FEDERAL COURT OF AUSTRALIA

Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for leave to amend the notice of appeal be refused.

3.    The appeal be dismissed.

4.    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    The appellant appeals from a judgment of a judge of the Federal Circuit Court of Australia (FCCA) dismissing his application for judicial review of a decision of the second respondent (Tribunal) dated 17 May 2016: Hassan v Minister for Immigration & Anor [2018] FCCA 3096. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection dated 30 September 2014, refusing to grant the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (collectively, partner visa).

2    The appellant applied for the visa on 16 July 2014, following his marriage to Tara Hussain (sponsor) and having last held a substantive visa in May 2000.

3    Criterion 3001(1) of Sch 3 to the Migration Regulations 1994 (Cth) (Regulations) required the appellant to have made his application for the partner visa within 28 days of 2 May 2000.

4    The appellant accepts that by reason of cl 820.211(2)(d)(ii) of Sch 2 to the Regulations, at the time of his visa application and the Tribunal’s decision, he was required to meet the relevant requirements of Sch 3 or demonstrate that, at those times, there were “compelling reasons” for not applying the relevant Sch 3 criteria.

5    The Tribunal accepted that the appellant and his sponsor were in a genuine and continuing spousal relationship, but found that the appellant did not meet the requirements for the visa, because it was not satisfied as to the existence of the requisite “compelling reasons”.

6    The FCCA judge concluded that the appellant had not established that the Tribunal’s decision was affected by jurisdictional error.

7    The appellant sought leave to rely on an amended notice of appeal dated 21 June 2019, containing the following single ground of appeal:

The application [sic] is infected by jurisdictional error in that it is informed by a policy which is ultra vires the Migration Act and Regulations.

Particulars

The policy underpinning the schedule 3 requirement incorporated in the regulation is ultra vires the Migration Act 1958 (“Act”), in particular the facilitative provisions of section 48 amended in September of 2009 and so fetters the consideration of ’compelling’ circumstances so as to traverse the facilitative nature of both section 48 and criterion 820.211 of the Migration Regulations.

8    As expressed, the proposed ground of appeal was directed to an issue not raised in the FCCA, namely, that the Tribunal’s decision involved jurisdictional error because the Tribunal had regard to the Department’s “Policy and Procedures Manual”, referred to as PAM3.

9    The Minister opposed the grant of leave on the bases that the proposed ground of appeal had not been advanced before the FCCA judge and, in any event, lacked merit.

Leave to amend notice of appeal

10    In Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, the Full Court explained the principles applicable to an application for leave to rely upon a ground of appeal not advanced before the primary judge, at [19]-[20]:

[19]    The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]–[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration & Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]–[90]):

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 & 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.

[20]    In Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].

11    For the reasons set out below, it is not expedient in the interests of justice to permit the appellant to argue the proposed ground of appeal because it has no apparent merit.

Legal framework

12    Section 48(1) of the Migration Act 1958 (Cth) (Act) relevantly permits applications for particular prescribed classes of visa by certain non-citizens, including partner visas by reg 2.12 of the Regulations. At the time of the Tribunal’s decision, s 48 was in the following terms:

(1)    A non-citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    after last entering Australia:

(i)    was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii)    held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

(1A)    A non-citizen in the migration zone who:

   (a)    does not hold a substantive visa; and

(b)    after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

    (i)    the application has been finally determined; or

(ii)    the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

(iii)    the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

(2)    For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:

   (a)    has been removed from the migration zone under section 198; and

(b)    is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note:    Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

(3)    For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

  (4)    In paragraphs (1)(b) and (1A)(b):

(a)    a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and

(b)    a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.

13    Schedule 3 to the Regulations sets out “additional criteria” applicable to unlawful citizens and certain bridging visa holders.

14    Clause 820.211(2)(d)(ii) provided:

(2)    An applicant meets the requirements of this subclause if:

 (a)    the applicant is the spouse or de facto partner of a person who:

(i)    is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii)    is not prohibited by subclause (2B) from being a sponsoring partner; and

 (c)    the applicant is sponsored:

(i)    if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

(ii)    if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

 (A)    has turned 18; and

(B)    is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d)    in the case of an applicant who is not the holder of a substantive visa—either:

     (i)    the applicant:

(A)    entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B)    satisfies Schedule 3 criterion 3002; or

(ii)    the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

Meaning of “compelling reasons”

Babicci

15    The FCCA judge stated (at [20] of his Honour’s reasons) that the Tribunal correctly referred to Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 (Babicci) as to the meaning of “compelling reasons”.

16    In his submissions, the appellant raised the following issue, not referred to in the proposed amended notice of appeal:

[T]he decision in [Babicci] … amplifies in an unintended way, a statutory hurdle which arises in a completely different statutory context and thus frustrates the facilitative nature of the relevant statutory provision.

17    In Babicci, the question was whether there were “compelling circumstances affecting the sponsor”, which was an issue relevant to whether to exercise the power to approve sponsorship for a Partner (Provisional) (Class UF) visa. In that event, by reg 1.20J(2) of the Regulations, the Minister was empowered to approve the sponsorship of an applicant for a visa despite reg 1.20J(1). At [21]-[24], the Full Court stated:

[21]    In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.

[22]    In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge’s view of this.

[23]    In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.

[24]    There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.

18    At [26], the FCCA judge said that the “statement of principle” in Babicci is consistent with the meaning given to the word “compelling” in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64), by the plurality at [31] and by Gageler J at [64]. At [31], the plurality said (citations omitted):

In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.

19    At [64], Gageler J stated (citations omitted):

A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.

20    In MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 (MZYPZ), Bromberg J applied Babicci in considering a case concerning whether compelling reasons existed for not applying the relevant Sch 3 criteria by cl 820.211(2)(d)(ii), saying (at [10]-[13]):

[10]    [Clause 820.211(2)(d)(ii)] is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).

[11]    As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:

Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment.

[12]    In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.

[13]    The decision-maker needs to be “satisfied” that compelling reasons exist.

21    Babicci has been repeatedly applied by judges of this Court in considering what is required to establish “compelling reasons” for cl 820.211(2)(d)(ii): SZRVA v Minister for Immigration and Border Protection [2019] FCA 630 at [11] (Flick J); Le v Minister for Immigration and Border Protection [2018] FCA 1256 at [6] (Collier J); Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [7] (Allsop CJ); SZUDO v Minister for Immigration and Border Protection [2018] FCA 194 at [8] (Logan J). I applied Babicci in this context in Mahrous v Minister for Immigration and Border Protection [2018] FCA 1876 at [10]. See also Gauchan v Minister for Home Affairs [2018] FCA 1875 at [18]-[20].

22    Despite this line of authority, the appellant contended that the decisions in Babicci and MZYPZ are of “limited assistance” with respect to determining what matters may inform the Court as to the meaning of “compelling reasons” in cl 820.211(d)(ii) and are “distinguishable” in the context of this case.

23    The appellant did not explain how this contention supported the proposed ground of appeal or some other ground of appeal.

24    The distinguishing feature identified by the appellant in relation to Babicci is that it concerned a statutory bar arising under reg 1.20J as opposed to the “facilitative nature of the waiver provision” in the present case. Any possible distinction in relation to MZYPZ was not identified and I do not accept that there is any basis for distinguishing that case from this one.

25    The argument that cl 820.211(2)(d)(ii) is “facilitative as opposed to a barring context” involved the following elements:

(1)    section 48 was amended to permit the making of a visa application within the statutory framework of the Regulations; and

(2)    clause 820.211(2)(d)(ii) is facilitative in nature.

26    The appellant noted that the current terms of cl 820.211(2)(d) were introduced by the Migration Regulations (Amendment) 1996 No 75 (1996 amendments). The new language was said to be facilitative because it permitted applicants who did not hold a valid substantive visa to make an application for a visa subclass 820 if they could demonstrate “compelling reasons” for the grant of such a visa.

27    The appellant contended (and it did not appear to be disputed) that, on 7 September 2009, the Regulations were amended (by the Migration Amendment Regulations 2009 No 10 (2009 amendments)) to permit applicants prevented by s 48 from making a further onshore visa application to apply for a partner visa onshore. The appellant argued that this amendment “amplified” the facilitative operation of cl 820.211(2)(d).

28    Accepting that s 48 and cl 820.211(2)(d)(ii) may be described as “facilitative provisions”, none of the matters identified above provide a basis for concluding that the interpretation of “compelling circumstances” in Babicci is not relevant to the meaning of “compelling reasons” in cl 820.211(2)(d)(ii).

29    Accordingly, this aspect of the appellant’s argument does not advance his appeal.

Waensila

30    The appellant also submitted that Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (Waensila) (and, specifically, the judgment of Griffith J) is the “relevant authority to have regard to in matters involving the determination as to what facts and circumstances may properly constitute ‘compelling reasons’ in the specific statutory context” of cl 820.211(d)(ii).

31    Again, it was not clear how this submission related to the proposed ground of appeal or some other ground of appeal. There was no contention that the Tribunal (or the FCCA) erred in failing to apply Waensila. The Tribunal’s reasons cite Waensila for the proposition for which it is authority, namely, that in determining whether or not the Minister was satisfied that there were “compelling reasons”, the Minister is not confined to considering only “compelling reasons” which existed at the time of the application.

32    In Waensila at [2], Dowsett J expressed the view that the power to dispense with the Sch 3 criteria is designed to provide flexibility in the operation of the legislative and regulatory scheme which ought not be limited by limiting the circumstances which may be relevant to the exercise of the power. At [18], Robertson J noted that cl 820.211(2)(d)(ii) is an “ameliorating” provision. These observations are broadly consistent with the appellant’s contention that cl 820.211(2)(d)(ii) is “facilitative” in nature.

33    At [47], Griffiths J cited the following passage from the Explanatory Statement (1996 Explanatory Statement) to the Migration Regulations (Amendment) 1996 No 75 (Cth), by which the relevant form of cl 820.211(2)(d)(ii) was introduced.

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.

(Emphasis in original.)

34    At [54], his Honour noted that the “waiver power was obviously intended to be available to deal with cases where there were ‘compelling reasons’ for not putting particular applicants to the hardship of having to leave Australia for that purpose”.

35    At [56], Griffiths J stated:

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.

36    The appellant submitted that the “best indication” of the meaning of “compelling reasons” in cl 820.211(2)(d)(ii) are the passages of Griffiths J’s reasons below including the passage from the 1996 Explanatory Statement.

37    None of the members of the Full Court in Waensila referred to Babicci, but this is not surprising because it was not required to consider the meaning of “compelling reasons”. Rather, the issue in Waensila was whether the decision maker was confined to considering only compelling reasons which existed at the time of the visa application.

38    The matters raised on the appellant’s behalf concerning Waensila do not support a contention of appellable error, whether in the terms of the proposed amended notice of appeal or otherwise. As appears above, the reasons of Griffiths J do, however, confirm that cl 820.211(2)(d)(ii) is intended to address hardship that may otherwise result if the Sch 3 criteria are not waived and that such hardship may result in the case of a “long-standing relationship which has been in existence for two years or longer”.

PAM3

39    At the time of the Tribunal’s decision, PAM3 stated relevantly:

Clause 820.211(2)(d)(ii), the ‘compelling reasons’ provision, allows certain persons who are unlawful in Australia to regularise their status if compelling reasons exist.

The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.

In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

•    fail to comply with their visa conditions or

•    deliberately manipulate their circumstances to give rise to compelling reasons or

•    can leave Australia and apply for a Partner visa outside Australia.

An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.

With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.

For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control - such as severe illness or incapacity - the applicant was prevented from regularising their status in the years they had been unlawful.

As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.

Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.

Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:

•    any history of non-compliance by the applicant

•    the length of time the applicant has been unlawful

•    the reasons why the applicant became unlawful

•    the reasons why the applicant did not seek to regularise their status sooner

•    what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).

40    The FCCA judge referred to PAM3 in addressing ground 1(d) of the applicant’s grounds of review. This ground was that the Tribunal erred in its interpretation of cl 820.211(2)(d)(ii), in that “[t]here was no evident or intelligible justification for the Tribunal’s disregard of the example given in the [1996 Explanatory Statement] of a two-year relationship being a compelling reason for waiver of the Schedule 3 criteria”.

Tribunal’s references to PAM3

41    The Tribunal said relevantly, at paras 67 to 71 of its decision record:

67.    Department policy states that the provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or who deliberately manipulate their circumstances to give rise to compelling reasons. The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.

68.    The Tribunal is not bound by Department policy. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.

69.    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 at [10]; Babicci 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].

70.    The Tribunal has considered all the evidence before it including the oral evidence of the parties and the documentary evidence available in the Departments and the Tribunal’s files.

Length of relationship and whether there is an Australian citizen child of the relationship

71.    The Tribunal has considered the kinds of reasons included in the Explanatory Statement and in the Department’s Procedures Advice Manual to the extent that they are relevant to the circumstances of the applicant and the sponsor. The applicant met the sponsor in December 2013 and they were married in April 2014. The applicant and the sponsor have therefore been married for around two years and four months. The Tribunal is not satisfied that the length of the parties’ relationship, in and of itself, constitutes a compelling reason to not apply the Schedule 3 criteria.

Appellant’s submissions

42    The appellant stated that he does not suggest that the “EM” (which I took to be the 1996 Explanatory Statement) or the relevant policy has any role to play other than to broadly inform the exercise of the relevant statutory power, citing Prempree v Minister for Immigration & Anor [2017] FCCA 220.

43    The appellant submitted that given the facilitative nature of the relevant provisions of the Act, the Regulations and the 1996 Explanatory Statement, PAM 3 is ultra vires “in that it attempts to limit in an impermissible way, the facilitative nature of s 48(1) of the Act and cl 820.211(2)(d)”.

44    In support of this submission, the appellant cited the following passage from Minister for Home Affairs v G [2019] FCAFC 79; (2019) 367 ALR 49 at [58]-[59] (citations omitted):

[58]    It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created.

[59]    An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”.

45    The appellant also observed the limits of a lawful policy identified by Brennan J in Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 as one which:

(1)     does not control the exercise of discretion;

(2)    does not determine in advance the decision to be made; and

(3)    is not one which imposes a “broad and binding rule” on the exercise of a discretion.

46    The solicitor for the appellant, Mr Levingston, characterised the 1996 Explanatory Statement as expressing a “two year rule” with respect to spousal relationships. Mr Levingston noted that, prior to a policy change in 2014, PAM3 reflected the language of the 1996 Explanatory Statement set out above.

47    Mr Levingston contended that, as currently expressed, PAM3 may be characterised as an irrelevant consideration, that is, a matter that the Tribunal was required not to take into account. Mr Levingston observed that cl 820.211 is directed to the situation of a person who no longer holds a substantive visa. Accordingly, he submitted, it was inconsistent with the purpose of cl 820.211 to suggest that consideration should be given to whether an applicant was a person who has “deliberately manipulate[d] their circumstances to give rise to compelling reasons”. Mr Levingston submitted that the current terms of PAM3 lead irresistibly to the appellant, seeking to avail himself of the “compelling reasons”, being punished for having one of the characteristics that is necessary to invoke the power.

48    Mr Levingston further argued that the policy recorded in PAM3 is wholly negative and creates a mindset against the identification of “compelling reasons”.

49    Although he did not say so explicitly, I understood Mr Levingston’s underlying submission to be that PAM3 is ultra vires because it does not recognise a long-standing relationship of over two years between an applicant and sponsor, without more, as a “compelling reason” for not to apply the Sch 3 criteria.

50    Apparently in further support of the application for leave to amend the notice of appeal, the appellant contended that the FCCA judge’s references to Plaintiff M64/2015 at [31] and [64] raise a fresh issue which was not raised in the FCCA but which, it was said, appeared to have informed the FCCA judge’s decision. The Minister disputed this proposition, referring to both the hearing in the FCCA and subsequent written submissions, but neither party adduced evidence one way or another.

51    Plaintiff M64 concerned the construction of cl 202.222(2) of Sch 2, which required the assessment of whether or not there were compelling reasons for giving special consideration to granting permanent visas to the visa applicants. The relevant passages are set out at [18]-[19] above.

Consideration

52    The appellant did not identify the “fresh issue” raised by the FCCA judge’s reference to Plaintiff M64, nor did he explain how Plaintiff M64 is relevant to the question of whether PAM3 is ultra vires the Act and the Regulations. I do not accept that the FCCA judge’s reference to Plaintiff M64 provides any support for the leave application.

53    I reject the proposition that the 1996 Explanatory Statement contains or reflects a “two year rule”. As the appellant himself acknowledged, the 1996 Explanatory Statement does no more than broadly inform the exercise of the relevant statutory power.

54    Further, the terms of PAM3 do not have the punitive operation suggested by Mr Levingston and do not deprive the “compelling reasons” power of real operation. PAM3 does not state or imply that any person who seeks the benefit of the power will be presumed or perceived to be seeking an unfair advantage, or that such a person has deliberately manipulated their circumstances to give rise to compelling reasons. Further, the policy is not wholly negative: it positively identifies severe illness or incapacity preventing a person from regularising their visa status as circumstances that are reasonable to accept as “compelling reasons” for the waiver of the Sch 3 criteria.

55    It is not contentious that cl 820.211(2)(d)(ii) is facilitative in nature, but this observation does not go anywhere. The provision facilitates applicants who can demonstrate “compelling reasons”. The facilitative nature of the provision does not alter what is meant by “compelling reasons”, or permit a decision maker to conclude that it encompasses reasons that are not considered by the decision maker to be “compelling”.

56    Ultimately, Mr Levingtson’s argument is based on the premise that cl 820.211(2)(d)(ii) is intended to encompass long-standing relationships as “compelling reasons” for not applying the Sch 3 criteria. In the terms set out above, PAM3 does not dictate a conclusion to the contrary, although it identifies reasons why a long-standing relationship may not constitute “compelling reasons”.

57    Mr Levingston’s premise is flawed. The 1996 Explanatory Statement provides policy guidance as to what constitutes “compelling reasons”. PAM3 provides different policy guidance. PAM3 does not offend the limits of lawful policy identified above.

58    Accordingly, there is no merit in the contention that PAM3 is ultra vires.

Conclusion

59    The application for leave to amend the notice of appeal is refused.

60    As the appellant did not seek to rely upon any ground in the original notice of appeal, it follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    2 December 2019