FEDERAL COURT OF AUSTRALIA

Ranouta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 235

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia made on 2 August 2019, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 20 October 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The appellant is a citizen of India. He married Ramandeep Kaur on 24 April 2016.

3    On 2 May 2016, the appellant applied for a partner visa on the basis of his relationship with his then wife, who sponsored the application. The application was refused by a delegate of the Minister on 30 June 2016.

4    The criteria for the grant of the visa were set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (as in force at that time). One of the criteria applicable to the appellant was that stipulated in clause 820.211(2)(d)(ii) of the Migration Regulations, being that the appellant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Criterion 3001 required the appellant to have made his visa application within 28 days after the relevant day, being (relevantly) the last day he held a substantive visa. It was common ground that the appellant did not satisfy that criterion, as the last day on which he held a substantive visa was 10 February 2010. It followed that the appellant could not satisfy the criterion in clause 820.211(2)(d)(ii) unless the Minister was satisfied that there were compelling reasons for not applying criterion 3001. In the present case, the Minister’s delegate was not so satisfied and accordingly refused to grant the visa.

5    On 21 July 2016, the appellant applied to the Tribunal for review of the delegate’s decision. On 19 October 2016, the appellant attended a hearing before the Tribunal. On 20 October 2016, the Tribunal published its reasons affirming the delegate’s decision.

6    On 18 November 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. On 8 May 2019, the appellant filed an amended application stating two grounds of review. Only the first of those grounds is re-agitated on this appeal. On 2 August 2019, the primary judge dismissed the application.

7    On 21 August 2019, the appellant filed a notice of appeal in this Court. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. The notice of appeal raises a single ground of appeal as follows (which, as already noted, re-agitates the first ground of review raised before the Federal Circuit Court) (errors in original):

The Tribunal ignored a relevant consideration in purporting to apply clause 820.211 (2)(ii) of schedule 2 of the Migration Regulations in that if criterion 3001 of schedule 3 of the Migration Regulations 1994 were not waived, the applicant would have to go offshore to lodge a spouse visa thereby causing the couple to be separated and the Tribunal failed to consider that after Mrs Kaur gave birth, she would need her husband's support and presence in Australia.

Particulars

a.     The Tribunal failed to consider the circumstances of the applicant and sponsor once the child were borne.

b.     The Tribunal failed to consider in the requisite sense, the sponsor's important evidence that the applicant will be needed in Australia once the baby were borne so that he can financially support the family.

8    For the reasons that follow, I dismiss the appeal with costs.

The Tribunal’s decision

9    The Tribunal identified the relevant issue as whether there were compelling reasons to waive the Schedule 3 criteria (at [5] and [12]).

10    The Tribunal explained that a range of circumstances might provide a reason for not applying the Schedule 3 criteria, stating (at [16]):

There could be compelling reasons for not applying the Schedule 3 criteria if, for instance, the Tribunal were satisfied that there is an Australian-citizen child of the relationship; that the parties have already been in a long-standing relationship; or that the sponsor is dependent upon the applicant and that it would be significantly detrimental to her physical or mental health and wellbeing for her to be separated from him while he was outside Australia or for her to accompany him abroad.

11    The Tribunal recorded the appellant’s submissions concerning the reasons to waive the Schedule 3 criteria at [17] and [25]. In summary, those reasons were that his wife (and sponsor) was 20 weeks pregnant and suffered from depression and would suffer emotional distress and hardship related to her health and mental wellbeing if she was separated from the appellant; his wife needed him to support her financially, emotionally and physically (helping with the cooking and cleaning); and in terms of the pregnancy, the sponsor needed the appellant in Australia because she would not be able to work in a few months and she would need him to provide for her financially.

12    The Tribunal made the following findings in relation to the question whether there were compelling reasons to waive the Schedule 3 criteria (as at the date of decision, 20 October 2016):

(a)    There was no Australian-child of the relationship (at [17]), but Mrs Kaur was 20 weeks pregnant with an estimated delivery date of March 2017 (at [24]).

(b)    While the appellant and his wife were married, their relationship was not long-standing: they began speaking regularly over the telephone in December 2015 and met face to face on 6 January 2016 in Melbourne and spent the day together; that same day, the sponsor travelled to India and did not return until 24 March 2016; the arrangements to get married were made during her trip and they married the day after she returned to Australia, on 25 March 2016; the couple started living together and registered their marriage on 24 April 2016; and the partner application was lodged on 2 May 2016 (at [18]).

(c)    After the appellant’s student visa was cancelled in 2010 and his application for review was dismissed, the appellant twice applied for a protection visa. Those applications were rejected. At the expiry of his bridging visas on 23 July 2012, the appellant remained unlawfully in Australia until the present application for a partner visa (at [19] and [20]). The Tribunal expressed its concerns about the apparent fabrications associated with the protection visa applications as follows (at [21]):

The Tribunal is most concerned that the applicant's claims for protection appear to have been fabricated as was the evidence to support it (the death certificates). The applicant's parents were not murdered by his uncle in September 2010, and are both alive and living in Punjab, India. The applicant's (sic) said he made this claim because he believed his parents were dead at that time and only found out after his claim was refused that his parents had not been murdered. In the same way, the applicant's claim that he was a homosexual man fearful of returning to India also appears fabricated. The applicant first denied making a claim at all, and then, after the Tribunal cited the specific evidence he gave to the RRT Presiding Member as outlined in the RRT decision (including the specific sexual acts he said he had performed which "proved" he was gay), the applicant suggested that "he may not" have understood what happened at the hearing because his English was "not good back then".

(d)    Having put its credibility concerns to the appellant and having considered his explanations, the Tribunal concluded that it did not consider that his explanations were credible or satisfactorily explained the nature of the anomalies in his evidence. The Tribunal stated that it had the impression that the appellant was making up his evidence as he went along and changing it whenever the Tribunal queried the veracity of what he was saying and that this cast considerable doubt on the appellant’s credibility and heightened the Tribunal’s concerns regarding his motives in making the partner visa application (at [22]).

(e)    The appellant and the sponsor had made only very general statements about how the sponsor’s physical or mental health or wellbeing was dependent on the care or support that the appellant provided. The generality of those statements, and the reservations that the Tribunal had about the appellant’s claims, led the Tribunal to be not satisfied that the appellant was the source of support to his wife that he claimed to be. In terms of the pregnancy, the Tribunal did not accept that the sponsor required significant care or assistance from the appellant notwithstanding that she was experiencing some pregnancy related issues including morning sickness and lower back pain (at [27]).

(f)    In relation to financial support from the appellant, the evidence before the Tribunal was that the appellant had had no work rights since 10 February 2010, although he was recently given work rights in September 2016. He did not have a job and has not received any income from other sources. The evidence indicated that the appellant and the sponsor had lived from the sponsor’s savings since March 2016 and had received some assistance from a friend of the appellant. The Tribunal concluded that there was no evidence to suggest that the appellant had financially supported the sponsor (at [28]).

13    The Tribunal reached the following conclusion (at [29]):

The Tribunal has considered the factors that were submitted to weigh in favour of waiving the Schedule 3 criteria. The Tribunal considers that, when properly examined, those factors do not weigh strongly in favour of waiver. Also to be weighed in the balance are the Tribunal's findings that the applicant's conduct with respect to his protection claims, and his long unlawfulness in Australia.

Decision of the Federal Circuit Court

14    The appellant raised two grounds of review before the Federal Circuit Court, but it is only necessary to consider the first ground (the second is not maintained on this appeal).

15    The primary judge rejected the first ground on the basis that the Tribunal did give consideration to the position of the sponsor once the sponsor had a child. The primary judge found that the sponsor’s claim that she would need the applicant's support “in a few months” in the context of her being 20 weeks pregnant could reasonably be taken to mean that she would need the appellant’s support following the delivery of their child (at [40]). The primary judge also concluded that the Tribunal’s findings with respect to the nature and extent of the appellant’s support were applicable both before and after the birth of the child (at [41] and [42]).

16    For the reasons that follow, I agree with the primary judge that there is no jurisdictional error in the Tribunal’s decision.

Consideration of the appeal

17    By its notice of appeal, the appellant contends that the Tribunal erred by failing to consider that, after the appellant’s wife gave birth, she would need the appellant’s support and presence in Australia. The appellant argued that the Tribunal wrongly confined its consideration to the period of the wife’s pregnancy and failed to consider the period after the child would be born.

18    The appellant put the ground of appeal on three bases. He argued that the his support for his wife in the period after the birth of the child was a mandatory relevant consideration as per Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 39 per Mason J, and the Tribunal erred in failing to take the consideration into account. Alternatively, he argued that, having made the submission to the Tribunal that his wife required his support in the period after the birth of the child, the Tribunal was required to consider the submission as per Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 (Dranichnikov) at [24] per Gummow and Callinan JJ, Hayne agreeing at [95], and that the Tribunal erred in failing to do so. To the extent that the appellant did not articulate the submission expressly, he says that the submission clearly emerges from the submissions and evidence before the Tribunal, requiring the Tribunal to consider the matter as per NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [55] and [68].

19    I reject the first basis upon which the appellant puts the appeal. As decided in Peko-Wallsend, the failure to take into account a relevant consideration can only constitute legal error if the consideration is one that the decision-maker is bound to take into account in making the decision. In the present case, clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations did not prescribe any considerations that the Minister must take into account in determining whether or not he or she is satisfied that there are compelling reasons for not applying the Schedule 3 criteria, and there is no basis in the subject matter, scope or purpose of the Migration Regulations or the Act for implying an obligation on the part of the Minister to consider the appellant’s future role as father to the child when born. Very recently, in Singh v Minister for Home Affairs [2020] FCAFC 7, the Full Court of this Court considered a similar argument: that the Tribunal had committed a jurisdictional error as a result of failing to take into account the best interests of the child when it refused to waive the Schedule 3 criteria, contending that Article 3 of the United Nations Convention on the Rights of the Child required the Tribunal to make the best interests of the child a primary consideration in reaching its determination. The Full Court rejected that argument. In the course of the Court’s reasons, Logan J concluded (at [7]) that “neither expressly nor by necessary implication does the regulation make the existence of an Australian-citizen child relevant in the sense explained by Sir Anthony Mason in Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-40”; Derrington J (with whom Reeves J agreed) likewise concluded (at [66]) that “There was no obligation on the Tribunal to take into account as a mandatory consideration, in ascertaining whether ‘compelling reasons’ existed, the interests of the appellant’s child — let alone make the interests of that child a primary consideration”.

20    I accept the second and third bases upon which the appellant put his appeal. The appellant’s submissions concerning the needs of his wife in the immediate future were substantial, clearly articulated arguments relying upon established facts in the sense considered in Dranichnikov. As discussed below, to the extent that the appellant did not clearly articulate a submission concerning his wife’s needs after the birth of the child, in my view that issue clearly arose on the materials in the sense discussed in NABE. Although I accept the bases upon which the appellant puts the appeal, I reject the appeal because, in my view, the Tribunal gave proper consideration to the appellant’s submissions.

21    It appears likely that the appellant’s wife was unaware of her pregnancy at the time of the delegate’s decision (30 June 2016), as the evidence includes a medical certificate dated 21 July 2016 stating that, as at that date, the appellant’s wife was 6 weeks and 6 days pregnant. In a submission to the delegate dated 6 June 2016, the appellant stated that his wife was suffering from anxiety, which required the appellant to be with her and not leave Australia.

22    The appellant made submissions to the Tribunal about his wife’s pregnancy. In late July 2016, the appellant sent a short submission to the Tribunal stating (errors in original):

I am writing in regards to my partner visa refusal as I didn't meet schedule 3 criteria. In this letter I am requesting you that I am in a genuine relationship with my wife Ramandeep Kaur. Now she got pregnant with 7 weeks as I have already provided the evidence of her pregnancy report with supporting documents. Apparently, I can't leave her in this condition alone. She needs emotional and physical support in this stage. Apart from that, she hasn't got any family or friends in Australia. So I have to look after her. Please consider my request for my partner visa application as per my circumstances.

23    The submission was directed to the needs of the appellant’s wife and was focussed on the period of pregnancy. That can be seen from the statements that the appellant “can’t leave her in this condition alone” (where condition is a reference to her pregnancy) and the appellant’s wife “needs emotional and physical support in this stage (where “stage” is a reference to her pregnancy). It is understandable that the appellant’s submissions were directed to those matters, because they reflected an immediate concern; his wife was 7 weeks pregnant and the appellant was focussed on her need during the expected 33 further weeks (7 months) of pregnancy.

24    The appellant reiterated that submission during the hearing before the Tribunal. By that time, the appellant’s wife was 19 or 20 weeks pregnant with an expected delivery in March 2017. The transcript of the hearing shows that the appellant referred to the fact of his wife’s pregnancy, and that they were having a child, on a number of occasions, and put forward his wife’s needs and his support for those needs as compelling reasons for the waiver of the Schedule 3 criteria. The appellant submitted that his wife would be unable to survive without the appellant in Australia; that he now had work rights and can undertake work, both for his wife and in the future for their child.

25    It is clear from the decision record that the primary submission advanced by the appellant as to why the Tribunal should waive the Schedule 3 criteria was that the appellant’s wife, who was then some 20 weeks pregnant, required his emotional, physical and financial support. Understandably, the appellant’s submissions were focussed on the immediate future, being the period of his wife’s pregnancy. If the appellant had to leave Australia in order to apply for a partner visa, the impact on his wife would be immediate and that would occur during her pregnancy. It could not be known at that time how long the appellant would need to be offshore pending the processing of an offshore partner visa application, and whether that period might extend to a time after the birth of the child. Nevertheless, the appellant’s submissions concerning the needs of his wife would clearly extend to the period after the birth of the child. In that sense, the concerns raised by the appellant could properly be understood as applying to both the period of his wife’s pregnancy and the period after birth.

26    In my view, the Tribunal gave proper consideration to the appellant’s submission. However, for the reasons set out earlier, it concluded that the appellant’s submission did not weigh strongly in favour of waiving the Schedule 3 criteria. Three points should be noted.

27    First, the Tribunal was aware of the wife’s pregnancy. It expressly referred to the fact that the appellant’s wife was 20 weeks pregnant, it discussed her health during the pregnancy and noted the expected delivery date ([at 24]). While the Tribunal referred to the fact that “There is no Australian-child of the relationship” (at [17]), I reject the appellant’s submission that this indicates that the Tribunal disregarded the fact that the appellant and his wife were expecting a child and that, in a further 20 weeks, the child would be expected to be born.

28    Second, the Tribunal assessed the support that the appellant claimed he would be able to provide to his wife. The Tribunal expressed its findings at [27] and [28] as follows:

27. The applicant and the sponsor have made only very general statements about how the sponsor's physical or mental health or wellbeing is dependent on care or support that the applicant provides. The generality of those statements, and the reservations that the Tribunal has about the applicant's claims, lead the Tribunal to be not satisfied that he is the source of support to her he claims to be. In terms of the pregnancy, the Tribunal does not accept that the sponsor requires significant care or assistance from the applicant notwithstanding that she is experiencing some pregnancy related issues including morning sickness and lower back pain.

28. The sponsor indicates that she also needs the applicant to provide for her financially. The evidence before the Tribunal is that the applicant has had no work rights since 10 February 2010, although he was recently given work rights in September 2016. He does not have a job and has not received any income from other sources. The evidence would indicate that the applicant and the sponsor have lived from the sponsor's savings since March 2016 and have received some assistance from the applicant's friend. The sponsor is now receiving some salary although it is limited since she is working casual one day or so per week. The applicant said she had applied for Centrelink recently but this had not been finalised because she did not have the relevant paperwork. There is no evidence to suggest that the applicant has financially supported the sponsor at this time.

29    I reject the appellant’s submission that those findings by the Tribunal are only addressed to the future period of the wife’s pregnancy. In my view, that is not a fair reading of the findings. In considering whether there were compelling reasons to waive the Schedule 3 criteria, the Tribunal addressed the asserted consequences of the appellant leaving Australia to apply for a partner visa. That was a forward looking assessment, having regard to presently known facts. The Tribunal’s reasons, fairly read, express its findings on that forward looking assessment, without limiting itself to the immediate future or the period of pregnancy. The Tribunal expressed doubt about, and ultimately gave little weight to, the appellant’s submissions concerning the appellant’s support for his wife, emotionally, physically or financially. In my view, the findings were directed to the foreseeable future and included the period after the birth of the child. The fact that the Tribunal referred to the wife’s pregnancy in the last sentence of paragraph 27 does not support a conclusion that the Tribunal’s consideration was confined to that period; nor does the statement, in the last sentence of paragraph 28, that the appellant had not supported his wife financially to that point in time, indicate that the Tribunal was not considering the foreseeable future.

30    Third, the Tribunal ultimately concluded that the appellant’s reason for waiving the Schedule 3 criteria, to provide support for his wife, then 20 weeks pregnant, did not weigh strongly in determining whether there were compelling reasons to waive the criteria. The Tribunal weighed more strongly the appellant’s conduct in his previous protection claims (which the Tribunal found to have involved fabrications) and the appellant’s long period of unlawful residence in Australia (at [29]).

31    In my view, reading the Tribunal’s reasons fairly and as a whole, the Tribunal gave proper consideration to the appellant’s submissions concerning his wife’s need for his support and presence in Australia in the immediate future, which included the period of his wife’s pregnancy and the period after the expected birth of their child.

Conclusion

32    The appellant has failed to identify any jurisdictional error on the part of the Tribunal. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    28 February 2020