Federal Court of Australia

SZQCN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 186

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

3.    The costs referred to in order 2 be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), which amount is not to exceed the short form amount prescribed by item 15.2 of Schedule 3 to the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant (to whom I will refer respectfully as “Mr SZQ”) appeals from the decision of a judge of the Federal Circuit Court of Australia (as it then was) (FCC): SZQCN v Minister for Immigration & Border Protection [2019] FCCA 2911 (the FCC decision). The primary judge dismissed Mr SZQ’s application for judicial review of a decision of the Migration Review Tribunal, as it was then known (the Tribunal). By that decision, the Tribunal had affirmed the decision of a delegate of the first respondent not to grant the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa (the partner visa) under s 65 of the Migration Act 1958 (Cth) (the Act) and cl 820.221 of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).

2    For the reasons set out below, the appeal should be dismissed.

2.    BACKGROUND

3    Mr SZQ, a citizen of Nepal, arrived in Australia on 2 March 2010 as the holder of an Entertainment (Subclass 420) visa, which ceased on 20 March 2010. On 19 March 2010, he applied for a protection visa. On 16 December 2010, the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused that visa application (the protection visa decision). On 9 March 2011, the Tribunal (differently constituted) affirmed the protection visa decision. On 8 May 2012, Mr SZQ’s subsequent application for Ministerial intervention was finalised as not considered.

4    On 12 June 2012, Mr SZQ lodged a partner visa based on his relationship with his sponsor, who was Mr SZQ’s then partner (the partner visa application). His sponsor was born in Fiji and granted Australian citizenship in June 1996.  The partner visa application was received on 12 June 2012 and refused on 9 September 2013 (the partner visa decision). The partner visa decision was affirmed on review on 3 March 2015 (the Tribunal decision).

2.1    Tribunal decision

5    The Tribunal hearing on 3 March 2015 was conducted with the assistance of a Nepali interpreter. While Mr SZQ did not provide any supporting statement (other than the material provided with the partner visa application), he appeared before the Tribunal to give evidence and present arguments.

6    In his oral evidence, Mr SZQ confirmed that he was no longer in a relationship with his sponsor, as it had ended approximately 8 or 9 months prior to the hearing date due to arguments about money (Appeal Book (AB) 201–2).

7    In response to the Tribunal’s questioning, Mr SZQ confirmed that his sponsor had not died, they had not had a child together and there was no suggestion of his sponsor having committed family violence against him (AB 202). The Tribunal explained to Mr SZQ that he did not meet the partner visa requirements if his relationship with his sponsor had ended (AB 200, 202).

8    When the Tribunal asked Mr SZQ if there was “anything that was different or extraordinary or unique in [his] circumstances at the time [he] lodged the application” which meant that he could not return to Nepal, Mr SZQ stated that he “fell in love with her … but later on the relationship didn’t last but I still love her and I can’t go back” (AB 203).

9    The Minister’s submissions dated 3 December 2021 (1RS) conveniently summarise the Tribunal’s findings at [11] as follows:

(a)    Clauses 820.211(2)(a) and 820.211 require that the applicant is a spouse or de facto partner both at the time of application and the time of decision.

(b)    Because the appellant was no longer in a de facto relationship with his sponsor, he and the sponsor did not have a mutual commitment to a shared life, they lived separately and apart on a permanent basis and did not have a genuine and continuing relationship.

(c)    The appellant did not meet the requirements of s.5CB(2)(a)-(c) and cl.820.221 of the Regulations.

(d)    It was not in dispute that the appellant did not have a substantive visa at the time of his application. The appellant was required to satisfy the Schedule 3 criteria of the Regulations (relevantly, criterion 3001). The appellant’s last substantive visa had ceased on 20 March 2010 and the visa application was lodged on 12 June 2012, more than 28 days after the date of his last substantive visa. As a result, the appellant did not satisfy criterion 3001 of the Regulations.

(e)    It was not satisfied that “being in love” was a sufficiently compelling reason at the time the appellant lodged the [partner] visa for not applying the Schedule 3 criteria (emphasis added). The appellant did not meet cl.820.211(2)(d)(ii) of the Regulations.

(f)    There was no evidence that the appellant met any of the alternative criteria in cl.820.211(3) – cl.820.211(9).

(Emphasis in the original.)

10    For the reasons summarised in the preceding paragraph, the Tribunal found that Mr SZQ did not satisfy the criteria for the grant of the partner visa. Therefore, the Tribunal affirmed the partner visa decision.

2.2    Federal Circuit Court of Australia proceeding

11    On 25 March 2015, Mr SZQ applied for judicial review of the Tribunal decision in the FCC (the judicial review application). The FCC subsequently made orders summarily dismissing the judicial review application. On 21 July 2015 and by consent, this Court set aside those orders and remitted the judicial review proceeding to the FCC (differently constituted) for hearing and determination according to law on the basis that:

(1)     the FCC had erred in summarily dismissing the proceeding at the first Court date without affording Mr SZQ an opportunity to file further evidence, in the manner and circumstances identified in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; (2015) 229 FCR 317; and

(2)    in so doing, the FCC had acted in a way that was procedurally unfair (AB 177).

12    Following the remittal, Mr SZQ was afforded the opportunity to file further evidence and to attend a hearing before the FCC. In circumstances where Mr SZQ failed to do either, the primary judge dismissed the judicial review application. On 21 March 2017, the judicial review proceeding was reinstated on Mr SZQ’s application. He then filed evidence which comprised an affidavit annexing a transcript of the Tribunal hearing on 3 March 2015.

13    On 15 October 2019, the FCC dismissed the judicial review application after permitting the parties to file and make any further written and oral submissions respectively in light of the High Court’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain), which was delivered on 15 August 2018 (primary judge’s reasons (PJ) at [6], [60]).

14    As the Minister submitted, the primary judge addressed three distinct issues in her Honour’s reasons (1RS at [12]):

(1)    the claims said to have been made by Mr SZQ (PJ at [25]–[36]);

(2)    whether the Tribunal had erred in having regard only to circumstances at the time the partner visa application was made in considering whether there were “compelling reasons” not to apply the criteria set out in sch 3 to the Regulations (the Sch 3 criteria), bearing in mind the Full Court’s decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (Waensila) (PJ at [37]–[49]); and

(3)    the materiality of any error made by the Tribunal (PJ at [50]–[59]).

15    With respect to issue (1), Mr SZQ claimed that he had misunderstood the Tribunal’s question about family violence (PJ at [25]–[27]). Mr SZQ submitted that he did not know that it included “mental torture” and that the behaviour of his sponsor may have amounted to family violence, insofar as she repeatedly asked him for money and threatened to end her sponsorship of him. The primary judge found at [27] that such contentions constituted Mr SZQ seeking impermissible merits review, as “[t]here is no suggestion that he made such a claim to the Department or the Tribunal or sought to put any evidence before the Department or the Tribunal in support of any claim of family violence at any time (let alone evidence in accordance with Division 1.5 of the Regulations)”. Moreover, her Honour accepted the Minister’s submission that it could not be said that a claim of family violence was raised clearly or squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) (PJ at [35]–[36]).

16    With respect to issue (2), the primary judge highlighted the following aspects of the Tribunal hearing transcript and the member’s reasons for the Tribunal decision (at [48]):

… The Tribunal member twice told the Applicant that what were in issue were compelling reasons that existed at the time of his visa application or anything that was different or extraordinary or unique in his circumstances at the time he lodged the application. Moreover, in its reasons for decision, in considering the Schedule 3 criteria the Tribunal clearly understood that what the Applicant had addressed was whether there were compelling circumstances for not applying those criteria at the time of the visa application (as he had been asked to do). It was those time of application circumstances to which the Tribunal referred in finding that it was not satisfied that “being in love” was a sufficiently compelling reason for waiving the Schedule 3 criteria. It was on this basis that the Tribunal then found that the Applicant did not meet the criterion in cl.820.211(2)(d)(ii).

(Emphasis added.)

17    Her Honour concluded that the Tribunal had misunderstood the law in its consideration of compelling reasons for the purposes of cl 820.211(2)(d)(ii) in sch 2 to the Regulations. The primary judge observed that Waensila is authority for the proposition that the waiver power in that clause requires the Tribunal to consider whether there are compelling reasons existing at the time of decision, in addition to the date of the application. Her Honour noted that the Tribunal’s approach also revealed a failure to consider post-application matters that Mr SZQ raised at the Tribunal hearing (namely, that the relationship did not last after the application was made, but that he still loved his sponsor and that he could not go back to Nepal) (PJ at [49]).

18    With respect to issue (3), the primary judge accepted the Minister’s submission that the Tribunal’s error was not jurisdictional “because it was not material to the outcome of the review in the sense that it did not affect the Tribunal’s exercise of power”, relying on Hossain (PJ at [54]). This is because there was a separate and independent basis for the Tribunal decision. Mr SZQ had conceded that his relationship with his sponsor had come to an end; therefore, the Tribunal “was not and could not be satisfied that [Mr SZQ] and the sponsor had a mutual commitment to a shared life to the exclusion of others at the time of decision” (PJ at [55]). The primary judge held that the Tribunal “had no option” but to affirm the partner visa decision in circumstances where:

(1)    Mr SZQ did not meet the criterion in cl 820.221(1) in sch 2 to the Regulations;

(2)    there was no evidence before, or claim made to, the Tribunal that Mr SZQ met any of the alternative criteria in cls 820.221(2)–(3) in sch 2; and

(3)    the Tribunal’s reasoning in respect of the cl 820.221 criterion was unaffected by its error in relation to the cl 820.211 criterion about compelling reasons for not applying the Sch 3 criteria, (PJ at [55]).

19    Accordingly, her Honour dismissed Mr SZQ’s judicial review application.

2.3    Federal Court of Australia proceeding

20    On 28 October 2019, Mr SZQ appealed to this Court from the FCC decision. The notice of appeal dated 28 October 2019 lists the following “grounds of appeal”:

1.     Her Honour Judge Barnes made her judgment on 15 October 2019 and the hearing dates were 5 May 2017, 25 September 2017 and 4 October 2018.

2.     I continue to believe that the decision by Her Honour is affected by error of law because at the time of the Tribunal decision my partner and I had compelling circumstances and the Tribunal found that I did not satisfy criterion 3001.

3.     I continue to believe that the Tribunal erred in its consideration of compelling reasons.

4.    I am hoping that the Federal Court of Australia will look at my situation differently than the Federal Circuit Court because I am not represented.

21    On 13 November 2019, the Federal Court of Australia’s National Operations Team sent an email to the parties advising that in the ordinary course, this appeal should be listed in the May 2020 Full Court and Appellate sitting period in Sydney. Due to restrictions imposed as a result of the COVID-19 pandemic, the hearing was subsequently delayed on a number of occasions. This occurred in order to facilitate an in person hearing, noting that Mr SZQ was self-represented and required an interpreter.

22    On 4 November 2021, I made orders requiring the parties to advise the NSW Appeals Unit by 4:00pm on 11 November 2021 of their capacity to attend the in person hearing that I had listed on 22 November 2021, noting that at that time, in person attendees were required to:

(1)    have received two doses of a COVID-19 vaccine; and

(2)    be prepared to present evidence of the same prior to entering the Law Courts Building at Queens Square, Sydney.

23    Notation 4 accompanying the orders made on 4 November 2021 provided that “[i]n the absence of confirmation that both parties are in a position to comply with [these requirements], Justice Perry proposes to determine this matter on the papers”.

24    On 12 November 2021, I vacated the hearing and ordered that the appeal be determined on the papers, in circumstances where Mr SZQ had failed to comply with the requirements set out at [22] above and did not respond to attempts made by the NSW Appeals Unit to contact him by email on 4 November 2021 and again by email and telephone on 11 November 2021.

25    On 26 November 2021 and after I had extended his time to do so, Mr SZQ filed short written submissions (AS). The Minister’s submissions were filed on 3 December 2021.

3.    RELEVANT LEGISLATIVE PROVISIONS AND PRINCIPLES

26    The Regulations prescribe primary and secondary criteria to be satisfied for the grant of the partner visa. As at the date of the Tribunal decision on 3 March 2015, cl 820.211 of sch 2 relevantly provided as follows under the subheading “Criteria to be satisfied at time of application” (emphasis added):

(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 … ; and

…

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

…

(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.

27    Schedule 3 of the Regulations set out “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders” (emphasis added). Clause 3001 required the application to be “validly made within 28 days after the relevant day (within the meaning of subclause (2))”. Given that Mr SZQ “ceased to hold a substantive … visa on or after 1 September 1994”, the relevant day for the purposes of cl 3001(1) was “the last day when the applicant held a substantive … visa” (cl 3001(2)(c) of sch 3 to the Regulations).

28    Clause 820.221 of sch 2 to the Regulations relevantly provided as follows under the subheading “Criteria to be satisfied at time of decision” (emphasis added):

(1)    In the case of an applicant referred to in subclause 820.211(2) …, the applicant either:

(a)    continues to meet the requirements of the applicable subclause; or

(b)    meets the requirements of subclause (2) or (3).

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

(a)    would continue to meet the requirements of subclause 820.211(2) … except that the sponsoring partner has died; and

(b)    satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

(c)    has developed close business, cultural or personal ties in Australia.

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

(a)    the applicant would continue to meet the requirements of subclause 820.211(2) … except that the relationship between the applicant and the sponsoring partner has ceased; and

(b)    either or both of the following circumstances applies:

(i)    either or both of the following:

(A)    the applicant;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner …

29    Section 5CB of the Act defines a person as being the “de facto partner” of another person if, under sub-s (2), the person is in a “de facto relationship” with the other person. A “de facto relationship” is defined to include a relationship where the persons are not married but they have “a mutual commitment to a shared life to the exclusion of all others” and “the relationship between them is genuine and continuing” (sub-ss 5CB(2)(a)–(b) of the Act).

4.    CONSIDERATION

30    The question for this Court is whether the primary judge erred in dismissing Mr SZQ’s judicial review application.

31    As the Minister correctly identifies, Mr SZQ’s notice of appeal extracted at [20] above reduces to one ground of appeal, namely, “that the primary judge failed to find that at the time of the [Tribunal decision] he and his partner had compelling circumstances justifying not applying criterion 3001 of the Regulations” (1RS at [6]).

32    That ground must be dismissed.

33    First, the primary judge was right to accept that the Tribunal erred in its consideration of whether compelling circumstances justified waiving criterion 3001 in sch 3 to the Regulations on the ground that the Tribunal had failed to consider whether compelling reasons existed at the time of its decision, and not merely when Mr SZQ made his application for the visa (applying the decision in Waensila). As the Minister submitted, that finding by the primary judge was in Mr SZQ’s favour and neither he nor the Minister challenge that finding on the appeal. While, absent any other considerations, that error would have sufficed for the Tribunal decision to be set aside, the primary judge held that in this case there was a separate and independent basis for the Tribunal decision, namely, that: Mr SZQ did not meet the criterion in cl 820.221(1) in sch 2 to the Regulations requiring that he was in a de facto relationship with the sponsoring partner not only at the time of his visa application in accordance with cl 820.211(1), but also at the time that the Tribunal made its decision. That conclusion was plainly correct. As the Minister submits:

… the premise upon which her Honour’s conclusion about materiality was constructed was correct … [i]t is clear that the statutory provisions delineate at least two distinct matters that need to be satisfied: the continuing status of the applicant’s de facto relationship and the validity of the applicant’s visa application (and if applicable, whether, based on all the circumstances including those obtaining up to the date of decision, criterion 3001 should not be applied). Both questions need to be addressed; if an applicant fails on one then that is sufficient for the visa application to be rejected, irrespective of whether the applicant succeeds on the other question. Indeed, if an applicant fails to satisfy the decision-maker as [to] their continuing relationship status it is not strictly necessary for the decision-maker [to] have to go further.

34    It follows that, even if the Tribunal had not erred in applying the 3001 criterion, it would still have been obliged to make the same decision refusing the grant of the partner visa because Mr SZQ did not meet the cl 820.221 criterion. In those circumstances, Mr SZQ has not established that an error was made by the Tribunal which affected the validity of its decision. In other words, the error was not material to the Tribunal decision. As I recently explained in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 (citations omitted):

147. … a legal error by an administrative decision-maker will generally not sound in jurisdictional error if the error was not material or critical to the ultimate conclusion: … As Bell, Gageler and Keane JJ explained in [Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA)], “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision” (at [45]; emphasis added). …

148. In expanding upon the correct approach to materiality in the context of a finding that the Minister had failed to appreciate that the lack of an obligation to accord procedural fairness in that case did not entail a lack of power to do so, Mortimer and Bromwich JJ in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 (Chamoun) explained that:

66. … We are not required to be satisfied it is more likely than not [that the Minister] would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.

(Emphasis added.)

35    Secondly, insofar as Mr SZQ challenges the primary judge’s decision on the ground that her Honour should have found that compelling circumstances existed, the submission must fail. It seeks impermissibly to ask the Court to decide the merits of his partner visa application. However, neither the FCC nor this Court has power to grant Mr SZQ a visa or to determine whether he meets the criteria for a visa. The Court only has the power to decide whether the Tribunal decision was made lawfully under the Act.

36    Thirdly, as the Minister submits, Mr SZQ’s two-page written submissions filed on 26 November 2021 principally appeared to raise an issue different from that raised by the ground of appeal, namely Mr SZQ’s “understanding of the term “family violence” and the evidence that he gave to the Tribunal on that point” (1RS at [7]). No appellable error is disclosed either in this respect. Again no error has been demonstrated in the primary judge’s reasons for holding that no such claim had been raised clearly or squarely on the material before the Tribunal, applying the principles enunciated in authorities such as the Full Court’s decision in NABE.

5.    CONCLUSION

37    The appeal must be dismissed with Mr SZQ to pay the Minister’s costs in a fixed amount as agreed or assessed. The amount of costs awarded is not to exceed the short form amount prescribed by item 15.2 of sch 3 to the Federal Court Rules 2011 (Cth), and to be set bearing in mind the lack of any complexity in the issues raised on the appeal.

Associate:

Dated:    8 March 2022