Federal Court of Australia

Khakpour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 617

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is upheld.

2.    The orders of the Federal Circuit Court of Australia made on 28 May 2020 are set aside and in lieu of those orders the following orders be made:

(a)    the decision of the Administrative Appeals Tribunal (the “Tribunal”) of 12 August 2019 affirming the decision of the Minister’s delegate is quashed;

(b)    the matter the subject of the Tribunal’s review decision of 12 August 2019 is remitted to the Tribunal to be determined according to law;

(c)    the first respondent pay the costs of and incidental to the application.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from a judgment and orders of the Federal Circuit Court of Australia (now described as the Federal Circuit Court and Family Court of Australia (Division 2)) (the “primary court”) constituted by his Honour Judge Egan (the “primary judge”) dismissing an application for the grant of the constitutional writs under s 476 of the Migration Act 1958 (Cth) (the “Act”) in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) which affirmed a decision of the Minister’s delegate not to grant the appellant a visa described as a “Partner (Temporary) (Class UK) visa” under the Act (the “visa” or “partner visa”).

2    In many respects, the appeal raises relatively short points for determination by Grounds 1 and 2 of the appeal.

3    The relevant background matters are these.

4    The Act provides for various kinds of visas which may be either permanent or temporary (s 30) and it provides for classes of visas as determined by the Act and the Migration Regulations 1994 (Cth) (the “Regulations”) subject to specified conditions: ss 40, 41, 45, 46 and 47 of the Act. Regulation 2.03 of the Regulations provides for criteria applicable to classes of visas and Regulation 2.03A provides for criteria applicable in circumstances where a person claims to be in a de facto relationship for the purposes of an application for a Partner (Temporary) (Class UK) visa. Schedule 1 to the Regulations sets out particular requirements in relation to classes of visas and Item 1214C of Schedule 1 provides that a subclass of the visa in issue in these proceedings is Subclass “820 (Partner)”. Schedule 2 to the Regulations sets out provisions concerning the grant of subclasses of visas and as to Subclass “820 (Partner)”, Schedule 2 sets out definitional terms at 820.111. It sets out the criteria to be satisfied at the “time of the decision” in relation to the application. One criterion to be satisfied, as stipulated, is set out at 820.226 of Schedule 2 which provides that the “applicant satisfies public interest criteria 4020 and 4021”. As to that criterion, the relevant public interest criteria are to be found at Public Interest Criteria 4020 (“PIC 4020”).

5    The relevant elements of PIC 4020 identified by the appellant for the purposes of the grounds of appeal are these:

4020    (1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer [as to which see the definition of the term “officer” in s 5(1) of the Act] … a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

(2)    The Minister is satisfied that during the period:

(a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant … has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

[Subsections (2AA), (2A), (2B), (2BA) and (3) are not relevant for present purposes.]

(4)    The Minister may waive the requirements of any or all of paragraphs 1(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of …, an Australia permanent resident …

justify the granting of the visa.

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

6    As to the term “bogus document”, that term is defined in s 5(1) of the Act in these terms:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

7    The appellant applied for the visa on 13 July 2016.

8    At that date (and thus in the 12 months prior to the application for the visa, for the purposes of 4020(1)(b)), the appellant held a visa described as a “Temporary Work Skilled (Subclass 457) visa”. It is common ground that in relation to that visa, the appellant had lodged with an officer of the Department a document described as a degree certificate for a “Bachelor of Computer Software Engineering” from the Islamic Azad University in Tehran. The degree was said to have been completed on 21 May 2003. The appellant also lodged with an officer of the Department a translation of the degree certificate together with other translations relating to the degree for the academic years 1998, 1999, 2000, 2001, 2002 and 2003. It is common ground that the degree certificate and the translations were false, constituting bogus documents. The appellant, in his material before the Tribunal, asserted that he holds a Masters of Science in Information Technology Management from an institution in Malaysia. It is not suggested that that qualification is false. However, it is common ground that the degree certificate concerning a course of study at the Islamic Azad University in Tehran and the transcripts are false. As a result, the appellant’s Temporary Work Skilled (Subclass 457) visa was cancelled on 22 July 2016.

9    On 17 October 2017, the Minister’s delegate refused the appellant’s application for the partner visa having regard to PIC 4020(1) and (2) and not being satisfied that PIC 4020(4) was engaged.

10    As mentioned, on 13 July 2016, the appellant applied for the visa in question in these proceedings on the basis of his de facto relationship with the sponsor for the application, an Australian citizen who had also relocated from Iran to Australia, Dr Aramesh Tavakoli. At para 4 of the Tribunal’s decision, the Tribunal observes that it has considered a body of material previously provided to the Department, statutory declarations from the appellant and the sponsor, written character and professional references for Dr Tavakoli, material relating to Dr Tavakoli’s academic qualifications and publications and material relating to the voluntary community work of the parties.

11    Thus, having regard to the matters described at [8] of these reasons, the Tribunal was satisfied that the appellant failed to meet the requirements of para (1) of PIC 4020.

12    In addition, the Tribunal was satisfied that the appellant failed to satisfy the requirements of para (2) of PIC 4020 because in the period starting three years before 13 July 2016 and ending when a decision was made to grant or refuse the grant of the visa, the appellant had been refused a visa (the Temporary Work Skilled (Subclass 457) visa) on 22 July 2016 because of a failure to satisfy the requirements of para (1) of PIC 4020.

13    However, para (4) of PIC 4020 provides that the Minister (the Tribunal on review) may waive the requirements of all or any of paras (1)(a) or (b) and para (2) if satisfied that compassionate or compelling circumstances that affect the interests of an Australian permanent resident (Dr Tavakoli) justify the granting of the visa.

14    Accordingly, the appellant accepts that in order to be granted the Subclass 820 (Partner) visa, the appellant needed to obtain a waiver under para (4) of PIC 4020 by satisfying the Tribunal that compassionate or compelling circumstances affecting the interests of Dr Tavakoli justify the granting of the visa.

15    The appellant contends that the Tribunal fell into jurisdictional error for the following reasons.

16    In the circumstances of the case, the appellant contends that the decision of the Tribunal to affirm the refusal of the Subclass 820 (Partner) visa application would mean that the appellant and Dr Tavakoli would be separated for “a long period of time”. In this context, the appellant emphasises the finding of the Tribunal at para 24 in these terms:

24.    … Further – and crucially – it was not [Dr Tavakoli’s] evidence that, should Mr Khakpour’s visa be refused, that she would necessarily leave Australia. Her evidence was that she honestly could not see herself returning to Iran and that there was nothing there for her. Accordingly, I am not satisfied that there are compelling circumstances affecting the interests of Australia that would justify the granting of the visa.

17    Those observations are directed to the first limb of para (4) of PIC 4020 as to whether the Tribunal could be satisfied that compelling circumstances affected the interests of Australia. Nevertheless, the appellant emphasises the above sentence in para 24 of the Tribunal’s reasons as recognising that a refusal of the visa application would bring about a separation of the appellant and Dr Tavakoli and the period of that separation is said to be “for a long period of time”. The appellant also emphasises para 25 of the Tribunal’s reasons when addressing the second limb of para (4) of PIC 4020, in these terms:

25.    On the question of compassionate or compelling circumstances that affect the interests of an Australian citizen (Dr Tavakoli), the applicant’s submission is that the prospect of separation from him, or of being required to choose between the relationship and her career has caused Dr Tavakoli considerable psychological pain. Her evidence, and that of Mr Khakpour, is that this has manifested in sleeping problems and frequent crying. A medical certificate was tendered from Dr Christine Oo of QUT Medical Centre, dated 10 July 2018, which reports that Dr Tavakoli “has been experiencing significant anxiety symptoms with sleep disturbance. This is precipitated by [her] partner[’s] current application for partner visa … Her symptoms are severe enough to require management with medications and she is to get supportive counselling to assist her”. Dr Tavakoli told the Tribunal that she had been prescribed [A]mitriptyline, but provided no documentary evidence for this. She has not attended any counselling and there was no report from a psychologist. Given that the only evidence of Dr Tavakoli’s psychological condition was the self-reported symptoms to the GP and the claims of the parties, and nothing in the nature of clinical evidence, there is only limited weight I can give to this claim.

18    By way of context, it should be noted that at para 23, the Tribunal observed that at the hearing both Mr Khakpour and Dr Tavakoli gave evidence that Dr Tavakoli’s academic career had stalled owing to a lack of opportunities to pursue research in her chosen field. The Tribunal noted that Dr Tavakoli is working on a prototype device that she hopes to trial at the Royal Brisbane Hospital and her aspiration is to manage her own research group to commercialise the device. The Tribunal also noted that Dr Tavakoli’s academic credentials are impressive although the Tribunal observed that it is clear from the evidence that the opportunities to apply those skills in Australia are “very much constrained by the narrowness of the market in her field and the competition with other postgraduates for research funding”. The Tribunal notes that in the meantime, Dr Tavakoli is supporting herself by undertaking particular work and activities.

19    In any event, there is no suggestion that any aspect of Dr Tavakoli’s evidence is under challenge.

20    As to the nature of the relationship between Dr Tavakoli and the appellant, Dr Tavakoli said this in her statutory declaration dated 24 August 2017:

As I have previously stated in my statutory declaration, we met in April 2015 at a friend’s birthday party. There was an attraction on both sides … He asked me out after a while and in no time our close friendship developed into a relationship through which I see myself inseparable from him. … Shortly after, we decided to move in together so I invited my Mom to come to Australia in November 2015 to meet the guy I am planning to make my future with. She loved him, his character, and mostly the way I was being treated. He moved into my apartment so by the end of my lease we can move into a new place and start a new life together. We have been socially recognised as a couple, attending family, work or university occasions together evidence of which has been previously provided … Upon receiving the notice [of] cancellation of … his 457 visa, I submitted an application for sponsoring him for a partner visa as I was no one without him and I could not see myself living life without him. We moved to our new home in April 2017 when our previous lease agreement was over. We started a whole new home together, shopped for new furniture and built our home with love and passion for our future. I would just like to state that we are very much in love with one another.

…

Being tied to so many strings here in Australia, I can’t picture myself even for a minute to live in Iran if our partner visa application gets cancelled but I can’t also see myself alive being apart from the love of my life. The anxiety caused by the fear of our relationship been torn apart and the ongoing struggle to find a plan b to keep us together as a family has left me with having trouble sleeping at nights and being emotionally and physically sick and exhausted during the day for the past few weeks.

21    The appellant also emphasises the evidence he gave to the Tribunal at the hearing on 18 September 2018 in these terms:

… I know what I have done was wrong. I’ve mentioned that and I regret [it]. There is nothing I regret the most. If I could go back and I can change it, I would. Ever since I met Aramesh [we’ve] been really happy. I know that is probably if I mention that I love her so much that will not be that important but it does to [us]. We say we love each other, we love to, start life together. … I know what I’ve done was wrong, I’ve mentioned that before, and, but I’m trying to start new life. I’m trying to make things right …

22    The contention of the appellant is that the Tribunal at the date of its decision on 12 August 2019 failed to appreciate that the effect of para (2) of PIC 4020 would prohibit the appellant from applying for the “offshore” version of a partner visa (that is, a subclass 309 Partner (Provisional) visa) prior to 18 October 2020 if the Tribunal affirmed the visa refusal. That is said to follow as the Minister’s decision (by the delegate) to refuse the partner visa application is dated 17 October 2017 and any further application for an offshore provisional partner visa could only be made on or after 18 October 2020 due to the three year period in question (see PIC 4020(2)). The appellant says that it is no doubt uncontested that the appellant would have to leave Australia within a short time of the Tribunal decision (subject to relevant proceedings) and the appellant contends that this circumstance was foreshadowed by the Tribunal having regard to an exchange at the hearing in these terms at lns 283 to 286 of the Transcript:

Tribunal Member:    Can I suggest to you, and I’m not in any position to you know, say this in an authoritative way, I’m here kind of consider one issue, but you know if he were to need to return to Iran and then subsequently make a valid visa application to return to Australia, would you be able to manage a temporary separation?

Dr AT:    To be honest, I don’t see myself. I don’t see myself in the situation that I can fight this anymore. I’m 36 and if we want to have a kid it’s already late and it’s just …

Tribunal Member:    Yes.

Dr AT:    And physically and emotionally I’m just, I think I’m done with it all with the stress that I’ve been taking in the past year.

23    The appellant contends that the evidence before the Tribunal was that processing times for a visa are about nine to 12 months with the result that as at the date of the Tribunal’s decision on 12 August 2019, Dr Tavakoli would be separated from the appellant for a period at least until August to October 2021 and probably longer. This assumes an application of 18 October 2020 and approximately 12 months to decide the application. The appellant says that this is a period of separation of more than two years. The appellant contends that in order to determine if there were compassionate or compelling circumstances affecting the interests of an Australian citizen before the Tribunal for the purposes of para (4) of PIC 4020, it would be necessary for the Tribunal to identify the content of the statutory conception of the terms “compassionate” and “compelling” as characterising the relevant circumstances. As to the meaning of the term “compassionate”, the appellant emphasises the following definition from the Macquarie Dictionary of the term “compassion”:

Noun 1. A feeling of sorrow or pity for the sufferings or misfortunate of another; sympathy.

Verb (t) 2. To have compassion for …

24    The appellant contends that the bar in determining what are “compassionate circumstances” is not high and it would not be possible to determine whether the Tribunal had “sympathy” for Dr Tavakoli’s circumstances without knowing the period during which she would be separated from her partner in deciding whether the Tribunal could be satisfied that compassionate or compelling circumstances affecting the interests of Dr Tavakoli justify the granting of the visa.

25    The appellant emphasises that the fact of separation of Dr Tavakoli from her partner was a question in issue before the Tribunal. The appellant emphasises that through a lack of knowledge of the extent of the forced separation that would be brought about by a refusal of the application, the Tribunal dismissed the nature of the separation Dr Tavakoli would have to endure in the circumstances by diminishing the character of the separation in these terms at para 26 of the Tribunal’s decision:

26.    Aside from the emotional or psychological impact on Dr Tavakoli were Mr Khakpour to leave Australia, there was no other evidence tendered as to compassionate or compelling circumstances affecting her or others. For example, there are no children of the relationship whose interests might be affected. There was no claim that Dr Tavakoli is financially dependent on Mr Khakpour, or any claim that joint assets or liabilities might be adversely affected. …

[emphasis added]

26    Having emphasised the character of what is comprehended by the terms “compassionate” and “compelling” and the observations of the Tribunal in the first sentence of para 26, the appellant asserts that setting aside the emotional or psychological impact on Dr Tavakoli of a period of separation is a failure to properly construe and apply para (4) of PIC 4020 in a jurisdictional sense thus giving rise to jurisdictional error. The character of the error is said to be analogically comparable with the requirements the Tribunal was required to keep in mind reflected in the observations of Allsop CJ in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480, in these terms at [60]:

60    Here, the Tribunal acknowledged that the best interests of the child was a primary consideration. In doing so, it was required to give proper, genuine and realistic consideration to the best interests of the child. The one-dimensional approach taken by the Tribunal in its reasons did not satisfy this requirement.

[emphasis added]

27    It is entirely uncontroversial to observe that the Tribunal is required to give proper, genuine and realistic consideration to the question before it of whether it could be satisfied that compassionate or compelling circumstances affecting the interests of Dr Tavakoli justify the granting of the visa. The obligation of the appellant is to identify the basis upon which the Tribunal failed to do so. The appellant seeks to frame the essence of the jurisdictional error in these terms:

[T]he Tribunal acknowledged that the compassionate or compelling circumstances that affect the interests of [Dr Tavakoli] had to be considered. In doing so, it was required to give proper, genuine, and realistic consideration to the compassionate or compelling circumstances that affect [her] interests. The one-dimensional approach taken by the Tribunal in its reasons did not satisfy this requirement.

[emphasis added]

28    The contended one-dimensional approach is that the Tribunal could not properly, genuinely and realistically interpret and apply para (4) of PIC 4020 without determining how long the period of separation between Dr Tavakoli and the appellant would be. Failing to appreciate the period of separation is said to be an example of failing to bring to mind “salient facts which give shape and substance” to the task of determining whether the Tribunal could be satisfied that compassionate or compelling circumstances that affect the interests of Dr Tavakoli justify a waiver. In the result, the appellant contends that the matter ought to be remitted to the Tribunal for reconsideration so as to take into account and determine, as a fact, the length of separation that Dr Tavakoli would need to endure and how that period of separation might reflect compassionate or compelling circumstances affecting her interests as an Australian permanent resident. The appellant contends that the primary judge made the same error as the Tribunal and, moreover, the primary judge is said to have fallen into error because the presumptive period of exclusion in PIC 4020(2) is three years not two years and this misunderstanding on the part of the primary judge at [31] may well have been crucial to the primary judge’s reasoning.

29    As to these matters, the Minister contends that the ground was raised and dismissed before the primary judge. The Minister emphasises that the primary judge found that there was “insufficient evidence” before the Tribunal to justify a finding that Dr Tavakoli would suffer serious medical or psychological symptoms as a result of any “temporary separation” from the appellant whilst he was offshore making another visa application. The Minister emphasises the primary judge’s finding at [30] that in “such circumstances”, the length of time required for an offshore visa application was not a matter “critical” to the Tribunal’s considerations. The Minister also emphasises that the fact that a three year exclusion period applied under PIC 4020(2) in the event of the provision of misleading or fraudulent information was not a matter which ought to be inferred was not considered by the Tribunal as part of its deliberations. The Minister contends that there is no error in the primary judge’s approach. The Minister observes that the Tribunal placed only “limited weight” on the claim that the sponsor would suffer considerable psychological pain due to a separation “given that the only evidence was the sponsor’s self-reported symptoms to the GP and nothing in the nature of clinical evidence” was put before the Tribunal. The Minister contends that in circumstances where the Tribunal was not persuaded that there would be a significant impact on the sponsor if the appellant was to return to Iran, it was not incumbent upon the Tribunal to consider the likely length of any such separation. The Minister also observes that, notwithstanding any of these other factors, the Tribunal was not satisfied that even if the emotional distress caused to Dr Tavakoli amounted to compassionate or compelling circumstances, the requirement of PIC 4020 should be waived, having regard to “the nature of the appellant’s conduct and the limited evidence of the affect on the sponsor’s interests”.

30    The difficulty with the Tribunal’s decision is this. There is no suggestion that Dr Tavakoli’s credit or truthfulness was called into question. There was no suggestion that Dr Tavakoli was doing anything other than giving her evidence honestly. Thus, the evidence in the declaration quoted at [20] of these reasons was not challenged as unreliable. Nor was the evidence quoted at [25] of these reasons challenged as unreliable. The Tribunal at para 25 of its reasons addressed the question of its state of satisfaction concerning compassionate or compelling circumstances affecting the interests of Dr Tavakoli. The Tribunal notes the submission that the prospect of separation between the appellant and Dr Tavakoli or of Dr Tavakoli being required to choose between her relationship with the appellant and her career has caused Dr Tavakoli “considerable psychological pain”. The Tribunal notes some aspects of the nature of that particular difficulty. It also notes that a medical certificate was tendered dated 10 July 2018 reporting that Dr Tavakoli had been experienced “significant anxiety symptoms with sleep disturbance” precipitated by the appellant’s current visa application difficulties. It also notes that the medical certificate describes Dr Tavakoli’s symptoms as “severe enough” to require management with medications and she is to get supportive counselling to assist her. In assessing how that evidence might bear on the question of whether there were compassionate or compelling circumstances affecting Dr Tavakoli, the Tribunal observed that Dr Tavakoli had not attended counselling and that there is no report from a psychologist. It observed that the “only evidence” of Dr Tavakoli’s psychological condition (attested to by the certificate) was the “self-reported symptoms” to the GP and the “claims of the parties”. It also observed that there was “nothing” in the nature of “clinical evidence” and for these reasons the Tribunal observed that “only limited weight” could be given to the claim that Dr Tavakoli was experiencing “considerable psychological pain”. However, there was the direct evidence of Dr Tavakoli (not challenged as unreliable) and there was a certificate from a General Practitioner speaking to the matters just described. The medical certificate affirmed the position communicated to Dr Oo by Dr Tavakoli. There was every reason to believe that what was being said by Dr Tavakoli supported by Dr Oo was reliable. There was no obligation upon Dr Tavakoli to provide what amounted to corroboration of the fact and there was no basis upon which the Tribunal could give “only limited weight” to the claim made by Dr Tavakoli because there was no report from a psychologist and no suggestion that Dr Tavakoli had attended counselling. In the oral evidence, Dr Tavakoli said that “physically and emotionally I’m just, I think I’m done with it all with the stress that I’ve been taking in the past year”.

31    Moreover, at para 26, the Tribunal observed that “aside from” the emotional and psychological impact on Dr Tavakoli should Mr Khakpour leave Australia, there was no other evidence tendered as to compassionate or compelling circumstances affecting her or others such as the consequences for dependent children of the relationship (of which there were none) or financial dependency by Dr Tavakoli on the appellant. However, the claim by Dr Tavakoli was put on the basis of the emotional and psychological impact on her of a separation and the focus of the Tribunal’s enquiry was to determine whether there was a proper, genuine and realistic basis for that claim.

32    In circumstances where no aspect of Dr Tavakoli’s evidence was called into question in terms of truthfulness or reliability, there was no objective rational basis for putting her evidence to one side or the evidence of Dr Oo to one side which was entirely consistent with the oral evidence of Dr Tavakoli and there was no basis for treating Dr Tavakoli’s evidence as only attracting “limited weight”.

33    Accordingly, the Tribunal did not act consistently with the rules of reason in assessing the evidence of Dr Tavakoli and choosing to give it “only limited weight”. The question of the weight to be attributed to evidence is ultimately a matter for the Tribunal so long as it applies the rules of reason in determining whether or not weight can be attributed, or not attributed, to a particular factor or evidence of particular matters. There is little to identify in the Tribunal’s reasons for simply putting to one side entirely the claim of Dr Tavakoli about the affect upon her of separation or the views expressed by Dr Oo.

34    There is, however, one remaining matter which concerns the Tribunal’s observation at para 29. The Tribunal says this at para 29:

29.    Further, even if I had found that the emotional distress to Dr Tavakoli occasioned by the refusal of Mr Khakpour’s visa amounts to compassionate or compelling circumstances affecting her interests, I cannot be satisfied that the requirements of PIC 4020 should be waived having regard to the nature of Mr Khakpour’s conduct and the limited evidence of the effect on Dr Tavakoli’s interests.

35    PIC 4020 confers a discretion on the Minister (and the Tribunal on review) to waive the requirements of either or both of PIC 4020(1) and (2) if a state of satisfaction can be reached that there are compassionate or compelling circumstances that affect the interests of, in this case, Dr Tavakoli, so as to justify the granting of the visa to the appellant. The character of the conduct of the appellant to be waived is a relevant consideration in the exercise of the discretion as it goes to the question of whether the compassionate or compelling circumstances affecting Dr Tavakoli “justify” the granting of the visa to the appellant by waiving the relevant non-compliance with PIC 4020(1) in this case. At paras 29 and 30 of the Tribunal’s reasons it observes that the “nature of Mr Khakpour’s conduct” taken in conjunction with the “limited evidence of the affect on Dr Tavakoli’s interests” leads the Tribunal to the position where it cannot be satisfied that PIC 4020(1) should be waived.

36    The conclusion that “the nature of Mr Khakpour’s conduct”, weighed in the balance with the “limited evidence” of the affect of separation on Dr Tavakoli’s interests, results in the Tribunal not being able to reach the necessary state of satisfaction required by PIC 4020(4) is, in turn, affected by the earlier conclusion that the evidence of Dr Tavakoli (and Dr Oo) can be given “only limited weight”. The conclusion at paras 29 and 30 is not that the conduct of the appellant is so overwhelming that evidence of compassionate or compelling circumstances are insufficient to enable the Tribunal to reach the necessary state of satisfaction but rather that the conduct of the appellant and the “limited evidence” of the affect on Dr Tavakoli’s interests suggests to the Tribunal that it cannot reach the required state of satisfaction. However, the notion that only limited weight could be attributed to the evidence of Dr Tavakoli and Dr Oo in circumstances where there was no challenge to the truthfulness or reliability of the evidence of Dr Tavakoli offends the rules of reason and ought not to have been further weighed influentially in reaching the conclusions at paras 29 and 30. The short point is that there was direct evidence as to the claims of Dr Tavakoli supported by the certificate given by Dr Oo, giving rise to compassionate or compelling circumstances which needed to be properly weighed and either accepted or rejected for rational reasons or, put another way, consistent with the rules of reason in fact-finding. I also accept that the Tribunal needed to form a view about the likely period of separation as a question of fact in issue before it could be satisfied that non-compliance with PIC 4020(1) was not to be waived.

37    That being so, it is not necessary to consider Ground 2 of the appeal.

38    The decision of the Tribunal is to be set aside and remitted for further consideration.

Associate:

Dated:    26 May 2022