FEDERAL COURT OF AUSTRALIA

Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

KATZMANN J:

1    Yue Qin is an unsuccessful applicant for a Partner (Temporary) (Class UK) visa. At the time he applied for the visa, he was an unlawful non-citizen within the meaning of s 14 of the Migration Act 1958 (Cth), that is to say he was a non-citizen in the migration zone who did not hold a substantive visa. A delegate of the Minister refused the application because he did not satisfy a criterion for the grant of the visa and there were no compelling reasons to justify waiving that criterion. The Administrative Appeals Tribunal affirmed the delegate’s decision and the primary judge dismissed an application for judicial review of the Tribunal’s decision. This is an appeal from that judgment.

2    For the following reasons the appeal must be dismissed.

Background

3    Mr Qin arrived in Australia on 12 August 2004, while travelling with a Chinese tour group on a subclass TR-676 (Tourist) visa. The visa was valid for 18 days. While holidaying, the appellant applied for a protection visa which was refused by a delegate of the Department on 15 September 2004. That decision was affirmed by the Refugee Review Tribunal, the functions of which are now performed by the Tribunal, on 16 December 2004. Judicial review was sought and refused. The appellant then lodged two unsuccessful applications for Ministerial intervention on. He was subsequently granted a bridging visa E in 2010 and 2011 on departure grounds but he did not depart Australia and stayed onshore illegally. He met his sponsor in 2012 and they married on 14 February 2014, eight days after he applied for the partner visa.

The legal framework

4    Section 65 of the Act vests in the Minister a power and a duty to grant a visa if, amongst other matters, the Minister is satisfied that the criteria prescribed in the Act and regulations have been met and, if not, to refuse to do so (s 65(1)(a)(ii)). That power was delegable (s 499).

5    The criteria for the grant of a Subclass 820 (Partner)(Temporary) visa were set out in Pt 820 of Sch 2 of the Migration Regulations 1994 (Cth). The criteria to be satisfied at the time of the application were listed in cl 820.21.

6    One of those criteria, which applied to an applicant at the time of the application, was the criterion contained in cl 820.211(2), namely:

(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.

7    In order to satisfy criterion 3001 the application for the visa had to be lodged within 28 days after “the relevant day” as defined in cl 3002(2). For the appellant’s purposes, the relevant day was the last day he held a substantive visa (cl 3001(2)(c)(iii)). That day was 30 August 2004.

The application before the Tribunal

8    The appellant did not deny that his application was out of time. Rather, he contended that there were compelling reasons for not applying the Sch 3 criteria. They were: the sponsor’s financial reliance on him; his non-financial contributions to the relationship; the sponsor’s gynaecological health; a doctor’s advice that the sponsor would benefit from conceiving a baby; the sponsor’s emotional dependence on the appellant; the adverse effects of separation on her physical and mental health; and the reasons for the delay (his fear of persecution in China and the sponsor’s health), which were beyond the appellant’s control. He presented evidence to support his contention and to convince the Tribunal that his marriage was genuine and continuing. He also argued that he should not be prejudiced merely because of his adverse migration history.

9    At the hearing, when asked why he did not leave the country in 2011 and decided to remain in Australia unlawfully, the appellant told the Tribunal that he did not seek proper legal advice and did seek to engage with the Minister’s Department.

10    The Tribunal identified the issues as:

(1)    whether the appellant and his sponsor were in a genuine and continuing spousal relationship;

(2)    whether the appellant satisfied the Sch 3 criteria; and, if not

(3)    whether there were compelling reasons for not applying the criteria.

“Compelling reasons”

11    The power in cl 820.211(2)(d)(ii) is “properly characterised as a power to waive or dispense with” compliance with the criteria in Sch 3 for “compelling reasons”: Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 at [52] (Griffiths J).

12    The expression “compelling reasons” in cl 802.211(2)(d)(ii) is not defined.

13    In a similar context, the plurality in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (French CJ, Bell, Keane and Gordon JJ) held at ([31]) that for reasons to be “compelling” they “must ‘force or drive the decision‑maker’ ‘irresistibly’ to be satisfied that ‘special consideration’ should be given to granting the particular application” (citations omitted). Similarly, in a separate judgment (citations again omitted) Gageler J observed at [64]:

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’– ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition’. 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.

14    The context in that case was the criterion in Sch 2 cl 202.222(2), relates to the grant of various humanitarian visas which at the relevant time, provided for the grant of a visa if the Minister was satisfied that there were “compelling reasons for giving special consideration to granting the applicant a permanent visa”, having regard to a number of matters set out there.

15    The proposition that, for reasons to be compelling, they must force or drive the decision-maker to a particular result was drawn from the joint judgment of Tamberlin, Conti and Jacobson JJ in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [23]. That case was concerned with the meaning of “compelling circumstances” in reg 1.20J(2), which entitled the Minister to approve the sponsorship or nomination of an applicant for a provisional partner visa, despite not being satisfied of the preconditions for approval, if the Minister was satisfied that there were “compelling circumstances affecting the sponsor or nominator”.

16    The adverb “irresistibly” and the adjective “irresistible” were drawn from Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 at [32] in which, in the absence of a statutory definition, Crennan J referred to the dictionary definitions of “compel” and “compelling”.

17    Paduano was concerned with the meaning of the expression “compelling reason for the [applicant’s] absence” from Australia for five years or more from the date the applicant’s most recent permanent visa was granted, which appears in cl 155.212(3A)(b)(i) of the Regulations. Her Honour remarked at [37]:

The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that “compelling reasons for the absence” must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.

MSI was an acronym for Migration Series Instructions, a policy guideline produced by the Minister’s Department.

18    In Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166 at [24] Gleeson J applied Plaintiff M64 to cl 820.211(2)(d), holding that in order to find compelling reasons, the Tribunal is required to identify reasons that would “force or drive” it to decide that the Sch 3 criteria should not apply to the visa applicant.

19    In Waensila the meaning of “compelling reasons” was considered by a Full Court of this Court. In his judgment, Griffiths J referred (at [13]) to the following extract from the Explanatory Statement to the Migration Regulations (Amendment) 1996 No 75 (Cth) which introduced the relevant form of cl 820.211(2)(d)(ii):

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.

20    His Honour observed (at [54]) 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”.

21    As the Minister submitted, a good deal of latitude is given to the administrative decision-maker. A broad and subjective evaluation is involved: Plaintiff M64 at [25], [56] (French CJ, Bell, Keane and Gordon JJ).

The Tribunal’s reasons

22    The Tribunal determined that the appellant did not satisfy the Sch 3 criteria because his application was not lodged within the prescribed period. The Tribunal made no finding about the first issue, although it acknowledged (at [28]) and [32]) that there was credible evidence of the genuineness and, by inference, the duration of the marriage. At [32] it observed:

However, this forms the basis of all partner visa applications and is not considered by the Tribunal to be a compelling reason. The Tribunal notes, however, that whilst this information may well be supportive of a subclass 309 or 820 partner visa application, in this Schedule 3 matter, it is not.

23    With respect to the third issue, the Tribunal concluded that the reasons given by the appellant for not applying the criteria were “not sufficiently compelling, either individually or cumulatively” (at [39]).

24    On the question of the sponsor’s financial reliance on the appellant, the Tribunal noted that she had a full-time job, an annual salary of $70,000, plus a bonus and superannuation. It acknowledged that the sponsor will suffer hardship without Mr Qin’s emotional support but considered that “spouses in a genuine married relationship should be able to withstand some hardship from time to time… particularly where they have friends and family to support them, as this couple has” (at [29]–[30]).

25    The Tribunal took into account the evidence concerning the sponsor’s gynaecological health and accepted that she had had medical treatment, for them, including surgery. The Tribunal also accepted that Mr Qin had been “very supportive of the sponsor, both physically and emotionally,” and that, together with the sponsor’s mother, he took care of her when she was ill (at [33]). The Tribunal noted the appellant’s claim that he and his wife were seeking “IVF advice” but also noted that no information had been proffered that they had “actively engaged in the IVF process” (at [33]). While it referred to an opinion from his wife’s general practitioner, to the effect that she would benefit from falling pregnant, the Tribunal said that that was “a matter for [Mr Qin] and [his] sponsor to decide in whatever circumstances they find themselves” (at [34]). While acknowledging that the sponsor had had “some reproductive health issues in the past” and continues to present to her GP every three to six months, the Tribunal considered that Mr Qin had overstated the role he played or needs to play “with regard to his wife’s health” since her parents were regular visitors to the country and her mother had extended her recent stay to look after her (at [34]).

26    The Tribunal had regard to Mr Qin’s visa history. At [24] of its reasons the member stated:

The waiver provisions were introduced to provide flexibility for the Minister where compelling circumstances arise. Whilst was open to the applicant to lodge an application with the Tribunal for review of the Department's decision to refuse the visa, it was not his only option. The applicant, having had his visa application refused on the basis that he did not meet the Schedule 3 3001 criteria as he had not lodged the subclass 820 application within 28 days of his last substantive visa ceasing, could have at that time elected to travel offshore to lodge a subclass 309 application. The Tribunal, on the evidence, concludes that the applicant continued to stay onshore to manipulate his circumstances to enable him to gather more evidence in support of his partner application from the time the Department refused the visa on 15 December 2015.

27    The Tribunal noted that Mr Qin had unsuccessfully applied for a protection visa and exhausted all avenues of review and appeal (at [26]). It also noted that at the time of decision Mr Qin had not provided any information that satisfied the Tribunal he would suffer persecution if he were obliged to return to China to lodge an application for a partner visa. On the available evidence, the Tribunal did not find that claim to be credible (at [26]). In the event that he had to return to China to lodge his application, the Tribunal considered that any financial or emotional hardship that this might cause would be mitigated by the fact that the appellant would be able to avail himself of the support of both his family and that of his wife who resided there (at [27]).

28    The Tribunal did not regard as compelling Mr Qin’s failure to obtain proper legal advice or his lack of engagement with the Department (at [31]).

29    At [38] the Tribunal remarked:

The information has been considered together with the applicant's migration history and it is the Tribunal's view that he has demonstrated a wilful and knowing disregard of Department of Immigration requirements regarding his visa status, particularly referring to the requirement that he depart Australia in 2010 and did not do so and then, in the view of the Tribunal, manipulated his circumstances in an attempt to give rise to favourable compelling circumstances. The only genuine attempt the applicant has made to regularise his visa status since 2010 is lodging the partner visa application while he was unlawfully onshore …

The scope of review in the court below

30    Having regard to the matters raised in the amended notice of appeal and the submissions made in support of it, it is necessary to say something about the nature and scope of the review the primary judge was undertaking.

31    The application in the court below was an application for judicial review. An application for judicial review of an administrative decision is concerned with the legality of the decision. In the present case, it was concerned with whether the administrative decision was within the limits of the decision-maker’s authority. It is not an appeal enabling a rehearing, new hearing or general review of the decision. The primary judge had no power to make a different decision. See Plaintiff M64 at [23] (French CJ, Bell, Keane and Gordon JJ). Nor, indeed, was he asked to.

32    The original jurisdiction of the Federal Circuit Court in relation to migration decisions is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: Migration Act, s 476. In other words, it had the power to grant constitutional writs, one of which is the writ of mandamus. In his application for review, the substantive relief Mr Qin sought was an order that the Tribunal’s decision be quashed and that a writ of mandamus issue, directing the Tribunal to determine his application according to law. Mandamus is only available for jurisdictional error. The burden was on Mr Qin to prove that the decision was affected by an error of that kind. As Kiefel CJ, Gageler, Keane and Gleeson JJ explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, 95 ALJR 441 at [29]:

The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

The reasons of the primary judge

33    In the court below two grounds of review were pleaded but only one was pressed. By an amended application, Mr Qin alleged that: the Tribunal failed to comply with its review obligation under s 348(1) of the Act because it failed to consider relevant evidence, namely

(1)    “medical evidence to the effect that the sponsor had been advised to fall pregnant as soon as possible due to her gynaecological condition” and that, in order to fall pregnant, she and Mr Qin needed to be “in each other’s presence”; and

(2)    evidence of the genuineness of the relationship between Mr Qin and his sponsor.

34    The primary judge held that the Tribunal considered both these matters.

35    With respect to the first matter, the primary judge observed (at [38]) that the Tribunal accepted the medical evidence about the sponsor’s gynaecological issues and the benefit of having the sponsor present but noted that a submission made in writing that the appellant had to be in Australia in order for the sponsor to fall pregnant was not pressed. He held that the Tribunal’s comment that the complications around falling pregnant and the sponsor’s associated medical problems were “a matter for the applicant and her sponsor to decide whatever in circumstances they find themselves” was clearly a reference to the matter being one for the sponsor to consider her options such as exploring fertility options in Australia or travelling to China to pursue fertility treatment in China (at [40]). His Honour did not accept that the Tribunal failed to consider or appreciate the medical evidence that the sponsor had been advised to fall pregnant as soon as possible. He observed that it was not physically necessary for Mr Qin to be in Australia in order for fertility treatment to take place.

36    With respect to the second matter, the primary judge remarked (at [36]) that “what is or is not compelling is a matter for the Tribunal evaluating the material presented”. His Honour noted that the Tribunal accepted the relevant evidence and found that the relationship between Mr Qin and his sponsor was genuine but considered that the genuineness of the relationship was not relevant and did not need to be taken into account as part of the compelling reasons because it neither helped nor hindered Mr Qin. His Honour considered that the Tribunal focussed on the matters that were put forward as compelling reasons rather than on the genuineness of the relationship.

37    His Honour went on to say that, even if he were wrong to hold that the Tribunal did consider the genuineness of the relationship, it would not have made a difference to the overall outcome.

The appeal

38    The original notice of appeal raised three grounds. By an amended notice of appeal, the first three grounds were abandoned. Seven other grounds were raised and leave was sought to rely on an eighth and ninth ground.

39    The alleged errors were that the primary judge:

(1)    applied the wrong test in that he directed himself to “compelling circumstances” instead of “compelling reasons”(ground 4);

(2)    failed to consider that the sponsor’s desire to fall pregnant “in and of itself, or in conjunction with other circumstances, may give rise to compelling reasons to waive the relevant criteria” (ground 5);

(3)    based his determination on matters which were not, but needed to be, the subject of expert evidence in the area of in vitro fertilisation (ground 6);

(4)    failed to find that the genuineness of the marriage was relevant to the question of compelling reasons (ground 7);

(5)    failed to take into account that Mr Qin and his sponsor were “in a long-standing relationship for over four and a half years which gave rise to reasons of a strongly compassionate nature and hence ‘compelling reasons’” (ground 8);

(6)    failed to consider the sponsor’s circumstances of undergoing in vitro fertilisation procedures in the absence of her husband as compelling reasons (ground 9); and

(7)    erred in determining that whether or not Mr Qin was in a genuine relationship “would not have made any difference to the overall outcome” (ground 10).

40    Leave is required to raise the following grounds which were not raised in the court below:

(8)    the Tribunal displayed apprehended bias by concluding that Mr Qin had remained in Australia after his visa was refused in order “to manipulate his circumstances to enable him to gather more evidence for his … application” (proposed ground 11);

(9)    the Tribunal failed to “properly consider” that the delay in applying for a partner visa was attributable to the appellant’s fear of persecution upon returning to China and that “in considering [Mr Qin’s] reasons for wanting to return to China”, it took into account irrelevant considerations (proposed ground 12 (a));

(10)    the Tribunal erred in finding that no member of Mr Qin’s family had “suffered harm at the hands of the Chinese government” (proposed ground 12 (b)).

41    Mr Qin sought leave to adduce further evidence in relation to proposed ground 12 (b).

42    There is no merit in any of the grounds.

43    The first ground (ground 4) is spurious. The primary judge referred to “compelling circumstances” rather than “compelling reasons” twice in his reasons: at [17] while summarising what the Tribunal said at [38] of its reasons (“in the view of the Tribunal, [the applicant] manipulated his circumstances in an attempt to give rise to favourable compelling circumstances”) and at [36] when his Honour observed that Mr Qin needed to show “compelling circumstances for the criteria to be waived”. There is no doubt his Honour was aware of the relevant test. The first reference was a direct quote from the Tribunal’s reasons. In eight other places in his Honour’s reasons he referred to “compelling reasons” (at [5], [8] (twice), [16], [23], [24], [39], and [41]). In any event, he was not applying the test. That was the Tribunal’s task and, despite the reference by the Tribunal to “compelling circumstances”, Mr Qin did not allege that the Tribunal applied the wrong test.

44    In ground 5 Mr Qin pleaded:

That in considering the comment of the [Tribunal] in relation to the sponsor falling pregnant to this effect [para. 40]: “that is a matter for the applicant and sponsor to decide in whatever circumstances they find themselves”, the learned primary judge failed to consider that this circumstance in and of itself, or in conjunction with other circumstances, may give rise to compelling reasons to waive the relevant criteria in the Regulations.

45    This is a misrepresentation of what the primary judge said. The primary judge did not say or suggest that the sponsor’s desires or needs could not amount to a compelling reason for not applying the Sch 3 criteria. Besides, neither the ground as pleaded nor the submissions advanced in support of it point to any jurisdictional error. The focus was on the merits of the Tribunal’s decision. Mr Qin submitted that:

The emotional needs of the sponsor loom large in any humane consideration of her position.

The support of parents is no substitute for conjugal support. The observation [para 40] that it was not physically necessary for the appellant to be present in Australia shows that there was no considered appreciation of the difference to a prospective mother undergoing IVF treatment of her being with, or without, the father. There was no consideration given to the negative issues of travel by the sponsor should she seek IVF treatment.

46    No appealable error is disclosed. The specific attack on para 40 of the primary judge’s reasons is the subject of the next ground.

47    I reject the submission made on Mr Qin’s behalf that the Tribunal did not give the matter due consideration. It is plain from [33] and [34] of the Tribunal’s reasons that it did (see [25] above).

48    Ground 6 attacks the primary judge’s comment at [40] that “it was not physically necessary for the applicant to be present in Australia for the sponsor to undergo fertility treatment, provided that, he made appropriate arrangements prior to leaving to allow IVF, or other fertility treatment to take place in his absence”. This was not a finding of fact but a passing observation. No expert evidence was required to support it as IVF (in-vitro fertilisation), by definition, involves the fertilisation of ova outside the womb in a tube or dish; “vitro” derives from the Latin for “glass”. In any case, having regard to the fact that in the court below Mr Qin did not press the submission that the sponsor could only fall pregnant with his child if he were physically present in Australia, leave would be required to revive the proposition on appeal and leave was not sought.

49    By ground 7 Mr Qin alleged that, although the primary judge noted the Tribunal’s comment about the genuineness of his marital relationship, he did not find that circumstance was relevant to the determination of “compelling reasons” for waiving the Sch 3 criteria.

50    He submitted that:

The court was bound to consider the circumstances of the appellant and then to subject those circumstances to a process of reasoning in assessing the existence or otherwise of compelling reasons. The position of the appellant is not to be seen ‘in a vacuum" but in a context of the circumstances in which he finds himself, and the circumstances of those around him. In this case the appellant was in a genuine relationship. The prospective physical disintegration of that genuine relationship is outstandingly a feature to be considered. To dismiss or diminish its relevance is to gravely disregard the reality of the situation. The prospect of separating a couple who are in a genuine and committed relationship of demonstrated duration provides a compelling reason not to do so.

51    This submission is based on a fundamental misconception about the nature of the Court’s role. Its task was not to assess whether there were compelling reasons to waive the Sch 3 criteria. That task was consigned exclusively to the Minister and, on review, to the Tribunal. As Brennan J put it in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

52    In some circumstances, of course, an administrative decision-maker may fall into jurisdictional error by not taking into account a relevant consideration. But that will only occur if first, the matter that was not considered was a matter the decision-maker was bound to take into account, either expressly or impliedly, and second, if the failure to do so was material to the outcome. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). Where, as here, the legislation confers on a decision-maker a discretion the terms of which are unconfined and is silent as to the factors the decision-maker is to take into account, whether a consideration is relevant in this sense requires an examination of the subject-matter, scope and purpose of the Regulations: Peko-Wallsend at 40 (Mason J). The submissions made on Mr Qin’s behalf did not even embark on such an exercise.

53    It is by no means obvious that the genuineness of the marriage is a matter that must be taken into account in determining whether there are compelling reasons for not applying the Sch 3 criteria. Rather, cl 820.211 rests on the assumption that the marriage is genuine. After all, for the purposes of the Migration Act, spouses are defined as persons in a genuine and continuing relationship with each other: Migration Act, s 5F. As Allsop CJ observed in Choi v Minister for Immigration and Border Protection [2018] FCA 291 at [34], “[f]rom a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Sch 3 criteria”.

54    That is not to say that the Tribunal was bound to ignore the nature of the relationship. It is not an irrelevant consideration in the Peko-Wallsend sense. A decision-maker, acting reasonably, could well take it into account and give it weight. Had the Tribunal considered that the marriage was not genuine, for example, that might well have been a compelling reason to refuse to waive compliance with the Sch 3 criteria. The fact that the Tribunal in the present case did not consider the genuineness of the marriage to be probative does not bespeak jurisdictional error.

55    In ground 8 Mr Qin pleaded that the primary judge acknowledged (at [37]) that the marriage was “over a year” and, in doing so, he failed to take into account that the relationship was “long-standing for over four and a half years which gave rise to reasons of a strongly compassionate nature” and were therefore “compelling reasons”.

56    As the Minister submitted, this alleged error does not follow from what the primary judge said at [37]. In any case, this was just a complaint about the merits.

57    Ground 9 reads:

That in considering the matters specifically submitted to the [Tribunal] [para. 39] as being compelling reasons for waiving relevant criteria in the Regulations, the learned primary judge failed to consider the compelling reasons as they particularly related to the sponsor should she undergo in vitro fertilisation procedures in the absence of her husband, by not considering matters discretely personal to the sponsor, such as lack of conjugal intimacy, sense of isolation, coping with grief after ectopic pregnancy or denial of bonding, associated with being physically removed from her spouse.

58    Mr Qin’s counsel laboured this argument on the hearing of the appeal, emphasising the point about the sponsor’s grief after the ectopic pregnancy and the pain of separation. But it was no part of the primary judge’s role to consider whether there were compelling reasons to waive the Sch 3 criteria. Nor is it the role of this Court on appeal.

59    In ground 10, Mr Qin alleged that the primary judge erred in [41] by holding that whether or not he was in a genuine relationship would not have made a difference to the outcome.

60    Despite the way in which this ground was expressed, Mr Qin made it clear in submissions that this was not a complaint that the primary judge erred by applying the wrong test of materiality. Rather, it was a repetition of the complaint that the Tribunal should have taken into account and given weight to the nature of the marital relationship. The nub of his written submissions is set out below:

It is submitted that the genuineness is highly important in this case. Suppose for the sake of argument a couple formed a relationship of convenience with a view to exploit the system: the contrast would be stark. Here we have a committed and long standing relationship between husband and wife. It is therefore a very proper consideration to take into account the deleterious effects of separating that couple, leading to compelling reasons not to do so. These negative effects include the repercussions for the spouse.

…

Apart from considering the wrong test in this regard ("compelling circumstances"), the genuineness and quality of the relationship are glaringly relevant circumstances which merited taking into account. This in order to comprehend the contextual importance of medical evidence concerning the sponsor and the utility of the support from the appellant.

61    Each of the two grounds must be rejected. For the reasons given above, I am not persuaded that the Tribunal fell into jurisdictional error by the way in which it treated the evidence and submissions on this issue. While it was not bound to disregard it, it was not bound to take it into account either. It was open to the Tribunal to find that, despite credible evidence that the marriage was genuine, there were no compelling reasons to waive the Sch 3 criteria.

Should leave be granted to allow the new grounds to be raised?

62    Leave to raise a point on appeal which was not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ) at [46] and the authorities referred to there. As the Full Court went on to say in VUAX at [48], leave may be granted if a point which was not taken below clearly has merit and it would cause no real prejudice to the respondent. On the other hand, in the absence of an adequate explanation for the failure to take the point below and where the point is of doubtful merit, leave should generally be refused.

63    Here, Mr Qin offered no explanation as to why these points were not taken below when he was represented by experienced counsel and there is no merit in any of them.

64    I will deal first with proposed ground 11, which raises the question of apprehended bias.

65    Apprehended bias is a ground of jurisdictional error, which will vitiate a decision of the Tribunal (see, for example, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). Mr Qin did not point to any prejudice or interest the Tribunal may have had; the assertion he makes is one of predisposition, namely “the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question”: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [20] (Allsop J, with whom Moore J and Tamberlin J agreed at [1] and [2] respectively). The test is whether a fair-minded lay observer, properly informed of the nature of the proceedings, the matters in issue and the conduct said to give rise to the apprehension, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 at [27]-[28] (Gleeson CJ, Gaudron and Gummow JJ).

66    In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 at [18], (North and Lander JJ, with whom I agreed at [35]), said:

It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [44]. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.

67    In the present case, the apprehension is said to arise solely from the Tribunal’s use of the word “manipulate” in [11] and [24] of the Tribunal’s reasons (see also [38]). Mr Qin did not point to any conduct on the part of the Tribunal which might suggest to the hypothetical lay observer that the Tribunal might not have brought an impartial mind to its deliberations.

68    It is evident that the Tribunal used words that came from the PAM3, the Department’s Procedure Advice Manual, which relevantly stated that, in considering whether there are compelling reasons not to apply the Sch 3 criteria:

[O]fficers 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.

(Emphasis added.)

69    Giving effect to policy considerations can hardly be described as apprehended bias.

70    PAM3 is a lawful policy which does not control the exercise of discretion or determine in advance the decision to be made (Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 641 per Brennan J; Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014 at [45], [57]–[58] per Gleeson J). The Tribunal was entitled to apply it as long as it did not do so without hearing from Mr Qin:

[An] applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.

Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, cited with approval in Drake at 641.

71    Proposed ground 12 is untenable. It purports to challenge the decision of the Tribunal, not because it made an error, let alone a jurisdictional error, but on the basis of evidence which was not before it and relates to matters that occurred after its decision. The evidence is contained in an affidavit, affirmed on 18 January 2022, which Mr Qin requires leave to read. It is said to support his claim that he is at risk of harm if he were obliged to return to China to lodge another partner visa application.

72    The deponent is the sponsor’s mother, Junhua Li. The high point of the affidavit is a statement attributed to a Chinese customs officer that “Mr Qin is required to return to China and admit his guilt for his activities”. Putting to one side the quality of the evidence sought to be adduced, the fundamental problem for Mr Qin is that the evidence is irrelevant for the reasons given by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [28]. In CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 to which Mr Qin’s submissions referred, Griffiths J observed (at [45]) that one of the principles guiding the exercise of the Court’s discretion to allow further evidence to be received in an appeal is that “the evidence must be such that very probably the result would have been different” and that “[i]t is necessarily implicit in [this] condition that the evidence would have been relevant to the issues raised … below”.

73    In EGZ17 the administrative decision-maker was the Immigration Assessment Authority. The primary judge had admitted into evidence material concerning events in Afghanistan which occurred more than four years after the Authority’s decision. The Full Court held that the evidence was not relevant to the question of whether the Authority had fallen into jurisdictional error. As the Court explained at [28]:

The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision.

74    For this reason alone leave to adduce the further evidence and to raise the new point must be refused.

Conclusion

75    The appeal is without merit and must be dismissed. It is little more than a misguided plea for merits review of the Tribunal’s decision.

Associate:

Dated:    6 May 2022