FEDERAL COURT OF AUSTRALIA

Jata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1998

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court made 7 June 2019 by which the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal was dismissed with costs. The Tribunal had affirmed a decision of the first respondent (the Minister) not to grant the appellant a Partner (Temporary) Class UK Visa (partner visa), which was sponsored by the appellant’s wife, Ms Shprese Gashi.

Background

2    The appellant is a 30 year old citizen of Albania. The appellant’s application for a partner visa was refused on 12 April 2016 by a delegate of the Minister. The application was refused because at the time of the application the appellant did not satisfy the criteria in clause 820.21 of Schedule 2 of the Migration Regulations 1994 (Cth), as he did not at the time of the application have a substantive visa. As the appellant was not the holder of a substantive visa, he had to satisfy the Schedule 3 criteria 3001, 3003, and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria: see clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations. The appellant did not satisfy the Schedule 3 criteria, and furthermore the delegate determined that there were no compelling reasons for not applying the criteria. It was agreed between counsel for the appellant and the Minister that the appellant’s failure to satisfy the Schedule 3 criteria had the consequence that he could apply for a visa only while he was offshore, that is, outside Australia.

3    On 1 May 2016, the appellant made an application to the Tribunal for merits review of the delegate’s decision. On 23 August 2016, the Tribunal affirmed the decision. The question whether there were compelling reasons not to apply the Schedule 3 criteria was the principal issue that was before the Tribunal.

4    In summary, the circumstances of the appellant’s application, which had some unusual aspects, were as follows –

(1)    The appellant entered Australia on 23 August 2012 on a subclass 420 (entertainment) visa which came to an end on 28 October 2012.

(2)    On 21 November 2012, the appellant made an application for a partner visa. That application was invalid.

(3)    The appellant did not hold a visa for a period of time until June 2013, but he continued to reside in Australia.

(4)    On 20 June 2013, the appellant lodged a valid application for a partner visa. The application was sponsored by a Ms Analisa Albano on the basis that she was the appellant’s spouse.

(5)    On 3 February 2015, a delegate of the Minister wrote to the appellant inviting him to comment on information received by the Department that Ms Albano was known by two other names, and was the sponsor of two other people, each of whom had an ongoing visa application before the Department.

(6)    The appellant claimed that in March 2015 he and Ms Gashi became neighbours, and subsequently commenced a relationship in July 2015.

(7)    On 15 September 2015, the appellant withdrew his partner visa application that had been sponsored by Ms Albano.

(8)    On 30 September 2015, the appellant and Ms Gashi, who is an Australian citizen, married.

(9)    On 13 October 2015, the appellant applied for a partner visa sponsored by Ms Gashi. It was this application that the delegate of the Minister refused on 12 April 2016.

The Tribunal’s decision

5    Before the Tribunal, the appellant was legally represented. In summary, the case advanced by the appellant before the Tribunal was that Ms Gashi was dependent upon the appellant for emotional, financial, and other support. That case was advanced in the context that Ms Gashi suffered from a number of physical and psychological conditions. Ms Gashi had Type 2 Diabetes, which was claimed to cause her high blood pressure, blurred vision, and fainting as a result of which it was claimed she was unable to drive or shop for herself. In addition, she had fallen pregnant to the appellant in late 2015, and had suffered a miscarriage in January 2016. It was claimed that Ms Gashi was suffering depression and anxiety that was linked to her miscarriage, the death of her father, and her brother’s incarceration in an Australian prison following his conviction for certain offences. The evidence before the Tribunal was that the appellant earned income as a contractor, but that Ms Gashi was in receipt of Centrelink payments. It was put that Ms Gashi was financially dependent upon the appellant in order to meet living expenses, including rental. In substance, it was put that if the appellant had to return to Albania in order to make a valid application for a partner visa, Ms Gashi was not in a position to accompany him, and that she would therefore be deprived of the appellant’s emotional, financial, and physical support.

6    The Tribunal was not persuaded that there were compelling reasons not to apply the Schedule 3 criteria. In summary, the Tribunal’s reasons were as follows –

(1)    the Tribunal recorded that at the outset of the hearing the appellant’s representative told the Tribunal that the appellant would not answer any questions about his migration history on the grounds that he might tend to incriminate himself - [17];

(2)    the Tribunal recorded a submission on behalf of the appellant to the effect that past events were not relevant to the Tribunal’s consideration of whether there were compelling reasons not to apply the Schedule 3 criteria, but held that the history was relevant because there were inconsistencies in the appellant’s evidence that cast doubt on his credibility as a witness – [17], [27];

(3)    the appellant’s decision to remain in Australia unlawfully in 2012 demonstrated a disregard for Australian migration law – [28];

(4)    the appellant maintained contact with his parents in Albania, and had their support, and the Tribunal was not satisfied that the appellant would be unable to obtain employment in Albania, if he needed to, or that he could not be accommodated and supported by his parents - [49];

(5)    while the Tribunal accepted that the appellant married Ms Gashi in September 2015, as evidenced by a marriage certificate, it stated that it gave significant weight to the fact that the parties stated that they commenced a relationship in June 2015, yet the appellant had a valid partner application before the department, sponsored by Ms Albano, until 15 September 2015, and that he married Ms Gashi just two weeks later - [46], [48];

(6)    the Tribunal accepted that it would be difficult for Ms Gashi to travel offshore with the appellant, as this would likely compromise her medical condition at a time when her diabetes was unstable – [33];

(7)    in relation to Ms Gashi’s claimed anxiety and depression to which the Tribunal had regard, the Tribunal was satisfied that Ms Gashi was aware of available psychological services if she decided that she wished to seek treatment [34]-[35], [53];

(8)    the Tribunal accepted that Ms Gashi had been diagnosed with diabetes, and was having difficulty stabilising it which made it difficult for her to find work – [52];

(9)    the Tribunal found that Ms Gashi would continue to be able to obtain medical services in relation to her diabetes if the appellant departed Australia, and that she would be able to organise alternative transport for medical appointments, and that she could obtain assistance from her sister – [36];

(10)    the Tribunal rejected a claim that Ms Gashi would neglect the management of her diabetes if separated from the appellant, noting that Ms Gashi was a 32 year old woman, who had lived in various countries, and who had a career as a hotel specialist – [37];

(11)    Ms Gashi’s mother and a sister lived in Melbourne and, given close family bonds, Ms Gashi could rely upon her family’s support if separated from the appellant while he applied for a visa from offshore – [38]-[39];

(12)    it was open to Ms Gashi’s sister and mother to move from their current rented accommodation to more spacious premises that would enable Ms Gashi to live with them, and that they would receive combined Centrelink benefits of approximately $3,176 per fortnight, noting that Ms Gashi’s sister’s benefits reflected her need to care for two children – [42]-[43];

(13)    the Tribunal was therefore not satisfied that Ms Gashi would suffer financial hardship such as to amount to a compelling reason not to apply the Schedule 3 criteria – [51];

(14)    as to emotional attachment, the Tribunal acknowledged that Ms Gashi would find it difficult to be separated from the appellant, but that a strong emotional attachment was a normal part of a partner relationship, and did not in itself give rise to compelling reasons, having regard also to Ms Gashi’s close and supportive relationship with her mother and sister – [54]; and

(15)    the Tribunal was not satisfied that the matters relied upon, either separately or cumulatively, were compelling reasons not to apply the Schedule 3 criteria – [58].

The Federal Circuit Court

7    On 27 September 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision in the exercise of that Court’s jurisdiction conferred by s 476(1) of the Migration Act 1958 (Cth). Material to the issues on this appeal is the first ground on which the appellant sought judicial review –

1.    The Tribunal failed to complete its jurisdiction by failing to consider a substantial and clearly articulated submission.

Particulars

a.    It was a substantial and clearly articulated submission that, due to Mr Jata’s migration history, he and his wife would be subjected to an unusually long period of separation if Mr Jata were refused the visa and forced to apply for another visa while offshore.

b.    The Tribunal failed to consider the submission.

8    The other grounds that were advanced on behalf of the appellant before the Federal Circuit Court are not material to the issues on appeal.

9    In support of the first ground of review, the appellant relied upon submissions that had been advanced on his behalf by his representative at the hearing before the Tribunal on 9 August 2016 (T36/14-34) –

Were consideration or regard to be had to the applicant’s visa history, prior to entering that relationship, and prior to the relevantly compelling circumstances arising, we really would say that that’s just a purely irrelevant consideration. We really need to be looking at what the compelling reasons are and if they’re sufficiently forceful to justify granting the visa. I think we’re all kind of aware of what they are, but I’ll just sort of recap them very, very briefly.

I think the sensible view is that if Mr Jata were forced to go offshore, there’s really not much prospect of [Ms Gashi] following him to Albania, I think for medical and financial and family support reasons. That’s just not going to be likely. So we’re probably looking at the scenario where they’re going to be separated for a year, possibly more. Given the applicant’s visa history, that matter – those matters might actually get – they might cause delay in character consideration and other factors like that. It could be two years before the visa is granted and they’re able to be reunited.

So I would ask the tribunal to take into account the very serious likelihood that there won’t just be a period of separation; there will be an unusually long period of separation because of the circumstances that precede the relationship.

[Emphasis added]

10    The appellant’s representative also made written submissions both before and after the hearing before the Tribunal. Before the primary judge, the appellant relied upon the following passage from written submissions contained in an email from the appellant’s representative to the Tribunal dated 18 August 2016 –

In this regard, the “best case scenario” for the sponsor, in the event of a decision to affirm, appears to be that she will be unable to pay the rent on the matrimonial home and her extended family will then attempt to make room for her to live (probably for a very extended period of time, given the applicant’s migration history) at the 5/86 Kirkham Road Property.’

[Emphasis added]

11    The primary judge rejected the appellant’s claim for three reasons.

12    First, the primary judge referred to and evidently gave weight to the passage in the transcript set out under [9] above in which the appellant’s representative had submitted that the appellant’s visa history was a “purely irrelevant consideration”. The primary judge also considered that the claim was speculative, being based upon speculation as to what a delegate of the Minister might do when assessing a future visa application that the appellant might make in circumstances where the appellant had said that his migration history was not relevant. For these reasons, the primary judge held that the claim was not a substantial one, nor one that was clearly articulated, such as to require the Tribunal to give it active consideration.

13    Second, the primary judge held that the claim, whether resolved one way or the other, would not have been dispositive of the review before the Tribunal, citing Singh v Minister for Home Affairs [2019] FCAFC 3 at [34] (Reeves, O’Callaghan and Thawley JJ), which in turn cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63] (Black CJ, French and Selway JJ).

14    Third, the primary judge held that the Tribunal had taken into account the substance of the claim (such as it was) that separation may be for a lengthy period of time. The primary judge gave as examples –

(1)    the findings made by the Tribunal in relation to the support that Ms Gashi would receive should the appellant be required to apply for the Visa overseas;

(2)    the consideration by the Tribunal of the income position of Ms Gashi given the appellant’s potential absence;

(3)    the consideration by the Tribunal of whether Ms Gashi could adjust to life and other arrangements while the appellant applied for the visa offshore;

(4)    the discussion by the Tribunal of the ability of the appellant to live and find employment offshore; and

(5)    the fact that the Tribunal stated expressly at [57] of its decision record that it had regard to ‘all other relevant factors’ in determining that there were not compelling reasons for waiving the Schedule 3 criteria.

15    The primary judge held that the import of all the above was that the Tribunal was well apprised of the prior circumstances of the appellant and the difficulties they might cause to the appellant, and to the sponsor and her family.

16    For these reasons, the primary judge rejected the appellant’s first ground of review.

The appeal to this Court

17    Before this Court, the appellant relies upon one ground of appeal, which reflects the first ground of review that was before the primary judge. The ground of appeal is in the following terms –

1.    The Federal Circuit Court erred in not finding that the decision of the Administrative Appeals Tribunal (the Tribunal) was affected by jurisdictional error in that it failed to consider a substantial and clearly articulated submission, namely that due to the appellant’s migration history, he and his sponsor would be subjected to an unusually long period of separation if her [sic] were refused the visa and forced to apply for another visa while offshore.

18    Counsel for the appellant submitted that the appellant’s migration history was less than ideal, but that the significance of the history lay in the possibility that the appellant’s character to hold a visa might be called into question, thereby increasing the significance of the period of separation between the appellant and his wife, because it was likely to be unusually lengthy. Counsel submitted that the prospect that the appellant’s character might be called into question was not theoretical because a case note between officers of the Department dated 20 October 2015 that is within the appeal book stated (inter alia) –

You may wish to allocate and assess Mr Jata’s current visa application on a priority basis, based on his immigration history and fraud related to his previous partner visa application

19    Counsel for the appellant accepted that the argument could have been made in clearer terms before the Tribunal, and that it might also have been supported with more information such as showing the possibility of the appellant’s character being called into question, and by giving an estimate of the difference in the period of separation if there were to be consideration of the appellant’s character. Nonetheless, counsel submitted that the claim was sufficiently articulated before the Tribunal such that the Tribunal should have appreciated its existence, and specifically considered it. Counsel made the following submission –

… After all, the review was about “compassion”, arising in the context of the separation of spouses (with one spouse being unwell). The length of the separation is highly probative of whether the pull of “compassion” rises to the level required to satisfy a decision maker to waive the application of an otherwise applicable exclusionary criterion.

20    Counsel submitted that the primary judge was wrong to conclude that the submission before the Tribunal was not substantial.

21    Counsel for the appellant also challenged the primary judge’s reliance on that part of the submission to the Tribunal of the appellant’s representative that the visa history was a “purely irrelevant consideration”. Counsel submitted that it was the appellant’s migration history that supported the claim that processing delays would be occasioned by the need to consider his character, and submitted that any suggestion in the primary judge’s reasons that there was any inconsistency before the Tribunal was misconceived. Counsel for the appellant also submitted that the passage from the transcript of the hearing before the Tribunal upon which the primary judge relied where the appellant’s representative had submitted that his visa history was irrelevant, was made in a specific context, and was not a concession that the visa history was irrelevant to a separate submission that was made concerning the likely delay that might arise in processing the appellant’s visa application.

22    In relation to the primary judge’s finding that the claim was speculative, and was therefore not a substantial one, counsel submitted that the claim was of course speculative, because it concerned a prediction as to future events. However, this feature of the claim did not deprive it of substance. Counsel submitted that the concern was a credible concern and, if accepted, should have increased the weight that would have been placed upon the compassionate considerations affecting Ms Gashi as the sponsor.

23    Counsel for the appellant also submitted that the primary judge was wrong to find that the claim, if accepted, could not be dispositive of the review.

24    Finally, counsel for the appellant submitted that there was a tension between the primary judge’s finding that the Tribunal did take account of the substance of the appellant’s claim that separation may be long, and the findings that the claim was not a substantial and clearly articulated claim. Further, counsel submitted that the matters set out in the primary judge’s reasons (see [14] above) reflected only that the Tribunal knew that it was dealing with some period of separation but that these matters were not responsive to the argument put to the Tribunal that the period of separation may be longer than usual in the present case because of character considerations that were relevant to the appellant.

Consideration

25    The Tribunal’s merits review of the delegate’s decision was undertaken pursuant to Part 5 of the Migration Act. The Tribunal was required to form its own view, on the material before it, as to the proper performance of the duty imposed on the Minister by s 65 of the Migration Act: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [32] (Kiefel CJ, Gageler and Keane JJ). The principal question was whether the Tribunal should be satisfied that compelling reasons existed not to apply the Schedule 3 criteria. That question involved an evaluative judgment by the Tribunal as to whether it was satisfied that compelling reasons existed: see, Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [8] (Gleeson CJ); MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; 127 ALD 510 at [10]–[17] (Bromberg J); McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10] (Whitlam J).

26    In evaluating the material before it, the Tribunal was required to act in a way that was fair and just: s 357A(3). The Tribunal was required to invite the appellant to appear before it to give evidence and to present arguments: s 360(1). Those requirements, together with the review function mandated by s 348 of the Migration Act have the consequence that the Tribunal might fail to accord procedural fairness, and might fail constructively to exercise its review jurisdiction if it did not evaluate submissions of substance that were clearly articulated: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 142 ALD 150 at [75]-[81] (Griffiths J).

27    An applicant for review bears the onus of establishing that the Tribunal failed to give consideration to a submission. It is appropriate to have regard to the Tribunal’s written statement in considering whether the Tribunal has failed to consider a clearly articulated submission of substance: SZSSC at [81(e)]. Such a finding is an evaluative judgment that will not be lightly made, and requires clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [48] (Griffiths, White and Bromwich JJ). And the Court should approach the Tribunal’s reasons in a sensible and balanced way. It is well settled that the Tribunal’s written statement should not be examined with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ), which in turn cited Politis v Commissioner of Taxation [1988] FCA 739; 16 ALD 707 at 708 (Lockhart J).

28    There are three steps involved in considering whether, by the appellant’s ground of appeal, he has shown error in the primary judge’s decision –

(1)    was a clearly articulated submission made to the Tribunal on behalf of the appellant concerning the time it might take to process a visa application by appellant should he make one from offshore;

(2)    what was the substance of that submission; and

(3)    did the appellant demonstrate that the Tribunal failed to evaluate the substance of the submission?

29    The primary judge was in error in rejecting the appellant’s claim on the ground that the submission to the Tribunal was not substantial or clearly articulated. The submission concerning the possible processing time for a visa application was a material component of the appellant’s invitation to the Tribunal to consider the circumstances of the sponsor Ms Gashe should separation occur, and was squarely put. The appellant advanced a submission to the Tribunal that, in considering the position of Ms Gashi, and to a lesser extent the position of the appellant, the Tribunal should take account of the time it might take the Minister to consider an application for a visa should the appellant make one from offshore. That submission involved inviting the Tribunal to evaluate the possible course of future events, and was therefore of its nature inexact in the way that it was presented. As the transcript of the submission shows (see [9] above), that inexactitude involved inviting the Tribunal to have regard to a length of time that was not precisely quantified, and which was stated to be: “a year, possibly more”; “it could be two years”; and “an unusually long period of separation”.

30    The primary judge was also in error in eroding the effect of the submission about possible delay in processing a visa application by referring to the submission that the appellant’s visa history was a “purely irrelevant consideration”. That latter submission had been made to the Tribunal by the appellant’s representative in a different context, and it was made in order to direct attention to the circumstances of the sponsor, and away from the appellant’s visa history.

31    I also consider that the primary judge was in error to rely on the speculative nature of the appellant’s submission to support his Honour’s finding that it was not a substantial submission. Because the submission was directed to the uncertain course of future events, its content necessarily invited some measure of speculation. But that did not mean that the submission lacked substance.

32    The primary judge’s finding that the appellant’s submission to the Tribunal would not have been dispositive of the review is not explained by a path of reasoning, and does not reflect the terms in which that principle was stated in NABE at [63], cited in Singh at [34], namely that a failure to consider a claim might amount to jurisdictional error if it “would or could” be dispositive of the review. That phrase is directed to the materiality of an error such that the error might be regarded as jurisdictional, and has recently been expressed as whether a breach by the Tribunal of an obligation to an applicant for review “could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ). However, I need not consider further any questions of materiality. That is because I am not persuaded that the Tribunal failed to give appropriate consideration to the appellant’s submissions.

33    In Singh, the Court stated at [37(2)(b)] that in examining the reasons of a decision-maker to determine whether there was a lack of intellectual engagement –

it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal

34    The appellant’s case before the Tribunal was primarily focussed on the consequences to the sponsor, Ms Gashi, should the appellant return to Albania. The gravamen of the submission to the Tribunal by reference to the time it might take to process the appellant’s visa application was to emphasise that the period of separation was likely to be substantial rather than insubstantial. The Tribunal must be taken to have accepted that prospect, because it evaluated the consequences resulting from Ms Gashi’s separation from the appellant on the basis that the period of separation would be significant. This can be seen especially in the matters referred to in the summary of the Tribunal’s reasons at [6] above at sub-paragraphs (4), and (7) to (14). Those considerations point to an assumption by the Tribunal that there would be a substantial rather than an insubstantial period of separation. It is entirely understandable that the Tribunal did not proceed to make any finding as to the likely period of separation, because the appellant’s submission to the Tribunal did not suggest that such a period could be quantified reliably. There was therefore no error in the primary judge’s conclusions at [29] that –

… the Tribunal was well apprised of the circumstances of the [appellant] and the difficulties it might cause to the [appellant] and to the sponsor and her family. It went through those matters in some detail. It cannot be said, in my view, that there was a failure to consider those circumstances, including a lengthy period of absence or separation.

35    For these reasons, the appellant has not shown that primary judge’s decision to reject the first ground of review below was in error. The appeal will be dismissed with costs.

Associate:

Dated:    26 November 2019