not explain how this was inconsistent with the AAT’s reasoning.

23    The primary judge then explained why he rejected each of the appellant’s contentions regarding the AAT’s reasoning at [42]-[46] of its decision record.

24    Finally, with specific reference to the appellant’s challenge to the policy, his Honour found that the policy was consistent with the intention of the Regulations and provided guidance by way of examples as to how to approach “compelling reasons”.

The proceedings in this Court

25    The appellant was legally represented. The sole ground of appeal is that the FCCA erred in finding that, notwithstanding the express disavowal by the AAT of any reliance on the impugned policy, the policy did in fact inform the AAT’s decision.

Appellant’s submissions summarised

26    The appellant placed heavy reliance upon what I said in Waensila at [47] and [56]. Those paragraphs are as follows:

47.    In support of his construction of the relevant provisions, the appellant relied upon what his counsel described as the “principles” in the High Court’s decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 (Berenguel). Reliance was also placed on the Explanatory Statement which accompanied the amendment to the Regulations which omitted the previous cl 820.211(2)(d) and substituted the new provision, which included the relevant waiver power (see cl 10 of Sch 2, Pt 820 (Spouse) of the Migration Regulations (Amendment) 1996 No 75 (Cth) (the 1996 amendments)). The appellant submitted that the evident purpose of the amendment is reflected in the following extract from the Explanatory Statement (emphasis added):

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

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

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

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

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

…

56.    The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or “compelling reasons” post-date the time of application.

27    In addition, the appellant contended that the AAT erred when, in determining which facts and circumstances may properly constitute “compelling reasons” within cl 820.211(d)(ii), reference should be made to MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; 127 ALD 510 (MZYPZ) at [10] and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; 141 FCR 285 (Babicci) at [24], emphasising that Babicci addressed the concept of “compelling circumstances” and not “compelling reasons” as referred to in cl 820.211(2)(d)(ii). He contended that Babicci, which involved reg 1.20 and the statutory bar it imposed, was to be contrasted with the “facilitative nature” of the waiver provision in cl 820.211(d)(ii).

28    As to MZYPZ, the appellant contended that this Full Court decision pre-dated Waensila and was incorrectly decided because it adopted the reasoning in Babicci even though MZYPZ involved cl 820.211 and not reg 1.20.

29    The appellant contended that the primary judge erred in not finding that the AAT fell into jurisdictional error by not giving effect to Waensila and the Explanatory Statement relating to the incorporation of the concept of “compelling reasons” in cl 820.211(d)(ii). He contended that the correct approach was for the AAT to take into account the appellant’s “longstanding relationship of more than 2 years and the existence of an Australian-citizen child from a couple’s relationship”.

30    As to the AAT’s statement at [44] of its reasons and the express disavowal of any reliance on the policy, the appellant submitted that the AAT’s reference to the need for it to consider whether there are compelling reasons for waiving the public interest criteria disclosed “a fundamental misunderstanding that Schedule 3 is facilitative and was intended to assist persons who did not hold a substantive visa to nevertheless make an application for a spouse 820/801 visa”. The appellant submitted that despite the AAT’s express statement it had unconsciously adopted the policy and that the policy was ultra vires the Act and Regulations.

31    The appellant contended that the insertion of cl 820.211 in 1996 and the subsequent amendment to s 48 of the Act in September 2009 were “clearly and unambiguously facilitative in that they permitted the making of an application for a spouse visa which was not permissible prior to 1996 if an Appellant (sic) had previously applied for and been refused a visa and no longer held a substantive visa”.

32    The appellant repeated several times his primary submission that, despite the AAT’s express disavowal of applying the policy in PAM 3 and the primary judge’s rejection of the appellant’s argument, the Court should find that the AAT’s decision was “clearly informed by PAM 3” and that that policy is an impermissible fetter on the exercise of the “discretionary powers”.

Minister’s submissions summarised

33    The Minister’s primary submission was that the appellant failed to identify any appealable error in the primary judge’s rejection of the appellant’s argument that, notwithstanding the express disavowal by the AAT of the impugned policy, in fact the impugned policy informed the AAT’s decision. The Minister contended that the primary judge was correct to reject this argument for the reasons given by his Honour.

34    In any event, the Minister contended that even if the primary judge’s conclusion concerning the AAT’s reliance on the policy was incorrect, the Court should not accept the appellant’s argument that the policy was ultra vires. That is because, fairly read, the policy does not purport to constrict the exercise of discretion, but rather expresses guidance on the kinds of circumstances that might, in a particularly case, amount to compelling reasons.

35    As to the appellant’s contention that s 48 of the Act is facilitative, the Minister emphasised that the primary judge accepted that argument at [33] but the primary judge was correct to find that s 48 is express to be “subject to the regulations” and the appellant did not challenge the validity of the applicable Regulations.

36    As to the appellant’s submissions concerning the alleged error by the AAT in relying upon MZYPZ and Babicci, the Minister referred to authorities such as Choi v Minister for Immigration and Border Protection [2018] FCA 291 (Choi) at [7] and [16] per Allsop CJ; Singh v Minister for Immigration and Border Protection [2018] FCA 1199 (Singh) at [13] and [18] per White J and SZUDO v Minister for Immigration and Border Protection [2018] FCA 194 (SZUDO) at [8] per Logan J.

Consideration and determination of the appeal

37    This case is deeply troubling. Viewed objectively, the matters put forward as constituting compelling reasons for waiving the public interest criteria are powerful. That is particularly so when two of the primary matters relied upon by the appellant as constituting “compelling reasons” reflect the very two examples of reasons of a “strongly compassionate” nature described in the Explanatory Statement which accompanied the amendments in 1996 which included the new cl 820.211(2)(d) (as noted in the extract from Waensila set out at [25] above. The first matter is the fact that the appellant and his wife had shortly before the AAT hearing had a child who is an Australian citizen. Secondly, on any view, the appellant and his wife had been in a long-standing relationship for well more than two years. Although the AAT did not accept that the couple were in a de facto relationship since 2008 as claimed by them, it appeared to accept in [39] that that was the case since 2014. There was also no dispute that the couple had in fact married in September 2015.

38    Of course, in determining whether or not there were “compelling reasons” the AAT was not confined to considering only these two matters. They had to be weighed with other relevant considerations, including the lengthy period in which the appellant was an unlawful non-citizen.

39    The Court has considerable sympathy for the appellant and his family but that provides no proper basis for the appeal to be upheld. Nor would it have provided an adequate basis for the primary judge to have interfered with the AAT’s decision having regard to the limitations of the judicial review jurisdiction which his Honour was exercising.

40    As noted above, there is a single ground of appeal which raises the issue whether the primary judge erred in not accepting the appellant’s contention that, despite the express disavowal in [44] of the AAT’s decision record, the policy contained in PAM 3 “informed” the AAT’s decision. A related contention is that that policy was ultra vires. The appellant did not claim PAM 3 contained matters that were irrelevant or outside the scope of the waiver power, but that it constituted an improper fetter or restriction on the discretion. For this reason, the latter contention only arises if the Court finds that the primary judge erred in not accepting the appellant’s submission that the policy had been taken into account and applied by the AAT despite its express statement to the contrary.

41    It would be a serious matter for a Court to conclude that a clear and unambiguous statement such as that made here by the AAT in [44] of its decision record did not reflect the reality or truth of the AAT’s deliberations. Such a clear and unambiguous statement should ordinarily be accepted at face value unless there are compelling and cogent reasons for finding that the statement was inaccurate or false and did not truly reflect the AAT’s reasoning processes. Such cases are likely to be rare.

42    I respectfully agree with the primary judge’s reasons at [28] to [31] of his Honour’s reasons for judgment as to why the Court would not draw the inference urged by the appellant that the AAT “unconsciously” imported the policy into its reasoning. That is largely because this part of the AAT’s reasons is in direct response to the appellant’s arguments concerning the lawfulness of the policy. These arguments are expressly referred to by the AAT in the final sentence of [43], which immediately precedes the AAT’s statement in [44] that it had not had any regard to the policy. The AAT accepted that consideration of whether or not there are compelling circumstances is unfettered. The appellant has failed to advance any persuasive reason why the clear and unambiguous statement by the AAT in [44] should not be accepted as a truthful and accurate statement of the AAT’s reasoning processes.

43    As the primary judge stated at [29], it is unsurprising that there may be some similarities between the contents of PAM 3 and the matters raised by an appellant for the AAT’s consideration and determination in a particular case involving “compelling reasons” without any reliance being placed by either an appellant or the AAT on the policy contained in PAM 3. Merely because the AAT responded as it did to each of the matters raised by the appellant, some of which were not expressly contained in the poliy, as constituting “compelling reasons” does not indicate that the AAT unconsciously imported the policy into its analysis.

44    As explained in [40] above it is unnecessary to determine the appellant’s claim that the policy in PAM3 is ultra vires.

45    Finally, as to the appellant’s references to MZYPZ and Babicci, it is difficult to see how they relate to the single ground of appeal. In any event, despite the AAT’s citation of those cases I am not persuaded the AAT misunderstood or misapplied the correct test under the rcl 820.211(2)(d)(ii) in Sch 2.

Conclusion

46    For these reasons, the appeal must be dismissed, with costs.

47    I repeat, however, that this is a troubling case. If it is viewed on its merits (which, of course, is not the function on a judicial review or on an appeal such as the present proceeding), a different decision-maker may well have come to a favourable conclusion on the presence of “compelling reasons” in this case, even taking into account the lengthy period of the appellant’s unlawful migration status. That is not to say that the AAT’s decision is unreasonable or capricious (indeed, no such contention was made by the appellant either below or on the appeal). Rather, my intention is to highlight the desirability of close attention being given to this case with a view to determining whether the Minister’s discretionary powers might properly be exercised.

Associate:

Dated:    5 July 2019