Federal Court of Australia

Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 821

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 October 2017, which affirmed a decision of a delegate of the first respondent (respondent) not to grant the appellant, a citizen of Malaysia, a partner visa under s 65 of the Migration Act 1958 (Cth): Lee v Minister for Immigration & Anor [2020] FCCA 1357.

2    The sole ground of appeal contends that the primary judge erred by not finding that the Tribunal failed to comply with the requirement in s 360(1) of the Migration Act to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

3    For the reasons below, the appeal is dismissed.

Background

4    The appellant first arrived in Australia in 2007 on a visitor visa for a period of three months. She last arrived in Australia in July 2010, also on a visitor visa. In 2010, the appellant lodged a protection visa application which was unsuccessful. On 3 November 2015, the appellant applied for the partner visa subject to the present proceedings.

5    Criterion 3001 in Sch 3 of the Migration Regulations 1994 (Cth) required the appellant to lodge her partner visa application within 28 days of her last substantive visa. The appellant did not satisfy that requirement because she did not hold a substantive visa following the expiry of her last visitor visa in 2010. As a result, the appellant had to satisfy the delegate that there were compelling reasons to not apply criterion 3001. On 22 January 2016, a delegate refused to grant the appellant a partner visa on the basis that the delegate was not satisfied that there were compelling reasons for not applying criterion 3001 in Sch 3 of the Migration Regulations.

6    Before the delegate, the appellant claimed that the following compelling reasons existed: first, the appellant had commenced working in her husband’s (the appellant’s sponsor) business in 2011 and that he thereafter needed her assistance; second, the appellant was not able to marry her husband until he received a divorce on 10 October 2015; third, the appellant’s husband suffered from hypertension; and fourth, the appellant’s husband suffered an injury in 2013 which required the appellant to care for him. The delegate did not accept the first claim, and stated that “no documentary evidence” was provided to substantiate the claim. The delegate also did not accept the second claim stating that the evidence the appellant had “provided overall is limited and inconsistent with the claimed duration of your relationship”. The delegate appeared to accept the third claim, but found that this was not a life threatening condition and can be easily managed and controlled by medications. The delegate did not accept the fourth claim, stating “in the absence of documentary evidence from a medical professional, I do not consider it a compelling reason to waive the Schedule 3 criteria”. I note that the absence of medical evidence appeared to relate to both the third and fourth claims. The delegate also found that “there [was] a discrepancy regarding your sponsor’s residential address appears (sic) on his medical prescription and the submitted lease agreement”.

7    The appellant sought merits review of the delegate’s decision in the Tribunal. The appellant was invited to attend a hearing before the Tribunal in order to give evidence and present arguments. Both the appellant and her husband attended by video link and gave evidence. The appellant had the assistance of a migration agent. In its decision, the Tribunal identified the “main issue” as “whether there are compelling reasons for not applying the Schedule 3 criteria”. The Tribunal summarised the evidence and submissions made by the appellant. The Tribunal rejected the appellant’s claims in relation to the status of her visa and her 2010 application. The Tribunal, inter alia, rejected the appellant’s claims in relation to the sponsor’s high blood pressure, and the sponsor’s reliance on her for his ongoing health needs, on credibility grounds; claims as to the sponsor’s heart condition; the claims based on the need for the appellant to provide health and psychological assistance to the sponsor; and the claims relating to the effect on the appellant’s business. On 9 October 2017, the Tribunal made a decision to affirm the delegate’s decision, it not being satisfied that there were compelling reasons for not applying the Sch 3 criteria.

8    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 28 May 2020, the primary judge dismissed the application for judicial review. Only ground one of that decision, which corresponds to the sole ground in this Court, is presently relevant. The primary judge dismissed that ground finding, inter alia, that the appellant was on notice that credibility was in issue, that the impugned statements of the Tribunal member needed to be read in context and that the Tribunal did not fail to put the appellant “on notice that the dispositive issues would include the implications of the sponsor’s health conditions or the extent of his reliance upon her in running his business and the consequent hardship he would suffer”.

Submissions

9    The appellant relied on what she says are findings that the Tribunal: rejected the claims relating to the sponsor’s high blood pressure, and the sponsor’s reliance on the appellant for his ongoing health needs, on credibility grounds; rejected the claims as to the sponsor’s heart condition; rejected the claims based on the need for the appellant to provide health and psychological assistance to the sponsor; and rejected the claims relating to the effect on the appellant’s business (collectively, the topics). The appellant contended that the Court below erred in holding that the Tribunal, by not putting the appellant on notice and giving an opportunity for the appellant to comment on the issues identified by those findings, did not contravene s 360.

10    The appellant accepted that prior to the hearing she had received an invitation pursuant to s 360, and in accordance with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL), in the absence of any contrary indication, she was entitled to assume that the relevant issues were those identified by the delegate. The appellant characterises them as the lack of satisfaction as to the four matters identified in the paragraph above. The appellant submitted that the Tribunal, during the hearing, identified a further issue: the state of mind of the appellant in respect of her unlawful status and the application for a protection visa. She submitted the Tribunal made it clear by its statements that the only issue was the state of mind issue as the Tribunal expressly said so, in its “only pertinent issue” statement during the hearing. The context of the Tribunal’s questioning, it was submitted, also made it clear that this was the focus of the Tribunal hearing. It was submitted that the Tribunal gave the impression to the appellant and the migration agent that the issues had been narrowed and that a further hearing may be required. The appellant submitted that the delegate had not made credibility findings, but the Tribunal did in relation to the relevant four topics, and the appellant should have been notified that the Tribunal had such credibility concerns. The failure to do so is said to be a breach of the requirements in s 360. It was submitted that the Tribunal should have called the matter back on, held a subsequent hearing, and put the matters set out in the preceding paragraphs.

11    The respondent submitted that jurisdictional error had not been established. The essential requirement of s 360(1) is to “invite” an applicant for review to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal did this by providing its hearing invitation. Given the delegate’s decision, the effect of the Tribunal’s invitation was that the appellant was on notice that “on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant”: SZBEL at [35].

12    The respondent submitted that the transcript of the hearing before the Tribunal establishes that the Tribunal’s comments did not give “the impression that the issues had been narrowed”. It submitted that as the primary judge correctly found, at [37], the Tribunal’s “only pertinent issue” statement, read in context, did not have the “effect of narrowing the focus of the hearing or giving a clear indication to the applicant that only that issue would be a material issue”. The Tribunal invited post-hearing submissions. The appellant’s post-hearing material, most of which was submitted on 11 September 2017, comprises further written submissions as well as two further statutory declarations from the appellant and the visa sponsor. It addressed the duration of her relationship with the sponsor, the sponsor’s reliance on the appellant “for assistance in his business and in managing his health issues”, and submitted that these “amount to compelling reasons to waive the Schedule 3 criteria”. The respondent submitted that the appellant’s statutory declaration also addressed every relevant issue, including the circumstances of her knowing that she had become an unlawful non-citizen and why she should be allowed to apply for the partner visa onshore such as the sponsor needing her for health and psychological support and in his business. The sponsor’s post-hearing statutory declaration covered the same topics. On 28 September 2017, the Tribunal issued to the appellant a further invitation to comment or respond to information about some evidence concerning whether a fire occurred and regarding the sponsor’s divorce. On 5 October 2017, the appellant (through her migration agent) provided two further statutory declarations addressing those issues. The respondent submitted that the appellant in fact provided further submissions and statutory declarations to the Tribunal on every dispositive issue, which she was on notice about through the delegate’s decision and throughout the hearing and review. The respondent also submitted that the Tribunal’s comment about the migration agent “flying a bit blind”, properly read, does not have the connotation contended for. That statement is entirely anodyne and in fact demonstrates the Tribunal’s desire to be fair and helpful to the appellant.

Consideration

13    The respondent’s submissions must be accepted.

14    It is appropriate at the outset to recite s 360 which is in the following terms:

360 Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

 (2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

  (c)    subsection 359C(1) or (2) applies to the applicant.

15    As to the application of that provision, in SZBEL the High Court observed at [33]-[35], in relation to the relevantly similar s 425 (references omitted, emphasis in the original):

[33]    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.

[34]    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

[35]    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.…

16    The applicant also referred, in particular, to the analysis of Besanko J in AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494.

17    There is no issue between the parties as to the relevant principles, rather it is with their application to the circumstances in this case.

18    As referred to above, the appellant accepted that the invitation pursuant to s 360 provided to the appellant before the Tribunal hearing, in this case, was sufficient to put her on notice that the matters considered by the delegate to be dispositive were the “issues arising in relation to the decision under review”. Rather, the appellant’s case is premised on the factual proposition that the Tribunal narrowed the issue before it after it had commenced the hearing, such that the appellant and her migration agent were under the impression that the only issue for consideration was related to the appellant’s state of mind about whether she knew that she previously did not hold a visa. It was contended that it followed that the findings referred to above at [9], whereby the Tribunal rejected the claims relating to the sponsor’s high blood pressure, and the sponsor’s ongoing health needs, on credibility grounds; the sponsor’s heart condition; the need for the appellant to provide health and psychological assistance to the sponsor; and claims relating to the effect on the appellant’s business, were required to be raised with the appellant.

19    The appellant’s submission proceeded on the basis that the Tribunal rejected her claims on the topics on credibility grounds. However, at least in relation to some of the topics that is not readily apparent, on a proper reading of the reasons as a whole. It may be accepted that in respect to the topic of the sponsor’s blood pressure, that the Tribunal said that the appellant’s evidence on that topic was considered “in light of the its credibility findings of the [appellant’s] evidence” (which is based on topics other than those in question), “in circumstances where the [appellant] has not provided any medical evidence in relation to the sponsor”. No reference is made to credibility in respect to the remaining topics, and although these topics were considered in the context of credibility findings made about the appellant’s evidence on specific matters, in relation to the topics in question, the Tribunal appears not to have been satisfied because of the deficiencies in the evidence, including the lack of medical and other evidence supporting the claims. That is similar to the conclusions of the delegate. As correctly observed by the primary judge, the appellant did not provide any documentation, or address that issue of the lack of documentation, which was a significant matter for the delegate, in her pre-hearing or post-hearing written submission, nor at the hearing itself. In any event, given my findings below, whether those grounds were rejected on the basis the appellant contends, is of no moment.

20    The appellant accepted that if the Tribunal, during the hearing, did not narrow the issue in the manner she contends, that is, to the state of mind of the appellant in relation to her visa, there had not been any breach of the requirements of s 360 by the Tribunal. The appellant accepted it was necessary for that factual premise to be established, to succeed on the appeal.

21    A proper consideration of the conduct of the Tribunal proceedings, as reflected by the transcript of the Tribunal hearing, does not bear out the factual contention that the issue in the hearing had narrowed. The appellant has not established the necessary factual premise of her submission.

22    The description below of the proceedings before the Tribunal, and the circumstances in which they occurred, explains why that is so.

23    Relatively early in the hearing, the Tribunal raised the issue of whether the appellant was aware that she did not hold a visa. A discussion ensued, inter alia, about access to the Department file as to information about previous applications. In that context the following exchange occurred:

MEMBER:    …I think the issue of whether Mrs Lee thought she had a visa to stay or not is an issue of credibility. I don’t think it’s going to be resolved by production of any more of that file. It is one of the factors that I need to consider, in relation to compelling circumstances, so I just want to give you the opportunity, if you want to say anything about obtaining any further documents in relation to that. Now, Mrs Lee, you must let the second interpreter interpret, and this is a matter for Ms Jarvis. I think the issue is that there doesn’t seem to be a dispute that yes, it was a protection visa, yes, she didn’t go, yes, she had some representative that no one can ascertain and that there were claims made in relation to a protection visa. How far any further documentation is going to assist, I don’t know. So I just want to give you that opportunity, if you want to take it any further.

AGENT:    I’m happy to take instructions from my client on what is indicated in the decision record. In regards to obtaining further documentation, given the time period that’s passed – and I understand the tribunal doesn’t have the documents.....so I would be unaware if the department which still holds our original protection visa application, which is – my understand is, requires the private details of what ....based on. So I’m having to [remember]. We will be here today to take some instructions as to whether she wants to comment on any of that information or proceed with…submission today on the schedule 3 criteria. I understand take into consideration, just trying to make good use of our time…

MEMBER:    Sure. I think that the issue that – really, the only pertinent issue is whether Mrs Lee knew that she didn’t have a visa. That’s the pertinent issue.

24    Pausing there, a number of observations can be made about that passage. First, the appellant was informed that credibility is one factor which needs to be considered in relation to the compelling circumstances. Second, it is plain that there was always to be submissions to the Tribunal from the appellant in relation to the Sch 3 criteria which she wanted the Tribunal to consider. Third, the Tribunal’s reference to the “only pertinent issue”, which is the crux of the appellant’s case, read properly with what proceeded and followed, related to the issue of the appellant’s state of mind as to her visa status (and the Department file that had been discussed). It was not a general comment. I do not accept the appellant’s submission that the reference to “only pertinent issue” reflects that at that stage the Tribunal was satisfied about the other matters relied on by the appellant to establish compelling reasons and that her state of mind was the only matter to be considered. So much is plain from the passage that was just recited, but also what occurred thereafter.

25    Following that passage, there was an adjournment to enable the migration agent to speak to the appellant about whether the appellant knew that she did not have a visa.

26    After the adjournment, the migration agent made brief submissions to the Tribunal on that issue. The Tribunal then explained to the appellant the concept of “compelling reasons”, which included:

…Compelling reasons must be reasons that are so powerful or so persuasive that they persuade the decision maker, which, today, is me to not apply that requirement. Compelling reasons can be more than one reason, and they can be reasons that can be assessed over the period of the application, not just at [the] time of application. What is important is that this is not an assessment of the genuineness of the relationship; it’s only whether there are compelling reasons for being able to apply or lodge this application in Australia, rather than having to go off-shore. All right. So that’s what we’re going to discuss today.

27    Thereafter, the Tribunal said to the appellant, “I want the reasons why you should be able to apply to lodge the application onshore”.

28    The appellant then explained that her husband has “a little bit of high blood pressure and I have to stay here and look after him”. She also mentioned the need to “help with my husband’s business” by helping to interpret things in Mandarin. The Tribunal then asked further questions about the length of the appellant and sponsor’s relationship. The appellant later said that “I cook for my husband and I look after my husband at home because he works”. Afterwards, the Tribunal went through the appellant’s written statement provided to the Department and asked the appellant to explain the discrepancy between what appeared in her statement and what she was saying to the Tribunal. There was reference to the difficulties for her sponsor getting a divorce, and a fire that occurred at her premises. The Tribunal put to the appellant that “I don’t think you’re being truthful about any of this”. The appellant denied that proposition.

29    Before commencing the sponsor’s evidence, the Tribunal said to the appellant, “[n]ow, [appellant] at the end, if there’s anything that you need to say further about the evidence that your husband gives or about anything, you’ll be given that opportunity”. To the sponsor, the Tribunal then asked “Could you please tell me about your health?” He proceeded to do so.

30    After the sponsor had finished giving evidence, there was further discussion between the migration agent and the Tribunal about the Department file. This included the Tribunal stating, in a passage particularly relied on by the appellant, that:

…the oral evidence hasn’t been all that credible, and there’s been a focus by the review applicant and her husband on whether they were – whether she was ever knowingly unlawful, probably at the expense of all these other matters that they’ve put forward as compelling reasons. And I think – sorry, did I cut you off? I did. My apologies. But credibility plays a big issue in assessment of – of the – of all the compelling reasons, not – not just this one about whether she was unlawful or knew she was unlawful.

I think the appropriate course is, at this point – because I sort of have a sense now that you’re flying a bit blind, and I don’t want to create any sense of unfairness to Mrs Lee either. I think they’ve both given evidence about what they feel the compelling reasons are. If I conclude this part of the hearing and provide you with these two documents – and, in fact, I – I think the appropriate way to do is you – you just submit a form. I think it’s the – a 362A form or something. I’m not sure what you do or don’t have, but if you – if you could just apply for the department file.

31    However, that passage must be read in context, and shortly thereafter the following exchange occurred:

MEMBER:    And then, if – if you can put that in, sort of, fairly quickly, I’ll just make a note that that’s to be released with some haste.

 AGENT:        Yes. Yes.

MEMBER:    Haste. I – I won’t have this interpreted. I’ll just have a discussion with you. And then if you want some time to respond in submissions to that material. Is that a satisfactory way of dealing with this?

AGENT:       Yes, that’s satisfactory. And then after the – after the submission, if you needed to call another hearing on – we – we’ll be open to another hearing, or if you would like to do it on – on the facts of the documentation that we – we can have those forms filed and – and sent off tomorrow.

 MEMBER:      Okay.

 AGENT:          No problem.

32    Again, a number of observations can be made. First, after the adjournment the Tribunal proceeded to take evidence from the appellant (and her sponsor) about the bases on which she said that there were compelling reasons. This reflects, contrary to the appellant’s submission that the issue before the Tribunal had not been narrowed, and as at the time of the “pertinent issue” comment, that the Tribunal had not considered it had. Second, after the appellant gave evidence, including as to the topics referred to in [9] above, the Tribunal put to the appellant that she had not been truthful about “any of this”. The appellant’s credibility in relation to the relevant topics was, on a proper reading of the transcript, encompassed by that statement. Third, there is nothing in the transcript that reflects that the topics were not relevant or not being considered by the Tribunal. To the contrary, the Tribunal’s conduct reflected otherwise. This conduct included raising with the appellant the truthfulness of her evidence. Fourth, at the end of the hearing the Tribunal expressly said that credibility related to all the compelling reasons which were advanced. Fifth, the reference to “flying a bit blind”, in context, relates to the migration agent not having the Department file (which had been discussed just before the passage recited at [30] above). I do not accept the appellant’s submission that the statement was an admission by the Tribunal that it realised it had not given proper notice of the credibility issues about the topics. Finally, the appellant has not established there was any mutual understanding between the parties, or more particularly, that there was a misapprehension by the appellant and migration agent, that there would be a further hearing. As the passage recited in the paragraph above reflects, the migration agent agrees that once she received the file she would file a submission, and that was a satisfactory approach. Although the migration agent said that they would be open to a further hearing it was in a context where the agent agreed to submissions, and acknowledged that the Tribunal might “like to do it on – on the facts of the documentation”. The migration agent did not request any further hearing.

33    Relevant also is that the hearing was conducted in the context of the written submissions that were provided by the appellant to the Tribunal.

34    Prior to the hearing, submissions were filed by the appellant in response to the invitation by the Tribunal. The invitation there was accepted to comply with s 360. As noted above, this material did not include any documentary evidence supporting the claims or address any of the deficiencies identified by the delegate.

35    The Tribunal also invited post-hearing submissions. On 11 September 2017, a further written submission and two further statutory declarations from the appellant and her visa sponsor were submitted, that covered the topics which the appellant submitted “amount to compelling reasons to waive the Schedule 3 criteria”. Again, as noted above, the appellant did not in this material provide any documentary evidence or any other evidence to support her claims. On 28 September 2017, the Tribunal issued a further invitation to the appellant, to respond to some evidence concerning whether a fire occurred and regarding the sponsor’s divorce. On 5 October 2017, the appellant provided two further statutory declarations addressing those issues.

36    The appellant’s conduct after the hearing is inconsistent with her submission that she and the migration agent were under the impression that the issue had narrowed to her state of mind relating to her visa.

37    The appellant has not established the factual premise of her submission.

38    The appellant has not established that the primary judge erred in concluding that the appellant was on notice as to her credit at large being in issue, and that no further notice was required prior to the hearing. I note that from the transcript of the hearing that it was also evident during the hearing that credit at large was an issue, and it has not been established that the appellant was required to be provided with any further notice. Nor has the appellant established any error with the conclusions of the primary judge in respect to the issues not having been narrowed in the hearing by the reference to the “only pertinent issue”. The primary judge concluded at [37] (footnotes omitted, emphasis in the original):

In my view, the context of "the only pertinent issue" remark was clearly a reference only to the potential relevance of any further information that might be obtained from the Department file with respect to the protection visa application to the question of whether the applicant knew that she was unlawfully in this country from 2012, or in any event at some time prior to consulting the migration agent in 2015. I am not satisfied that the remarks of the Tribunal member had the effect of narrowing the focus of the hearing or giving a clear indication to the applicant that only that issue would be a material issue arising for determination on the hearing. I am fortified in that view by the following passage in the transcript immediately following the applicant's representative reaffirming the applicant's position as to her lack of knowledge of her unlawful status where the member said as follows:

"So what that means, as far as I understand it, Mrs Lee, is that you did not hold a substantive visa from 11 October 2010, but you're going to give some evidence that you thought you did. No. Now, the importance of that is that, when you apply on-shore, in Australia, for a partner Visa, if you are not the holder of a substantive visa, you need to demonstrate that there are compelling reasons for being able to apply on-shore. Compelling reasons must be reasons that are so powerful or so persuasive that they persuade the decision-maker, which, today, is me, to not apply that requirement. Compelling reasons can be more than one reason, and they can be reasons that can be accessed overt this he period of the application, not just at time of application (sic). What is important is that this is not an assessment of the genuineness of the relationship; it's only whether there are compelling reasons for being able to apply or lodge this application in Australia, rather than having to go off-shore. All right. So that's what we're going to discuss today ... Now, what do you tell me are the compelling reasons in your situation? "

39    The appellant has not established any error in that conclusion.

Conclusion

40    The appellant has not established her sole ground of appeal. The appeal is dismissed with costs.

Associate:

Dated:    22 July 2021