Federal Court of Australia

MZZXN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1386

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant be granted leave to rely on the amended proposed ground of appeal contained in his written submissions filed on 16 May 2022.

2.    The application for an extension of time to seek leave to appeal and for leave to appeal be dismissed, with costs.

3.    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

MIDDLETON J:

Introduction

1    The Applicant seeks an extension of time and leave to appeal the judgment and orders of the Federal Circuit Court of Australia (as it was then known) delivered on 30 June 2021. The Federal Circuit Court dismissed the Applicant’s application under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (‘FCC Rules’) to set aside the orders of a Registrar of that Court dated 8 August 2018. The orders of the Registrar dismissed the Applicant’s judicial review application before the Federal Circuit Court because the Applicant failed to attend a court hearing to prosecute his application.

2    The Applicant’s application to this Court was filed on 2 August 2021 and was accompanied by a draft notice of appeal in respect of the Federal Circuit Court’s judgment not to set aside the Registrar’s orders. At the hearing of this application, the Applicant relied on a proposed amended ground of appeal as contained in his written submissions filed on 16 May 2022. While those submissions referred to an Amended Draft Notice of Appeal, no such amended notice was filed in this proceeding or received by the Court. According to the First Respondent, there were some differences between the Applicant’s Amended Draft Notice of Appeal and the proposed amended ground of appeal in his submissions. To the extent there are any differences and for the purposes of these reasons, I rely on the Applicant’s proposed amended ground of appeal as set out in his submissions.

3    The proposed amended ground of appeal is as follows:

(1)    In dismissing the Applicant’s application to reinstate his judicial review application, the learned Federal Circuit Court Judge erred in failing to find that the Tribunal did not carry out its statutory task as required by clause 820.211(2)(d) of part 820 of Schedule 2 to the Migration Regulations 1994 due to the Tribunal’s material errors of law.

Particulars

(a)    The Tribunal failed to take into account that the Applicant and his former sponsor had registered their defacto relationship under the Relationships Act 2008 (Vic) in accordance with regulation 2.03A(5) of the Migration Regulations 1994 and proceeded on the incorrect assumption that the Applicant was required to demonstrate that he had been in a long standing relationship of one or two years with his sponsor in order for him to be able to raise the family violence provisions in clause 820.221(3)(a) and (b)(i)(A) as a compelling reason for the purposes of clause 820.211(2)(d).

(b)    The Tribunal wrongly assumed that as the Applicant’s protection visa application had been refused by another Tribunal, it was not required to make its own independent assessment of whether the evidence provided by the Applicant concerning his fear of returning to Pakistan could constitute a compelling reason for the purpose of him pursuing his partner visa application in Australia.

4    Though expressed as a sole ground of appeal, the Applicant’s proposed amended ground of appeal consists of two discrete particulars which in substance may be treated as separate grounds of appeal. This is the approach I have taken in these reasons.

5    Although the application before this Court is an application for an extension of time and for leave to appeal, having regard to the grounds and facts of those applications and after considering the other factors relevant to the exercise of discretion in determining those applications, I have decided that the issues of extension of time and leave to appeal are ultimately contingent on the merits of the Applicant’s underlying application for judicial review.

6    Furthermore, during the oral hearing, Counsel for the Applicant was content for the merits of the judicial review application to be substantively considered and determined by this Court in these reasons, not just for the purposes of determining the applications for extension of time and leave to appeal, but so as to determine the appeal itself.

7    For the reasons that follow, I have concluded that the proposed amended grounds of appeal raised by the Applicant have no merit and are not reasonably arguable, and on that basis, the Applicant’s application to this Court is to be dismissed.

Background and procedural history

8    The background material and history of this matter are not in contention and are primarily taken from the reasons of the primary judge. Because of the nature of the interlocutory applications to be determined in these reasons, it is necessary to set out the procedural history of the Applicant’s visa applications in detail.

9    The Applicant is a 29 year old man of Pakistani nationality. On 20 November 2012, the Applicant arrived in Australia on a student visa, which was valid until 17 March 2014.

Protection visa application

10    On 5 March 2013, the Applicant applied for a protection visa. This visa application was refused on 23 August 2013 by a delegate of the First Respondent. The decision of the delegate was affirmed by the Migration Review Tribunal (as it was then known) on 4 December 2013.

11    On 16 December 2013 an application for judicial review was filed in the Federal Circuit Court by the Applicant. That application was dismissed on 29 January 2015: see MZZXN v Minister Immigration & Anor [2015] FCCA 73.

12    On 20 May 2015, the Applicant’s appeal from that decision to this Court was also dismissed: see MZZXN v Minister for Immigration and Border Protection [2015] FCA 503.

13    Finally, the Applicant lodged an application for ministerial intervention in relation to his protection application in June 2015, which was assessed but not granted. The Applicant was notified of this outcome on 10 May 2016. Since this time, the Applicant has held several bridging visas.

Partner visa application

14    On 9 November 2016, the Applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. At the time of these applications, the Applicant did not hold a substantive visa, as his student visa had expired and his protection visa application had been unsuccessful.

15    The Applicant’s application was sponsored by his partner at that time, an Australian permanent resident whom I shall refer to as Ms JV. The Applicant’s evidence was that the Applicant and Ms JV met in May 2015 and that in September that year they decided to marry. Although they were not married at the time of the visa application, it was submitted that they were de facto partners within the meaning of s 5CB of the Migration Act 1958 (Cth) (‘Act’).

16    On 3 February 2017, the Applicant’s partner visa applications were refused by a delegate of the First Respondent on the grounds the Applicant failed to meet cl 820.211(2)(d) of the Migration Regulations 1994 (Cth) (‘Regulations’), which imposed on the Applicant a time limit for the making of his partner visa application unless there were compelling reasons it should not be applied.

17    On 23 February 2017, the Applicant applied for a review of that decision before the Administrative Appeals Tribunal (the ‘Tribunal’). It is relevant to note that, shortly before the Applicant’s hearing before the Tribunal, the Applicant’s relationship with Ms JV ended and she withdrew her sponsorship of his application. As a result, the nature of the Applicant’s claims made in the Tribunal as to his partner visa application changed, which will be detailed later in these reasons.

18    The Applicant was represented by a migration agent at a final hearing held on 7 July 2017. On 1 November 2017, the Tribunal affirmed the delegate’s decision not to grant the Applicant a partner visa.

19    On 28 November 2017, the Applicant commenced an application for judicial review in the Federal Circuit Court. On 8 August 2018, these judicial review proceedings were dismissed by a Registrar of that Court when the Applicant failed to attend the first hearing in these proceedings to prosecute his application.

20    On 16 August 2018, the Applicant applied to the Federal Circuit Court to have the Registrar’s orders set aside. On 30 June 2021, the Federal Circuit Court dismissed that application: MZZXN v Minister for Immigration and Border Protection [2021] FCCA 1485.

21    On 3 August 2021, the Applicant appealed to this court from that interlocutory judgment. It is to be noted that s 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that the Applicant seek leave to appeal to this Court from an interlocutory judgment and r 35.13 of the Federal Court Rules 2011 (Cth) (‘Rules’) requires that such an application for leave to appeal be filed within 14 days of the primary judgment. Since the Applicant’s application was filed outside that 14 day limit, the application to be determined by these reasons is an application for an extension of time to seek leave to appeal from the Federal Circuit Court’s judgment.

The relevant statutory provisions

22    The statutory provision in issue as to the Applicant’s partner visa application is cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations.

23    The relevant criterion the Applicant was required to satisfy at the time of his application under cl 820.211 is as follows:

(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, an Australian permanent resident or an eligible New Zealand citizen;

…

(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

…

(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.

24    Schedule 3 is titled “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders”. The criteria contained in this schedule apply to certain onshore applicants, and clause 820.211(2)(d)(ii) is effectively a waiver provision recognising the hardship that can result if an onshore applicant wishing to remain in Australia on a partner visa does not meet the criteria and is obliged to leave Australia to apply from overseas: see Migration Regulations (Amendment) 1996 No. 75 (Cth) Explanatory Statement at p10. The Tribunal’s reasons, and the submissions in this Court, focussed only on the compelling reasons for not applying Schedule 3 criterion 3001, which relevantly provides:

(1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

...

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994…

whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully…

25    The relevant issue before the Tribunal was whether there were compelling reasons not to apply the 28 day time limit criterion imposed by criterion 3001.

26    As the Applicant did not make his visa application within 28 days of the last day he held a substantive visa (his application was made over two years after that date), criterion 3001 was not satisfied. Therefore the Applicant could only meet the requirements of cl 820.211(d)(ii) if the Tribunal was satisfied there were compelling reasons for not applying that criterion.

27    Central to the Applicant’s appeal is the expression “compelling reasons”. Though not defined, the authorities establish that “compelling reasons” “should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria, and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”: see Singh v Minister for Home Affairs (2020) 274 FCR 506; [2020] FCAFC 7 at [27] per Derrington J citing MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478 at [10] and Babicci v Minister for Immigration and Multicultural Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24].

28    Further, the circumstances that might constitute compelling reasons are not limited to those that existed at the time when the visa application was made: Waensila v Minister of Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32 at [2] per Dowsett J), [18] per Robertson J and [52]-[60] per Griffiths J.

29    Before setting out the Tribunal’s reasons, there are two factual and statutory matters it is necessary for me to detail further as context.

30    First, as mentioned above, the Applicant’s case before the delegate and (initially) the Tribunal was on the basis that Ms JV, who was the sponsor for his partner visa application, had met him in May 2015, that they were de facto partners, that in September 2015 they had decided to marry, and that they planned to marry in July 2017. However, the Applicant and Ms JV never lived together. The Applicant’s evidence to the Tribunal was that this was because of his Muslim faith and Ms JV’s having three children from a previous relationship who lived with her.

31    Although the Tribunal’s reasons for its decision expressed doubts as to the genuineness and duration of the Applicant’s relationship with Ms JV, its decision was not determined on this basis. Rather, its decision was made on the basis of the time limit applying to his visa application as a result of cl 820.221(2)(d)(ii) of the Regulations and there not being “compelling reasons” not to apply the relevant time limit. However, the Tribunal noted that whether the de facto relationship was a longstanding relationship of two years or more was required to be considered for the purposes of determining whether there were “compelling reasons” to waive the relevant time limit. The Tribunal’s consideration in this regard is one of the subjects of the Applicant’s proposed grounds of appeal.

32    In particular, the Applicant refers to reg 2.03A of the Regulations, which at the time of the Applicant’s visa application relevantly provided as follows:

2.03A    Criteria applicable to de facto partners

(3)     Subject to subregulations (4) and (5), if:

(a)     a person mentioned in subregulation (1) applies for:

…     

(v)     a Partner (Temporary) (Class UK) visa; … and

(b)     the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

…

(5)     Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

33    Second, it is to be recalled that by the time of the Applicant’s hearing before the Tribunal, he was no longer in a relationship with Ms JV and Ms JV withdrew her sponsorship of his partner visa application. The immediate legal consequence for the Applicant at that time was that he would no longer satisfy the necessary criterion of having a spouse or de facto partner as the sponsor of his application. Unless, for example, he satisfied the criterion under cl 820.221(3), which the Applicant’s proposed amended grounds referred to as the “family violence provisions”. Clause 820.221(3) provides for the circumstance where a partner visa applicant has suffered family violence committed by their former sponsoring partner. Where cl 820.221(3) is satisfied, the sponsor criteria under cl 820.211(2) is no longer applicable. Division 1.5 of the Regulations, entitled “Special provisions relating to family violence” provides for the definitions and procedures relevant to family violence claims made by a visa applicant.

34    The Applicant’s claims made to the Tribunal at his hearing and in further submissions regarding family violence he suffered at the hands of his sponsor are to be understood in the context of the family violence provisions referred to above. In addition, the family violence claims were relied upon by the Applicant to support his submission that there were “compelling reasons” to waive the relevant criterion pursuant to cl 820.211(2)(d)(ii). However, it is to be noted that whether the Applicant satisfies the family violence provisions under cl 820.221(3) or whether the Tribunal ought to have found that the Applicant’s claim of family violence was a “compelling reason” to waive the relevant criteria under cl 820.211(2)(d)(ii) are not proposed grounds of appeal. Rather, the family violence provisions are only relevant in these proceedings to the extent that it is alleged that the Tribunal erred in considering that a longstanding relationship was a prerequisite to raise the family violence provisions as a “compelling reason”, as per proposed amended ground 1(a). It is not necessary to set out any of the family violence provisions in the Regulations in these reasons.

The Tribunal’s Decision

35    Now, turning to the Tribunal’s reasons, as the Tribunal found that the Applicant did not meet criterion 3001 of Schedule 3, it went on to consider whether there were compelling reasons for not applying the criterion.

36    First, the Tribunal expressed doubt with respect to the family violence claims of the Applicant:

[12]    The Tribunal has concerns about the applicant’s credibility in terms of the vague and confusing claims about having suffered family violence at the hands of his sponsor, just as the applicant was attending an initial hearing with the Tribunal when the sponsor told the applicant she no longer wanted to stay with him and would not be attending the Tribunal hearing.

37    Then, the Tribunal indicated that it was not satisfied that the Applicant and his sponsor had been in a longstanding relationship, which it considered relevant to the “compelling reasons” assessment:

[14]    At hearing it was advanced that the parties had met in May 2015 and in September 2015 made a decision to marry. The parties never married, although evidence has been submitted to demonstrate that they were intending to marry on 11 July 2017. The parties during their relationship never lived together either because, it is claimed, of the applicant’s Muslim faith and because the sponsor has three girls from previous relationship(s), aged 19, 14 and 12 living with her, which in itself undermines his claims that the sponsor’s daughters were reliant on him and that he played a significant role in their lives.

[15]    Given the parties have never lived together it is also difficult to ascertain whether the relationship was a long-standing one of two years duration or more. While living together is not necessarily an indicator that parties have commenced a committed relationship, given the Tribunal’s other concerns in this case, the Tribunal is not satisfied that the parties up until the break-up had been in a longstanding relationship of two or more years duration which policy requires a decision maker to have regard to in assessing whether there are compelling reasons for waiving the Schedule 3 criteria.

38    The Tribunal did accept the Applicant’s submissions as to Ms JV’s mental health issues (and later went on to accept that the Applicant may have played an important support role for Ms JV in this regard):

[16]    The applicant has submitted a letter from a doctor, dated 15 November 2016, stating that the applicant’s sponsor suffered from mental health issues involving anxiety/depression and was under the care of a psychologist and had been taking medication. The doctor has written that the sponsor was going to church regularly and that this assisted her and that she had a supportive partner in the applicant who was trying to assist her manage her symptoms of anxiety/depression with spiritual help. Evidence was also submitted of the sponsor having sustained serious and continuing family violence from her previous partners which has resulted in her mental health conditions and that she was under a mental health care plan. The Tribunal accepts that the applicant’s former sponsor suffers from mental health issues as a result of being the victim of serious family violence.

39    The Applicant’s submission to the Tribunal was that he would have returned to Pakistan to make his partner visa application, but that Ms JV required him to stay in Australia to support her. The Tribunal noted the contradiction between this submission and his previous protection visa application, which had been on the basis of his fear of returning to Pakistan:

[17]    The applicant at hearing stated that he had wanted to return to Pakistan but that the sponsor would not let him as she could not live without him. The Tribunal noted, therefore, that his previous claims to fear persecution/serious harm on return to Pakistan given he was prepared to return there, does leave the Tribunal to question whether his initial protection claims were not spurious.

40    Whilst the Tribunal appeared to accept the Applicant’s submission as to the important support role that he played in the life of Ms JV, the Tribunal doubted the Applicant’s “sudden claims of family violence”, again perceiving a contradiction in the Applicant’s current position as against his past submissions:

[18]    The Tribunal accepts that the applicant may have played an important support role in the life of the sponsor, whether as a spouse or in some other capacity. The Tribunal places some weight on this matter. Nonetheless, the applicant’s sudden claims of family violence just as the applicant’s avenues for remaining in Australia, and when the sponsor was no longer prepared to support him at the review hearing, are questionable. This is particularly so as the evidence up until the review hearing pointed to the sponsor as being very dependent on, and supportive of the applicant.

[19]     This contradiction in the applicant’s testimony about having suffered family violence is also highlighted because a statement was provided to the Tribunal just prior to the applicant attending by the sponsor in which she was fully supportive of the applicant on the basis that he was emotionally supportive of her and that if he had to go offshore, she would have difficulty looking after her children.

41    The Tribunal noted that, putting family violence aside, the dependence that Ms JV may have once had on the support offered by the Applicant could no longer constitute a compelling reason for waiving the relevant criteria:

[20]    The matter of family violence aside, the Tribunal is required to assess whether there are compelling reasons now and not just at the time of application as per Waensila v MIBP. Whatever the circumstances of the parties’ break up, whether due to family violence or some other issue, the fact of the matter is that the applicant and the sponsor are no longer in a relationship. While previously the sponsor may have been dependent and supported by the sponsor, at the time of writing this decision the parties are no longer in a relationship and therefore the Tribunal does not now find that the applicant’s support of the sponsor and her children constitutes compelling reasons for waiving the Schedule 3 criteria.

42    Next, the Tribunal considered the breakdown of the Applicant’s relationship with Ms JV and concluded that this was also not a compelling reason for waiving the relevant criteria:

[21]    The Tribunal appreciates that the breakdown of a relationship is distressing in any circumstance, however, the Tribunal is not satisfied that such a break down in itself constitutes compelling reasons for waiving the Schedule 3 criteria. Unfortunately such break ups are a feature of many relationships and not particular to the applicant…

[22]    The Tribunal considers that if a sponsor wishes to withdraw their sponsorship it is not compelling reason for waiving the Schedule 3 criteria. Sponsors should not feel bound to continue with sponsorship if a relationship has broken down. Given the timing of the applicant’s claims of family violence, the Tribunal finds that the likely scenario is that the applicant is distressed because he no longer has a sponsor and his pathways to remaining in Australia are now narrowing.

43    In addition, the Tribunal considered the Applicant’s distress, associated with the rejection of his previous protection visa application, and concluded that this was not a compelling reason for waiving the relevant criteria stated that it placed less wait on medical reports and letters provided by the Applicant, in relation to his distress, which the Tribunal considered to be advocating on behalf of the Applicant and having been obtained for the purposes of enhancing the Applicant’s claims:

[24]    The Tribunal appreciates that it would have been distressing for the applicant to have his protection claims refused initially and then to have appealed this decision unsuccessfully. Furthermore, the applicant was also not successful in having the Minister intervene in his case. Nonetheless, the Tribunal does not consider that not being successful in obtaining a visa constitutes compelling reasons for waiving the Schedule 3 criteria. His inability to obtain ongoing residence in Australia has been the subject of careful assessment. The Schedule 3 criteria was not envisaged as a means for applicants to continue to remain in Australia when other avenues fail.

44    In relation to each of the above two issues – the breakdown of the Applicant’s relationship and the rejection of his previous protection visa application – the Tribunal considered two doctor’s reports in support of the Applicant and noted its concerns that the reports uncritically accepted the Applicant’s testimony and were obtained for the purposes of enhancing his claims before the Tribunal: see [25]-[28] of the Tribunal’s reasons.

45    Overall in relation to the Applicant’s family violence claims, the Tribunal concluded that the his claims of family violence and related mental health issues could not constitute compelling reasons for the purpose of waiving the relevant criteria:

[29]    The Tribunal is not satisfied, however, that claims of family violence just at the time when the sponsor refused to cooperate to attend a hearing with the applicant constitute compelling reasons for waiving the Schedule 3 criteria, particularly when the evidence indicates that the parties were supportive of one another up until that time and the applicant had not sought medical assistance for claimed mental health issues relating to family violence until the time of review.

46    The Tribunal went on to consider some of the particular submissions or evidence put forward by the Applicant in support of his family violence claims and associated mental health issues, and did not accept those particular submissions: see [30]-[33] of the Tribunal’s reasons.

47    Likewise, the Tribunal rejected that the Applicant’s previous migration agent withdrawing from the case could constitute a compelling reason for waiving the criteria: see [34].

48    Finally the Tribunal considered the Applicant’s submission that he had concerns about returning to Pakistan. The Tribunal noted the differences between any previous claim made by the Applicant in a protection visa application and the current “compelling reasons” assessment being undertaken by the Tribunal. The Tribunal concluded that the Applicant’s concerns about returning to his home town in Pakistan did not constitute a compelling reason to waive the relevant criteria, having regard to his ability to return to some other area of Pakistan. It is necessary to set out the Tribunal’s reasoning as to this issue in full:

[35]    The applicant at hearing also stated that he had concerns about returning to his home town, Parachinar, Pakistan as he is a Shia Muslim. The Tribunal is not aware of the claims he made in his previous Protection visa application but clearly these were rejected. Nonetheless, the test for compelling reasons for not applying the Schedule 3 criteria is not the same test used in Protection visa applications. The Tribunal in this case is not assessing whether there is a real chance that the applicant will suffer serious harm on return to Pakistan, only whether there are compelling reasons for not doing so which could be considered a lower test.

[36]    The applicant specified that his mother had told him not to return at this time because of the explosions that were occurring in the area. An article dated, 26 June 2017, entitled ‘Shia’s in Pakistan’s Parachinar caught in the middle of proxy wars’, reports that twin bombings had occurred on the previous Friday and that the death toll had risen to 67. Scores of people were also injured and were being treated in hospitals. Parachinar, the capital of the Kurram district in Pakistan’s Federally-Administered Tribal Areas (FATA), is a predominantly Shia area that shares borders with Afghanistan. The article also states that a faction of the sectarian militant group Lashkar-e-Jhangvi claimed responsibility for the attack, saying it was targeting Shia Muslims.

[37]    The Tribunal accepts that the applicant would be concerned about such relatively recent events in his home area and that he considers that it is unsafe for him to return there now. This does not, however, preclude the applicant returning to some other area in Pakistan where his safety would be assured and where he could work to support himself. The Tribunal is, therefore, not satisfied that the circumstances in the applicant’s home area constitute compelling reasons for waiving the Schedule 3 criteria.

49    For the reasons outlined above the Tribunal concluded as follows:

[38]    Having had regard to the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

The Federal Circuit Court Decision

50    The application for judicial review of the Tribunal’s decision was filed by the Applicant on 28 November 2017.

51    The application was listed for a directions hearing on 8 August 2018, which the Applicant failed to attend. In the Applicant’s absence, Registrar Allaway made orders dismissing the application for judicial review under r 13.03C(1)(c) of the FCC Rules.

52    On 16 August 2018, the Applicant filed an application requesting that the Federal Circuit Court re-instate the proceeding. The Applicant stated in that application that he missed the first hearing on 8 August 2018 due to a mistaken belief that the hearing was to be held on 18 August 2018.

53    The primary judge treated the application as one for relief under r 16.05(2)(a) of the FCC Rules to set aside the Registrar’s orders in circumstances where the Applicant was absent when the order was made.

54    At paragraph [44] of his reasons, the primary judge accepted that:

(a)    the Applicant had given some explanation for failing to appear at court on the occasion that the application was dismissed by a Registrar (the Applicant had made an error with respect to the date of his hearing, which was accepted by the primary judge as plausible and sufficient in the context of this case);

(b)    the application to set aside the Registrar’s order was made promptly (it was made within 8 days of the Registrar’s order); and

(c)    there is no suggestion that the application would prejudice the Minister.

55    However, having assessed the substantive merits of each of the Applicant’s eleven grounds in respect of his underlying judicial review application, the primary judge determined that the Applicant did not have an arguable case for judicial review.

56    Considering the matter as a whole, the primary judge was not persuaded that the Registrar’s order should be set aside under r 16.05(2)(a).

57    Given that the Applicant in this proceeding does not now rely on those same eleven grounds, it is not necessary to set out the primary judge’s reasoning as to each ground. However, I do consider the Applicant’s former grounds 3 and 11 before the Federal Circuit Court as overlapping with his ground 1(b) in this proceeding regarding the Tribunal’s reasons as to his fear of returning to Pakistan. Those grounds were as follows:

3.    The Tribunal makes an illogical finding that undermines my character and credibility.

At Paragraph 17 the Member questions my credibility and infers that I have made a bogus protection visa application if I considered returning to Pakistan. The Tribunal has gone beyond its powers to go over the Protection application and use this reasoning to undermine my creditability with regards my partner visa application.

…

11.     The Tribunal shows illogical reasoning and asks the wrong questions.

At paragraph 37 the Tribunal makes an illogical and unreasonable assessment of the safety and security of Pakistan without calling for evidence on this matter. The Tribunal does not take into consideration my personal health and mental health and how this will impact on my ability to resettle in Pakistan. In failing to consider all of the above the Tribunal has made an error in law.

58    The primary judge’s reasoning as to those grounds was as follows:

[29]     It was open to the Tribunal to compare the applicant’s differing positions about returning to Pakistan. It is unsurprising that his claim of wanting to return to Pakistan was seen as inconsistent with a claim that he sought a protection visa to avoid returning to Pakistan. The findings appear to have been open to the Tribunal on the material before it, without having to make further enquiries. These grounds do not appear to be arguable.

Consideration

59    The Applicant’s application before this Court is for an extension of time to seek leave to appeal and for leave to appeal the primary judge’s decision to this Court.

60    That application was made on the following grounds:

1.    The Applicant was not legally represented for his Federal Circuit Court matter. He was not aware of the interlocutory nature of his application and that he had to seek leave to make an out of time appeal.

2.    It is in the interests of administration of justice that the Applicant be granted an extension of time to seek leave to appeal the decision of the Federal Circuit Court given the serious implications to the Applicant of the decision.

3.    The delay is not significant, and the Applicant has taken prompt action to rectify this issue.

61    Accompanying the Applicant’s originating application filed on 3 August 2021 was the Applicant’s draft notice of appeal, which contained the following grounds of appeal:

1.     The Learned Primary Judge erred by not finding that the Appellant has not shown that he has arguable case for judicial review and that the Registrar’s order should not be aside. The Tribunal’s decision dated 1 November 2017 was affected by jurisdictional error because the Tribunal failed to adequately consider the Appellant’s claims of family violence and took irrelevant information into account with reference to the Appellant’s previous protection visa application.

2.     Further particulars to be provided.

62    As mentioned earlier, the Applicant now relies on proposed amended grounds of appeal as contained in his written submissions filed on 8 July 2022 and set out at the top of these reasons.

63    Before addressing the merits of the proposed amended grounds of appeal, I will address the Applicant’s application for extension of time to seek leave to appeal and application for leave to appeal.

Leave to appeal

64    The Applicant requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the decision of the primary judge refusing the application to re-instate the proceedings is an interlocutory judgment. The principles concerning the granting of leave to appeal are well-known and are not contested in this application. That is, generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398–399.

65    The Applicant’s application before the primary judge was to set aside the orders of the Registrar dismissing his judicial review proceeding, pursuant to r 16.05(2)(a) of the FCC Rules, which provides that the Court may set aside a judgment or order if it was made in the absence of a party.

66    The overriding principle in exercising that discretion is whether it would be in the interests of justice to set aside orders that have been made by the Court in the absence of a party: SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756 at [15]. The considerations relevant to the exercise of this discretion include:

(a)    whether there is an adequate reason for the non-appearance;

(b)    whether there is any prejudice to the Minister in reinstating the matter that could not be adequately compensated by an order for costs; and

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application.

67    With respect to considerations (a) to (b), as detailed earlier, the primary judge accepted that:

(a)    the Applicant had given some explanation for failing to appear at court on the occasion that the application was dismissed by a Registrar, which was plausible and sufficient in the context of this case; and

(b)    there was no suggestion that the application would prejudice the Minister, and it was noted the application to set aside the Registrar’s order was made promptly (it was made within 8 days of the Registrar’s order).

68    With respect to whether the applicant has a reasonably arguable prospect of success on the substantive application, the primary judge considered each of the Applicant’s eleven grounds of judicial review at that time and determined that the Applicant did not have an arguable case for judicial review.

69    Like the primary judge, I accept that considerations (a) to (b) are in favour of the Applicant here. However, if the Applicant’s underlying case for judicial review is not reasonably arguable, then it is unlikely that it is in the interests of justice to exercise the discretion under r 16.05(2) to set aside the Registrar’s orders dismissing the Applicant’s application (and therefore the exercise of that discretion would not be attended by sufficient doubt so as to require leave to appeal to be granted).

70    As will be explained in these reasons, I have come to the view that there is no merit in the Applicant’s proposed amended grounds of appeal. For that reason, I am of the view that the Applicant does not have a reasonably arguable prospect of success on the substantive application for the purposes of applying r 16.05 of the FCC Rules, and that the primary judge’s decision is not attended with sufficient doubt so as to require leave to appeal to be granted.

Extension of time

71    The Applicant filed his application for an extension of time to seek leave to appeal before this Court on 5 August 2021, which is 36 days after the primary judge’s orders on 30 June 2021 the subject of this appeal. Therefore, the Applicant’s application to this Court was filed 22 days outside of the 14 days allowed by r 35.13 of the Rules.

72    Rule 35.14 permits time to be extended. Generally, the discretion to extend time to an applicant exists in order to “do justice between the parties”: see, eg, Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 per McHugh J.

73    The Applicant referred to the relevant factors to be considered in determining whether an extension of time should be granted, as set out by Gleeson J in SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [15]:

(1)     the reasons for the delay. The Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored;

(2)     any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

(3)     the merits of the proposed appeal …

74    In addition, the Applicant’s application for an extension of time to seek leave to appeal referred to the serious implications to the Applicant of the Federal Circuit Court’s decision.

75    I will consider each of the other considerations in turn before turning to the merits of the proposed appeal.

(1) Reasons for delay

76    It is necessary that I consider both the length of the delay and the Applicant’s explanation of that delay. As mentioned above, the length of the delay in the Applicant’s filing of his application in this Court was 22 days.

77    The reason for the delay is set out in the Applicant’s unsworn affidavit dated 2 August 2021 – namely, that he did not have legal representation for his Federal Circuit Court proceeding, that he was ignorant that the decision of the Federal Circuit Court was interlocutory in nature and that he had to seek leave to appeal that decision within 14 days after it was made. Counsel for the Applicant submitted that it was implicit that the Applicant was unable to afford legal representation during this time. Indeed, the Applicant’s affidavit sworn on 8 July 2022 explains that he is now being partly financially supported by family members to assist in the paying of his legal fees.

78    Further, the Applicant’s 8 July 2022 affidavit explains that, following the Federal Circuit Court’s judgment, he sought legal representation from Victoria Legal Aid, and it was only after he was referred to Amity Lawyers that he was assisted with the filing of his application in this Court.

79    Counsel for the Applicant raised his history of appealing decisions in relation to visa applications in the past when informed about his ability to do so and the time within which an appeal was to be made. To that extent, the Applicant submitted that he was “understandably confused and misguided as to the workings of the system” but did not “sit back and do nothing about pursuing his rights”: SZOXP v Minister for Immigration and Border Protection [2016] FCA 183 at [23] per McKerracher J.

80    The Applicant concedes that a lack of financial resources and a mistaken understanding of the workings of the court system are not by themselves sufficient reasons to warrant the Court exercising its discretion to extend time, but that exercise of the discretion in this context depends on the circumstances, the nature of the decision and the consequences for the applicant.

81    In that regard, the First Respondent submitted that ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38] per Foster J. Further, the First Respondent submitted that there exists neither a right to legal representation in migration proceedings nor a right to free legal advice, and so a lack of legal representation cannot of itself be a reasonable explanation for delay in filing an application for leave to appeal.

82    Overall, the Applicant submitted that the delay in the present case was not considerable or due to a deliberate default on the Applicant’s part. It was submitted that the Applicant did the best he could to obtain assistance given his particular circumstances at the time.

83    Having regard to the minor extent of the delay, I accept the Applicant’s submissions in respect of this consideration.

(2) Prejudice to the First Respondent

84    The First Respondent accepts that the delay was not significant and that it did not cause any prejudice.

(3) Implications for the Applicant

85    The Applicant submitted that the Tribunal made material jurisdictional errors in refusing his application which meant that he has been denied the opportunity to present evidence to a delegated officer in the First Respondent’s Department concerning family violence he claims to have suffered from his former sponsor and why he fears returning to Pakistan.

86    The First Respondent’s response to this was that the impact of a refusal to extend time would have a minimal impact on the Applicant because the Applicant’s appeal has no reasonable prospects of success due to there being no jurisdictional error in the Tribunal’s reasons.

87    I do not accept the First Respondent’s submissions in this respect, and I accept that a dismissal of the Applicant’s application to extend time in this proceeding would deprive him of having his judicial review application substantively determined, and if he were successful, in having his visa application substantively determined.

88    However, whether the appeal has reasonable prospects of success is also a key consideration. In light of my view that the proposed amended grounds of appeal are of no merit, it is the decisive consideration. I therefore now turn to the merits of the Applicant’s proposed grounds of appeal in respect of his judicial review application. It is to be recalled that Counsel for the Applicant also consented to the final determination of the appeal.

Proposed amended grounds of appeal

89    As mentioned earlier, the Applicant in this proceeding limits the grounds relied upon to the one proposed amended ground of appeal – that the Tribunal failed to carry out its statutory task under cl 820.211(2)(d) of Sch 2 of the Regulations on the correct legal basis – having regard to two particulars. I have therefore proceeded on the basis of the Applicant’s two proposed pleaded particulars only.

90    Counsel for the Applicant in written and oral submissions raised certain issues which are outside the scope of the proposed amended grounds of appeal. For example, in the context of addressing proposed ground 1(b), Counsel for the Applicant submitted that the Tribunal cursorily dismissed the Applicant’s fear of returning to Pakistan on the assumption that he could relocate elsewhere, without any supporting evidence and without stating the basis for that conclusion. I discuss this issue in further detail later in these reasons, where I conclude that this issue is not within the proposed amended grounds of appeal. Counsel for the Applicant in her reply during the hearing also referred to the Tribunal’s finding that certain doctor’s reports had been obtained for the purposes of enhancing the Applicant’s claims and made oral submissions on that issue. Again, this issue is not within the scope of the Applicant’s proposed amended grounds of appeal.

91    The jurisprudence as to the meaning of “compelling reasons” at cl 820.211(2)(d)(ii) was not contested by the parties. I therefore proceed on the basis of the relevant principles concerning that phrase set out earlier in these reasons.

92    The First Respondent submits that this proposed amended ground (or grounds, if the particulars are considered separately) was not raised in the Federal Circuit Court, and so leave is required for it to be raised now in this Court. Given that the First Respondent was not prejudiced by the proposed amended ground as particularised and that the two particulars were substantively argued at the final hearing of this proceeding, to the extent it is required, I would grant leave to the Applicant to rely on its amended grounds.

93    In substance, the Applicant’s two particulars are discrete and so I now turn to consider them separately for the purposes of considering the merits of the Applicant’s case or, as agreed by the parties, to determine the appeal finally on the basis of the proposed grounds.

Proposed ground 1(a)

94    It is to be recalled that particular (a) is as follows:

The Tribunal failed to take into account that the Applicant and his former sponsor had registered their defacto relationship under the Relationships Act 2008 (Vic) in accordance with regulation 2.03A(5) of the Migration Regulations 1994 and proceeded on the incorrect assumption that the Applicant was required to demonstrate that he had been in a long standing relationship of one or two years with his sponsor in order for him to be able to raise the family violence provisions in clause 820.221(3)(a) and (b)(i)(A) as a compelling reason for the purposes of clause 820.211(2)(d).

95    It is to be noted that particular (a) contains two separate but related allegations against the Tribunal:

(1)    That it failed to take into account the registration under the Relationships Act 2008 (Vic).

(2)    That it proceeded on the incorrect assumption that the Applicant was required to demonstrate a long-standing relationship of one or two years with his sponsor in order to raise the family violence provisions as a “compelling reason”.

96    Paragraph 15 of the Tribunal’s reasons is the key paragraph impugned by the Applicant, and so I set it out once again in full:

Given the parties have never lived together it is also difficult to ascertain whether the relationship was a long-standing one of two years duration or more. While living together is not necessarily an indicator that parties have commenced a committed relationship, given the Tribunal’s other concerns in this case, the Tribunal is not satisfied that the parties up until the break-up had been in a longstanding relationship of two or more years duration which policy requires a decision maker to have regard to in assessing whether there are compelling reasons for waiving the Schedule 3 criteria.

97    Referring to [15] of the Tribunal’s reasons, the Applicant submits that the Tribunal failed to engage with the family violence issue because it proceeded on an erroneous view of what evidence was required in order for the Applicant to be able to enliven the discretion in clause 820.211(2)(d) and the family violence provisions.

98    The Applicant further submits the following:

(a)    Contrary to the Tribunal’s belief, a longstanding relationship of two years duration was not a policy requirement at the time the partner visa application was lodged on 10 November 2016. The two-year relationship requirement was part of Departmental policy before 2014 applying to unlawful applicants.

(b)    There is a statutory two year relationship requirement for applicants who already hold a subclass 820 Provisional Partner visa and who go on to apply for a subclass 801 Permanent partner visa: clause 801.221(6A) of Sch 2 to the Regulations.

(c)    The Tribunal was either confusing the criteria for the two subclasses or applying obsolete criteria in relation to applicants for a subclass 820 visa.

(d)    There is a one-year de facto relationship requirement pursuant to reg 2.03A(3) of the Regulations. This regulation provided that unless the couple could establish compelling circumstances, they needed to demonstrate that they had been in a de facto relationship for at least 12 months prior to application. However, pursuant to reg 2.03A(5), this requirement does not apply if the couple has registered their relationship under State or Territory legislation.

(e)    The couple had registered their relationship on 3 May 2017 pursuant to the Relationships Act 2008 (Vic), and a copy of the certificate of registration was provided to the Tribunal.

(f)    There is no mention of the relationship registration in the Tribunal’s decision and it appears the Tribunal completely overlooked it and proceeded on the basis that the applicant and his former sponsor had not been in spousal relationship for a required time and hence there was no need to consider his family violence claims.

99    The Applicant is correct that the relevant certificate of registration of relationship that has effect under reg 2.03A(5) was provided to the Tribunal and it was not referred to in the Tribunal’s reasons. Whether the failure to do so constituted jurisdictional error in the context of the Tribunal’s “compelling reasons” assessment is the first issue.

100    The second issue is whether the Tribunal’s alternative consideration of a two-year de facto relationship requirement constituted jurisdictional error in the context of the Tribunal’s “compelling reasons” assessment. It is convenient to consider this issue first.

101    In my view, the Tribunal did not proceed on any incorrect assumption that the Applicant was required to demonstrate a long-standing relationship of one or two years with his sponsor in order to raise the family violence provisions as a “compelling reason” (or otherwise in order to raise a “compelling reason” within the meaning of cl 820.211(2)(d)(ii)). At paragraph 15 of the Tribunal’s reasons, the Tribunal states that “policy requires a decision maker to have regard to” whether there is a longstanding relationship in assessing whether there are “compelling reasons” to waive the relevant criteria. Such an assessment for the purposes of exercising its overall discretion as to whether there are compelling reasons to waive the criteria is different in nature from the “incorrect assumption” alleged by the Applicant.

102    The Tribunal proceeded on the basis that whether there was a longstanding relationship was a matter that the Tribunal was to have regard to in determining whether compelling reasons existed, rather than a hurdle requirement. This is made clear by the fact that, having determined that it was not satisfied that the parties had been in a longstanding relationship of two or more years duration, the Tribunal in any event went on to consider other matters relevant to the assessment of whether there were compelling reasons to waive the relevant criteria. The Tribunal had regard to the applicant’s circumstances individually and cumulatively and was not satisfied that there were compelling reasons for not applying the relevant criteria.

103    Second, it is clear that any assessment of the “family violence provisions” specifically by the Tribunal was not contingent on the issue of whether there was any longstanding relationship. There is no indication in the Tribunal’s reasons as a whole or at paragraph 15 that it proceeded on any such misapprehension.

104    Accordingly, one of the Applicant’s allegations as pleaded in its proposed ground 1(a) – that the Tribunal proceeded on the incorrect assumption that the Applicant was required to demonstrate a long-standing relationship of one or two years with his sponsor in order to raise the family violence provisions as a “compelling reason” – is not made out.

105    To the extent that the Applicant makes any further submission that the Tribunal’s consideration of whether there was a longstanding relationship was more broadly impermissible and otherwise gave rise to jurisdictional error in the Tribunal’s consideration of clause 820.211(2)(d)(ii) more generally, for the following reasons, I would find that such a submission has no merit.

106    First, whatever the current policy position of the First Respondent’s department, I am not satisfied that the duration of an applicant’s alleged de facto relationship is an irrelevant consideration that the decision maker is not to take into account for the purposes of clause 820.211(2)(d)(ii).

107    In fact, the First Respondent submits that consideration of whether there has been a longstanding relationship of two years or more is consistent with the explanatory statement for the legislation that introduced cl 820.211(2)(d) of the Regulations in its current form: Migration Regulations (Amendment) 1996 No. 75 (Cth) Explanatory Statement at p10), which relevantly states in relation to the discretionary power to waive the Sch 3 criteria where there are “compelling reasons”:

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 longstanding relationship which has been in existence for two years or longer. [emphasis added]

108    Second, it should not be inferred that the Tribunal was misapprehending the requirements imposed by reg 2.03A(5) of the Regulations in its reference to “policy”. Nor should it be inferred that the Tribunal was misapprehending or relying on a former ministerial policy, such as the Procedures Advice Manual or “PAM3” policy attached to the Applicant’s written submissions. There is nothing in the Tribunal’s reasons to suggest that the Tribunal applied an outdated version of the policy or unlawfully confined itself to the terms of the PAM3 policy or relied on any policy to adopt a higher standard in the assessment of “compelling reasons”.

109    Finally, in any event, any consideration of whether there was a longstanding relationship of two years or more was not material, reading the Tribunal’s reasons as a whole.

110    This disposes of the issue I referred to earlier as the “second significant issue”, being whether the Tribunal’s alternative consideration of a two-year de facto relationship requirement constituted jurisdictional error in the context of the Tribunal’s “compelling reasons” assessment. Had the Tribunal proceeded on the basis that it was not required to consider whether the applicant had been in a longstanding relationship, it would still not have been satisfied that there were “compelling reasons” pursuant to clause 820.211(2)(d)(ii) to waive the relevant crtieria.

111    I now return to the “first significant issue”, being whether the Tribunal’s failure to take into account the Applicant’s registered de facto relationship constitutes jurisdictional error.

112    If the registration had been properly taken into account by the Tribunal, the effect of reg 2.03A(5) of the Regulations is that the decision maker would not be required (pursuant to reg 2.03A(3)) to be positively satisfied that the Applicant had been in a relationship for at least 12 months for the purposes of determining the Applicant’s partner visa application. However, in this case, the Tribunal did not consider or determine the criteria under reg 2.03A as it applied to the Applicant’s partner visa application. The Tribunal in its reasons did not proceed on the basis that the Applicant had to satisfy it that he had been in the de facto relationship for at least 12 months pursuant to reg 2.03A. The Tribunal was only determining whether there were “compelling reasons” to waive the relevant Schedule 3 criteria. It is not clear that failing to take into account the registered de facto relationship relevantly constitutes a legal error for the purposes of the statutory task under cl 820.221(2)(d)(ii), and the Applicant did not make any submissions in this regard. In any event, in my view, there is no realistic possibility that the existence of the registration proving the de facto relationship could have constituted a “compelling reason” moving the Tribunal to waive the relevant Sch 3 criteria, having regard to the Tribunal’s reasons as a whole, and having regard to the fundamental nature of the “compelling reasons” discretion under clause 820.211(2)(d)(ii). It is difficult to see how evidence of the de facto relationship’s existence in this way could be a compelling reason to waive the criteria for a partner visa which generally requires the existence of a de facto relationship. As the PAM3 policy attached to the Applicant’s written submissions says:

As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing. [original emphasis]

113    Accordingly, if the failure to take into account the registration of the de facto relationship did constitute a legal error, I would not be satisfied that such an error was material so as to constitute jurisdictional error.

114    The Applicant’s proposed ground 1(a) is of no merit.

Proposed ground 1(b)

115    It is to be recalled that particular (b) is as follows:

The Tribunal wrongly assumed that as the Applicant’s protection visa application had been refused by another Tribunal, it was not required to make its own independent assessment of whether the evidence provided by the Applicant concerning his fear of returning to Pakistan could constitute a compelling reason for the purpose of him pursuing his partner visa application in Australia.

116    The Applicant submits the following:

(a)    The Tribunal failed to engage with the Applicant’s fears of returning to Pakistan because this had been decided by another Tribunal in the rejection of the Applicant’s protection visa application.

(b)    Protection claims can constitute a compelling reason for the purposes of cl 820.211(2)(d), and that it was a jurisdictional error for the Tribunal to rely on a decision made by another Tribunal some years earlier as a basis for discounting such a claim now: citing MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478 at [29].

(c)    There was evidence of recent bombings in the Applicant’s home area provided to the Tribunal but the Tribunal cursorily dismissed the applicant’s concerns on the assumption that he could relocate elsewhere without stating the basis for that conclusion.

117    To address the first two points set out above, it is necessary to consider [35] of the Tribunal’s reasons in particular:

[35]     The applicant at hearing also stated that he had concerns about returning to his home town, Parachinar, Pakistan as he is a Shia Muslim. The Tribunal is not aware of the claims [the applicant] made in his previous Protection visa application but clearly these were rejected. Nonetheless, the test for compelling reasons for not applying the Schedule 3 criteria is not the same test used in Protection visa applications. The Tribunal in this case is not assessing whether there is a real chance that the applicant will suffer serious harm on return to Pakistan, only whether there are compelling reasons for not doing so which could be considered a lower test.

118    Reading [35] (and also [36]-[37]) fairly, it is clear that the Tribunal did not assume, as the Applicant submits, that it was not required to make its own independent assessment of the evidence provided by the Applicant concerning his fear of returning to Pakistan and whether this constituted a compelling reason for not applying the relevant criteria. In fact, [35] indicates the opposite and makes clear that the Tribunal was aware that it had to make its own independent assessment of the evidence put to it, as it went on to do.

119    After considering the evidence put before it by the Applicant at [36], the Tribunal made the following conclusion as to whether the Applicant’s fear of returning to Pakistan was a “compelling reason” to waive the relevant criteria:

[37]    The Tribunal accepts that the applicant would be concerned about such relatively recent events in his home area and that he considers that it is unsafe for him to return there now. This does not, however, preclude the applicant returning to some other area in Pakistan where his safety would be assured and where he could work to support himself. The Tribunal is, therefore, not satisfied that the circumstances in the applicant’s home area constitute compelling reasons for waiving the Schedule 3 criteria.

120    The final point raised by the Applicant set out above is factually related to the first two points (being in relation to the Applicant’s fear of returning to Pakistan), but is different to the alleged error pleaded at proposed ground 1(b). The Applicant submits that the Tribunal did not set out the basis for its conclusion that the Applicant could safely relocate to another part of Pakistan, or as submitted during the hearing, that the Tribunal had no evidence on the record for such a finding and “seems to have misconceived what it was required to do”.

121    To the extent that the Applicant’s submission in this regard is within its pleaded proposed amended ground 1(b) (that the Tribunal wrongly assumed that it was not required to make its own independent assessment of whether the evidence provided by the Applicant concerning his fear of returning to Pakistan could constitute a compelling reason for the purpose of him pursuing his partner visa application in Australia), it has no merit. Paragraphs 36 to 37 do not indicate that the Tribunal did not make its own independent assessment of the evidence of recent bombings in the Applicant’s home area provided to the Tribunal, in the sense that it relied on any previous findings as to the Applicant’s previous protection visa application or otherwise misapprehended its statutory task. Rather, the Tribunal considered the Applicant’s evidence, made a factual finding that it would not preclude him from returning to some other area of Pakistan where he would be safe and could work, and therefore found that the submission did not constitute a “compelling reason” to waive the relevant criteria. The Tribunal did not misconceive what it was required to do.

122    To the extent that the Applicant’s submission regarding relocation is a submission that the Tribunal made a finding based on no evidence or without sufficiently stating its reasons, or failed to give actual intellectual consideration to the Applicant’s evidence by “cursorily dismissing” it, or failed to accord natural justice to the Applicant in making such a finding without disclosing its factual basis to the Applicant, it is not within the pleaded proposed amended ground 1(b) relied upon by the Applicant.

123    During the hearing, I sought the First Respondent’s reply to the Applicant’s submission in this regard. Counsel for the First Respondent asserted that the issue was outside the proposed amended grounds of appeal and she was not able to respond to the submission as the First Respondent had not properly been put on notice of the issue. Following this, the Applicant did not address the First Respondent’s assertion, nor otherwise seek leave to further amend its proposed grounds of appeal.

124    The inescapable conclusion is that the Applicant’s submissions as to the Tribunal’s findings regarding potential relocation in Pakistan, insofar as they encompass grounds of error of the type listed at paragraph 122 above, is not within the scope of his proposed amended grounds of appeal. Although the chapeau of the Applicant’s proposed amended ground 1 is broad and general – alleging that the Tribunal did not carry out its statutory task as required by clause 820.211(2)(d) due to the Tribunal’s material errors of law – that does not relieve the Applicant of the requirement to identify and particularise its assertions of errors of law or jurisdictional error clearly and precisely in its pleadings so as to enable the respondent to answer the case put against it (or, as required by r 36.01(2)(c) of the Rules, that the notice of appeal state “briefly but specifically, the grounds relied on in support of the appeal”). For instance, the proposed amended ground 1, broadly expressed as it is, would not be sufficient to encompass grounds of error in relation to the Tribunal’s findings regarding the potential relocation of the Applicant such as those listed above at paragraph 122 of these reasons. The Applicant’s particulars to its proposed amended ground 1 do identify and particularise certain assertions of errors of law made by the Tribunal. The Applicant’s case is limited to those errors of law asserted in those particulars. Although the Court may permit some flexibility in the application of such a rule where the non-complying party is unrepresented, this is not the case here.

125    It is no answer that the issue was raised in one sentence at the end of paragraph 32 of the Applicant’s written submissions such that the First Respondent should be taken to have had notice of the issue. After the filing of the written submissions, no proposed amended notice of appeal containing such an issue was filed or served. The issue was in fact raised by the Applicant when unrepresented at the Federal Circuit Court by the proposed ground 11 before the primary judge (as set out above in the relevant section of these reasons). However, even taking that into account as context, this does not cure the fact that the issue is not raised by the Applicant’s initial draft notice of appeal nor the proposed amended grounds of appeal in his written submissions that was prepared with the assistance of Counsel.

126    On the basis of the above reasons, I am of the view that the Applicant’s proposed amended ground 1(b) is of no merit.

Conclusion

127    As stated earlier in these reasons, my determination of the application before me (being an application to extend time to seek leave to appeal and an application for leave to appeal) is in my view, having considered the factors relevant to my discretionary power to grant those applications, ultimately contingent on the merits of the underlying appeal and underlying judicial review application.

128    Having fully assessed the merits of the Applicant’s proposed amended grounds of appeal and having considered those grounds on a final basis (as consented to by Counsel for the Applicant), I am of the view that the proposed amended grounds of appeal do not evince any relevant error on the part of the primary judge, or jurisdictional error on the part of the Tribunal. Therefore, I find that the Applicant’s grounds of appeal are of no merit and are not reasonably arguable. For that reason, and in conformity with the principle described by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [19]-[20] per Kiefel CJ, Gageler, Keane and Gleeson JJ (in relation to a statutory discretion to extend time under the Act not wider than the discretion to extend time pursuant to r 35.14 of the Rules), I would not exercise my discretion to grant the Applicant’s application for an extension of time to seek leave to appeal the primary judge’s decision. Similarly, I would not grant leave to appeal, as the primary judge’s decision is not in my view attended by sufficient doubt.

Disposition

129    For the reasons outlined above, I make the following orders:

(1)    The Applicant be granted leave to rely on the amended proposed ground of appeal contained in his written submissions filed on 16 May 2022.

(2)    The application for an extension of time to seek leave to appeal and for leave to appeal be dismissed, with costs.

(3)    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

Associate:

Dated:    23 November 2022