FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Citizenship [2026] FCA 1638

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal, to be determined on a lump sum basis.

5.    Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

6.    In the absence of any agreement:

(a)    within a further 14 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant is a citizen of India who applied for a Partner (Temporary) (Class UK) visa (the partner visa). On 30 April 2015, a delegate of the Minister for Immigration and Border Protection (the Delegate) refused to grant the visa. On 11 October 2018, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the Delegate. On 23 August 2024, a judge of the Federal Circuit and Family Court of Australia (Div 2) (the Circuit Court) dismissed an application for judicial review of the Tribunal’s decision: Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 766 (the Reasons). The appellant appeals to this Court from the judgment of the Circuit Court.

2    For the reasons that follow, I have concluded that the appeal should be dismissed.

Key relevant provisions

3    At the time of his application for the partner visa, the appellant did not hold a substantive visa. Further, he had not held a substantive visa (and had been an unlawful non-citizen) for a period of about four years.

4    The criteria for the partner visa which needed to be satisfied at the time of the application were set out in clause 820.211 in Schedule 2 to the Migration Regulations 1994 (Cth). The clause is set out in [10] of the Reasons. Subclause 820.211(2) relevantly provided that an applicant meets the requirements of that subclause if:

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

(i)    the applicant:

(A)    entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B)    satisfies Schedule 3 criterion 3002; or

(ii)    the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

(Emphasis added.)

5    Schedule 3 criterion 3001 required that the application for the visa be lodged within 28 days after the last day the applicant held a substantive visa. The appellant did not meet that requirement. Accordingly, he could not satisfy the requirements of the above provision unless the Minister was satisfied that there were compelling reasons for not applying that criterion.

Background facts and matters

6    It is necessary to refer to the procedural history of the appellant’s application for the partner visa in some detail in order to provide context for some of the appeal grounds, which raise procedural fairness issues. The following statement of the background facts and matters is drawn substantially from the Reasons.

7    On 25 March 2009, the appellant arrived in Australia on a student visa: Reasons, [7].

8    On 15 July 2010, the appellant’s student visa was cancelled and the appellant remained in Australia as an unlawful non-citizen: Reasons, [7].

9    In March 2014, the appellant met his sponsor at a party: Reasons, [8]

10    In early July 2014, the appellant and his sponsor married: Reasons, [8].

11    On 20 August 2014, the appellant lodged the partner visa application. He was granted a bridging visa the next day: Reasons, [8].

12    The appellant was assisted by a migration agent in his application: Reasons, [9].

13    On 30 April 2015, the Delegate refused the appellant’s application for the partner visa. The Delegate found that compelling reasons did not exist to justify waiving the requirement in criterion 3001, and therefore the appellant did not meet subclause 820.211(2)(d) in Schedule 2 to the Migration Regulations: Reasons, [16].

14    The appellant applied to the Tribunal for review of the Delegate’s decision.

15    Before the decision of the Tribunal that is relevant for present purposes (dated 11 October 2018), there were two other Tribunal decisions in relation to the appellant’s application for review.

16    On 22 October 2015, the Tribunal affirmed the Delegate’s decision to refuse the partner visa: Reasons, [17].

17    On 8 April 2016, the Circuit Court quashed the Tribunal’s decision and ordered by consent that the matter be remitted to the Tribunal for reconsideration: Reasons, [19].

18    On 6 January 2017, the Tribunal again affirmed the decision to refuse the visa. However, on 10 October 2017, the Circuit Court again quashed the Tribunal’s decision and ordered by consent that the matter be remitted to the Tribunal for reconsideration: Reasons, [20].

19    On 14 May 2018, the Tribunal invited the appellant to attend a hearing scheduled for 27 June 2018. The invitation noted the appellant’s request for a Punjabi interpreter: Reasons, [21].

20    On 26 June 2018, the day before the scheduled hearing and just after 11.00 am, the Tribunal sent an SMS text message to the appellant reminding him of the hearing the following day. The Tribunal then received a phone call from the appellant seeking postponement of the hearing: Reasons, [22]. A case note entry made by an administrator at the Tribunal at 11.24 am that day recorded:

Applicant called a moment ago saying that he was ill and unable to attend tomorrows [sic] scheduled meeting. He said that he had sent his medical certificate by express post yesterday and was assured it would be received at the tribunal today.

I said that all requests for hearing postponement must be made in writing. I stated that only a presiding member could grant the postponement and until applicants received advice that a postponement has been granted they must assume the scheduled hearing will take place. I said that I could not grant the postponement and until the Member received a written request for postponement it would not be considered.

I said that given the timeframe prior to the hearing electronic correspondence may be more suitable for a hearing postponement request. RA asked for our email address which I gave to him. He said he would email a request for postponement as soon as possible. I said that evidence to support the request is required.

I said I would make a note of our conversation for the member.

21    At 1.22 pm, the appellant sent an email to the Tribunal registry. In the email, he referred to a medical certificate which he had left at reception and which he had been informed would be forwarded to the Tribunal Member that day: Reasons, [23].

22    The Tribunal’s case notes record that, at 2.16 pm on the same day (26 June 2018), an attempt was made to contact the appellant to inform him that the hearing had been cancelled due to the unavailability of an interpreter. The case note records that no answer was received from the appellant and that the administrator followed up with an email: Reasons, [24].

23    That same day, the Tribunal wrote to the appellant advising that “due to circumstances beyond our control the Member is unable to conduct the hearing on the day”. The appellant was informed that the Tribunal would write to him to advise of a new hearing date: Reasons, [25].

24    On 28 June 2018, the Tribunal wrote to the appellant advising that the matter would be re-listed for hearing again shortly. The text of the letter illuminates some of the confusion which had occurred in the previous days: Reasons, [26]. The Tribunal stated:

On 26 June the Tribunal received an email seeking a postponement of a review hearing set down for 27 June 2018.

On 27 June the Tribunal received a report from Clinical Psychologist Mr Edwin Kleynhans dated 22 June 2018. In the letter he states an opinion that you would “currently have challenges in giving evidence at a Tribunal such as the AAT”.

However, on 26 June 2018 the hearing set down for 27 June 2018 was adjourned on the basis that an interpreter in your language was unavailable at the last minute.

The matter will shortly be listed again for hearing.

The Tribunal has however considered your correspondence of 27 June 2018.

Please note carefully the following. If you make any further postponement request that request must be supported by satisfactory medical evidence that addresses the following matters:

-    It should indicate precisely what diagnosis has been made of your condition and you should include an opinion as to whether, and how soon, you would be able to participate in a hearing of a likely duration of less than 3 hours (whether by attending the Tribunal in person, or by telephone).

-    The medical evidence should also address the question as to whether appropriate medication or other measures (such as adequate breaks) would enable you to attend the Tribunal in person.

You may find it helpful to show this letter to the doctor so that you can be sure to provide what the Tribunal requires.

If you make a further request for a postponement the Tribunal may refuse the request if the grounds for the request or the evidence in support are considered insufficient …

25    The Tribunal case notes record that the Tribunal called the appellant on 29 June 2018 to follow up its correspondence of the previous day. The Tribunal registry explained that the Member had requested more detailed medical documentation if the appellant was unable to attend any upcoming hearings. The appellant informed the registry that he understood and would take the Tribunal’s email to the doctor: Reasons, [27].

26    On 6 July 2018, the Tribunal invited the appellant to attend a hearing scheduled for 29 August 2018. The letter explained that the appellant could give evidence and present arguments relating to the issues arising in his case. The letter noted that he had requested the assistance of a Punjabi interpreter: Reasons, [28].

27    On 22 August 2018, the Tribunal sent an SMS text message to the appellant reminding him of the hearing which had been listed on 29 August 2018: Reasons, [29].

28    On 25 August 2018, the appellant provided a report from Mr Kleynhans dated 22 August 2018: Reasons, [30].

29    Relevantly, the report prepared by Mr Kleynhans addressed the current mental health status for each of the appellant and the sponsor. Among other things, the report noted that the couple first consulted Mr Kleynhans on 18 November 2014 and that the sponsor was diagnosed with “adjustment disorder with mixed anxiety and depressed mood”. He noted that at the time of the initial consultation the sponsor was receiving treatment from a psychologist. Mr Kleynhans noted that the couple consulted with him again on 2 April 2016, at which time he diagnosed the sponsor with “major depressive disorder with melancholic features and anxious distress” together with “generalised personality disorder”: Reasons, [31].

30    Mr Kleynhans noted that he conducted a further review of the couple on 7 June 2018. He recorded that, at that time, the appellant had become stressed because of his wife’s mental health condition and he wanted to postpone a Tribunal hearing. On this occasion, Mr Kleynhans diagnosed the appellant with “adjustment disorder with mixed anxiety and depressed mood” and found him not to be in the right state of mind to attend a hearing: Reasons, [32].

31    The report of 22 August 2018 also addressed a consultation with the appellant on 22 June 2018 and a further session with the couple on 17 August 2018: Reasons, [33].

32    In relation to the sponsor, Mr Kleynhans noted she has serious ongoing clinical symptoms and that “she is still consulting her psychologist. The family doctor prescribed an antidepressant, Cipramil for her”. Noting the ongoing diagnosis of major depressive disorder with anxious distress and generalised personality disorder, Mr Kleynhans recorded her depressed mood as severe and recommended that the sponsor talk to her family doctor about reviewing her antidepressant medication: Reasons, [34].

33    As for the appellant, Mr Kleynhans again diagnosed him with “adjustment disorder with mixed anxiety and depressed mood”. He observed that the appellant had problems with memory, attention span and concentration when anxious: Reasons, [35].

34    In terms of the couple’s ability to participate in a hearing at the Tribunal, Mr Kleynhans opined as follows (Reasons, [36]):

In terms of for how long they won’t be able to attend in person at a Tribunal, I am anticipating that they would be ready to attend within 6 months as of now, but subject to the ongoing problems she is having in getting her daughter to rejoin them in their home. I’m also suggesting when attending in person, that the hearing should not go longer than 1.5 hours, and if it need be longer than 1.5 hours [there should be] a hour-break. However, the hearing should not be longer than 3 hours.

Telephone interview. I am of the opinion that a lower level of stress is essential for the psychological and physical well-being of [the sponsor], which is the foundation for his compelling circumstances and why they need to be interviewed via videoconferencing or telephone link. In terms of telephone/video conferencing timelines, I am suggesting that they should be ready in 2 weeks and for the interview not to be longer than one hour. Or if need be a break of one hour in between. Given their compelling circumstances outlined in this and other reports, the best option would be a telephone conference call.

35    On 27 August 2018, the appellant requested a further postponement of the hearing. On the same day, the Tribunal wrote to the appellant and advised that the Member had agreed to a postponement. The appellant was informed that the hearing would be rescheduled as a telephone hearing and he would be advised of a new hearing date once available: Reasons, [37].

36    On 18 September 2018, the Tribunal invited the appellant to attend a hearing via telephone scheduled for 10 October 2018. In the hearing invitation, the Tribunal stated that the Member wished to take evidence from the sponsor. The letter stated however that the sponsor was not required to give her evidence at the telephone hearing and that she may give her evidence in the form of a statutory declaration if she wished: Reasons, [38].

37    On 9 October 2018, the Tribunal received an email from the appellant which attached a short statutory declaration declared by the sponsor with a letter attached which explained the nature of the couple’s relationship. The statutory declaration had been witnessed by Mr Kleynhans that day. The covering email also stated that it attached “my medicine which I am taking for stress”. The attachment was a prescription for the medications Doxycycline and Lexapro, dated 28 August 2018 and written for the appellant by a general practitioner: Reasons, [39].

38    The Tribunal’s case notes also record that the appellant telephoned the Tribunal registry around midday on 9 October 2018 to confirm that he had just sent emails and that he wanted the information treated as urgent correspondence: Reasons, [40].

39    On 10 October 2018, the appellant attended the hearing by telephone, assisted by an interpreter in the Punjabi and English languages. Notes of the hearing record that it commenced at 11.29 am and was completed at 1.31 pm. The Tribunal Member also contacted the appellant’s treating psychologist, Mr Kleynhans, by telephone during the course of the hearing: Reasons, [41].

40    On 11 October 2018, the Tribunal affirmed the delegate’s decision. The decision record was certified by the Tribunal Member at 4.53 pm that day, although it appears that the appellant was not notified of the decision until 16 October 2018: Reasons, [42].

41    On 12 October 2018, the day after the decision, Mr Kleynhans sent a report to the Tribunal under the subject heading “addendum to hearing at AAT on 10/10/2018; Case No. 1724826”: Reasons, [43]. Mr Kleynhans attached the following documents to that email:

(a)    a report dated 11 December 2014. This report was before the Delegate (and the Tribunal) and was provided in response to the Department’s invitation to comment dated 6 October 2014; and

(b)    a report addressed to the Tribunal Member, dated 12 October 2018, in which Mr Kleynhans sought to explain some of the time constraints and difficulties he encountered in giving evidence during the telephone hearing the previous day, and which sought to clarify his answers to questions asked by the Tribunal. Mr Kleynhans explained that, due to time constraints on 10 October 2018, he had not been able to give an accurate account of events but he wanted to clarify the following matters after reviewing previous documentation:

(i)    that he was aware that the appellant had been illegal in Australia for a number of years;

(ii)    that the sponsor was getting treatment from her own psychologist and that she had arranged a mental health care plan with her family doctor;

(iii)    that from 22 June 2018, he had planned to see the appellant every 3 weeks; and

(iv)    that the appellant had attended his family doctor on 28 August 2018 and had been prescribed Lexapro for stress.

42    Mr Kleynhans’s report dated 12 October 2018 was not before the Tribunal at the time it made its decision: Reasons, [44].

The Tribunal decision

43    The decision record and the Tribunal’s reasons (the Tribunal’s reasons) (dated 11 October 2018) are located in the Appeal Book at pp 193-203.

44    Under the heading “Application for Review”, at paras 1-21, the Tribunal outlined the procedural history of the appellant’s application for the partner visa. The Tribunal set out its conclusion at para 21, namely that the decision under review should be affirmed.

45    Under the heading “Consideration of claims and evidence”, the Tribunal considered the issues, namely: (a) whether the appellant met the Schedule 3 criteria; and (b) if not, whether there were compelling reasons for the waiver of the requirements.

46    The Tribunal concluded, at para 28, that the appellant did not satisfy criterion 3001. Therefore, he did not meet the relevant Schedule 3 criteria. Accordingly, as the Tribunal stated at para 29, it was necessary to consider whether there were compelling reasons for not applying the criteria.

47    At paras 30-37, the Tribunal discussed the expression “compelling reasons” and relevant case law.

48    At para 38, the Tribunal noted that, at the hearing, it had invited the appellant to raise any matter he considered to be compelling reasons for the waiver of the Schedule 3 criteria.

49    In para 39, the Tribunal referred to the period that the appellant had been an unlawful non-citizen and the appellant’s evidence about that period. The Tribunal stated:

The Tribunal takes his lengthy period of remaining unlawfully into consideration and notes he commenced his relationship with his sponsor during that time.

50    In para 40, the Tribunal considered the appellant’s evidence and submission that his relationship with the sponsor was long-standing:

The applicant gave evidence that his relationship with his sponsor is now of some 4 years duration. The Tribunal acknowledges that a long standing relationship may be a reason to waive the legislative requirements for the visa. However, cohabitation or living together is but one factor for consideration in this regard.

51    In para 41, the Tribunal expressed concern about the evidence of the very short period of time that the appellant and his spouse knew each other before they were married. The Tribunal then reasoned:

Whilst the Tribunal accepts that some 4 years have passed since the parties met, moved in and married the Tribunal is not satisfied that the claimed long standing period alone amounts to a compelling reason to waive the Schedule 3 criteria as the Tribunal finds other factors have contributed to the period of time including the passing of time through the many review processes in relation to this application. The Tribunal does not consider the claimed length of the relationship alone to be a compelling reason for waiver.

52    At paras 42-44, the Tribunal considered the appellant’s contentions that he and the spouse are in a genuine spousal relationship and are married; and that this circumstance constitutes a compelling reason to waive the Schedule 3 criteria. The Tribunal stated that, while there may be circumstances when a genuine marriage may itself provide a compelling reason to waive the Schedule 3 criteria, “compelling reasons” must involve something in addition to the basic prerequisite criteria for the grant of the visa, citing Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204; 94 FCR 72. The Tribunal reasoned at para 44:

As a genuine relationship is the basis for all Partner visa applications the Tribunal has considered if there is anything in addition to this to persuade it the genuine marriage claim involves something more in the circumstances of this application. The parties claim to be emotionally and financially dependent on each other. The Tribunal accepts this claim but finds overall the claim does not present as sufficiently strong or convincing enough to persuade it to waive the Schedule 3 requirements. The Tribunal does not waive the Schedule 3 criteria on the basis of the claimed genuine relationship between applicant and sponsor in this application.

53    In a lengthy section of its reasons (at paras 45-64), the Tribunal considered the appellant’s contentions that health issues affecting both him and his sponsor constituted compelling reasons to waive the Schedule 3 criteria. In this section of the reasons, the Tribunal considered in some detail Mr Kleynhans’s reports, the appellant’s evidence and the sponsor’s evidence. In relation to Mr Kleynhans’s reports, the Tribunal stated (among other things) that, significantly, Mr Kleynhans did not refer to any therapeutic treatment given by him to the sponsor or the appellant (para 52). The Tribunal found that the appellant’s evidence in relation to health matters was not always reliable (para 59). The Tribunal accepted some evidence in relation to the sponsor’s health and unemployment status (para 61). At paras 62-64, the Tribunal reasoned:

62.    The Tribunal has major concerns with the medical evidence. The psychologist’s reports appear to be based on symptoms as described by the sponsor and applicant. There is no evidence before the Tribunal to indicate the type of treatment if any, that the sponsor and or applicant are currently undertaking for their claimed mental health issues. There are no detailed suggestions by the psychologist of further treatment. The Tribunal considers the psychology reports have been obtained by the parties primarily to assist in a migration outcome.

63.    The Tribunal is of the view, frequently expressed that it is normal for a sponsor to suffer from stress and depressed mood if faced with the prospect of her partner receiving a negative migration outcome. Furthermore it is reasonable to expect a level of hardship if partners are separated from one another for any extended period of time. This is a common experience for a large number of applicants applying offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident.

64.    Whilst the Tribunal accepts that the parties support each other as claimed in their evidence, the Tribunal finds that this is normal in a relationship and more so in a troubled relationship. Whilst the Tribunal gives some weight to all that has happened to the parties, [it] finds overall, no evidence sufficiently convincing such as to persuade the Tribunal to waive schedule 3 on the basis of health circumstances of the parties.

54    At para 65, the Tribunal stated that the appellant’s lengthy period in Australia as an unlawful non-citizen was a major concern. The Tribunal stated that it found “no persuasive reason or convincing explanation” for the appellant remaining unlawfully in Australia from the time his visa ceased in 2010 to the time he was granted a bridging visa in 2014. The Tribunal described this immigration history as “appalling” and stated that it gave significant weight to these matters.

55    At para 66, the Tribunal stated that the appellant has a good relationship with his family in India and found that there was no reason why he could not return home to make his application offshore.

56    At para 67, the Tribunal set out its conclusion that it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

The reasons of the primary judge

57    The appellant was not legally represented in the proceeding in the Circuit Court.

58    The primary judge set out the background facts and matters at [7]-[44] of the Reasons. His Honour outlined the Tribunal’s decision and reasons at [45]-[50] of the Reasons.

59    At [51], the primary judge summarised the appellant’s 15 grounds of review.

60    His Honour set out the legal framework at [52]-[64], including provisions and principles relating to: procedural fairness; failure to consider evidence or submissions; and apprehended bias.

61    His Honour outlined the appellant’s submissions at [70]-[77] of the Reasons. Then, at [78]-[141], his Honour considered each of the grounds relied on by the appellant. His Honour concluded that none of the grounds were made out.

The appeal to this Court

62    On 19 September 2024, the appellant filed a notice of appeal from the judgment of the Circuit Court. The notice of appeal was evidently prepared without the benefit of legal assistance. The notice of appeal annexes a two-page document headed “Ground of application”, which sets out nine appeal grounds. One of the issues that arises is whether these grounds raise new points on appeal, for which leave is required. The first respondent (the Minister) opposes leave being granted,

63    If and to the extent that the appellant seeks to rely on new points on appeal, he needs leave to do so: WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 (WGKS) at [13]. The applicable principles relating to leave to rely on a new point on appeal are well established. In WGKS, the Full Court stated:

18    The principle governing the Court’s appellate jurisdiction is that appeals proceed by way of rehearing. Other than in the most exceptional of cases, parties are bound by the conduct of their case at trial, as Gibbs CJ, Wilson, Brennan and Dawson JJ explained in Coulton v Holcombe (1986) 162 CLR 1 at 7-8. … Ordinarily, the public interest in the finality of litigation would be undermined by allowing a new point to be argued on appeal that the party had not put below, and this is so even if it concerns only a question of law on uncontested facts that would not have changed the conduct of the trial. An appellate court will only permit such a new point to be raised if the interests of justice so require: Coulton 162 CLR at 8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J with whom the rest of the Court agreed: see too Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ.

…

20    Ordinarily, an explanation is required for the making of an amendment … on an appeal: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 at 215 [103], 217 [111], [112] per Gummow, Hayne, Crennan, Kiefel and Bell JJ: Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[159] per Gilmour, Perram and Beach JJ. The mere fact that new counsel has thought of a new point is insufficient. … Specifically in relation to migration cases, where an adverse decision may have various serious consequences for an appellant, the Court may grant leave to raise such a new point that was not taken below if the point clearly has merit and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. See, for example, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 [48], CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 372 [36] and Fualau v Minister for Home Affairs [2020] FCAFC 11 at [13]-[14].

64    The appellant, who is not legally represented, did not file an outline of submissions for the appeal by the due date (ten business days before the hearing date).

65    However, late on the evening of 18 August 2026 (two days before the appeal hearing), he lodged with the Court a document headed “Grounds of challenge” (the Grounds of Challenge Document). This document, which appears to have been prepared using AI, is typed and seven pages long, with single line spacing. It contains seven grounds of challenge to the Tribunal decision, some of which are broken into sub-grounds. The grounds are directed to the Tribunal’s decision rather than the judgment of the primary judge. As the document was filed after the deadline for submissions, the appellant requires leave to rely on it. Further, as with the notice of appeal, there is an issue whether the grounds raise new points on appeal, for which leave is required. The Minister opposes leave being granted.

Consideration

66    I will first consider the notice of appeal. I will then consider the Grounds of Challenge Document.

Notice of appeal

67    The notice of appeal contains nine grounds. The ninth ground is a general request for review of the decision below. The other eight grounds can be summarised as follows:

(1)    Miscommunication between the appellant and the Tribunal during the Tribunal hearing, which was conducted by telephone.

(2)    Interpretation issues during the Tribunal hearing.

(3)    Stress and anxiety during the Tribunal hearing.

(4)    Confusion between the appellant and the Tribunal during the hearing.

(5)    Eligibility of the sponsor for Centrelink, being a matter raised by the Minister during the Circuit Court hearing.

(6)    Separation (by the appellant being returned to India) would cause financial and mental hardship for the appellant’s family.

(7)    Lack of support for the appellant, and safety concerns, if he were returned to India.

(8)    Separation would be very damaging for the appellant, his partner and the appellant’s step-daughter.

68    Several of these grounds request the Court to listen to the audio recording of the Tribunal hearing. However, the material before the Court does not include an audio recording of the hearing. Further, it does not appear that any recording was in the material before the primary judge. It is for the parties to put before the Court the material that they wish to rely on. Here, the appellant has not done so. Accordingly, I am not in a position to listen to any audio recording of the Tribunal hearing.

69    Based on my comparison of the 15 grounds before the primary judge (summarised at [51] of the Reasons) and the grounds in the notice of appeal, I consider that grounds 1, 2, 3, 4, 5 and 7 raise new points on appeal. I consider that grounds 6 and 8 overlap to some extent with the appellant’s grounds before the primary judge. Therefore, leave is not required in relation to grounds 6 and 8.

70    I will now consider whether leave should be granted for the appellant to rely on grounds 1, 2, 3, 4, 5 and 7. In circumstances where the appellant is unrepresented, I consider that it can be inferred that these points were not raised below because the appellant did not think of them at the time. This provides some explanation for the failure to raise the points in the proceeding below. Given that the Minister has had the notice of appeal for a long time, he has had ample time to prepare submissions in response. I am not satisfied that the Minister would suffer any significant prejudice by a grant of leave. I consider the key issue (for the purposes of deciding whether to grant leave to rely on the new points) to be whether the grounds have sufficient merit to warrant a grant of leave. For the following reasons, I consider that the grounds do not have sufficient merit to justify a grant of leave:

(a)    By ground 1, the appellant contends that there was miscommunication between the appellant and the Tribunal during the telephone hearing. I take this to be an allegation of denial of procedural fairness by the Tribunal. If and to the extent that this ground contains an implicit challenge to the Tribunal’s decision to hold the hearing by telephone, this decision was responsive to the report of Mr Kleynhans (which had been put forward by the appellant). In these circumstances, there is no merit in any such complaint. More generally, there is no evidence to support the contention that there was miscommunication between the appellant and the Tribunal, let alone miscommunication amounting to a denial of procedural fairness. I therefore consider that this ground lacks sufficient merit.

(b)    By ground 2, the appellant contends that he never asked for any interpreter for the Tribunal hearing and that, because of this, he was not able to explain things properly to the Tribunal. Taken in isolation, the ground suggests that the appellant was not provided with an interpreter for the Tribunal hearing. But, as is apparent from ground 3 and para 20 of the Tribunal’s reasons, an interpreter was provided for the appellant at the Tribunal hearing. I am therefore unable to make sense of this ground. I therefore consider that it lacks sufficient merit.

(c)    By ground 3, the appellant contends, in summary, that during the telephone hearing the interpreter told him that the Tribunal was getting upset with the appellant, which lowered his confidence and caused him anxiety and stress; and that this affected his evidence. I take this ground to allege a denial of procedural fairness (albeit not caused by the Tribunal). There is no evidence before the Court to substantiate this ground. For these reasons, the ground lacks sufficient merit.

(d)    By ground 4, the appellant requests the Court to listen to the audio recording of the Tribunal hearing and contends that there was “so much confusion” between him and the Tribunal. This is in substance the same as ground 1. For the same reasons, this ground lacks sufficient merit.

(e)    By ground 5, the appellant contends that during the Circuit Court hearing, the lawyer for the Minister submitted that the appellant’s wife could seek payments from Centrelink if the appellant had to leave Australia and apply for the partner visa overseas. The appellant contends that this is incorrect due to past overpayments. There is no evidence before the Court about these matters. For these reasons, this ground lacks sufficient merit.

(f)    By ground 7, the appellant contends, in summary, that he would lack support, and may not be safe, if he were returned to India. This appears to be a contention that the Tribunal failed to consider claims or representations. However, there is no evidence that the appellant made such claims or representations. Accordingly, this ground lacks sufficient merit.

71    For these reasons, I refuse leave to the appellant to rely on these grounds.

72    I now consider grounds 6 and 8 in the notice of appeal.

73    By ground 6, the appellant contends that separation (by the appellant being returned to India) would be hard financially and mentally for his family. As noted above, the Tribunal did consider (at paras 45-64) the appellant’s contention that health issues affecting both the appellant and his wife (the sponsor) constituted compelling reasons for not applying the relevant criteria. This included consideration of financial hardship issues (eg, at para 61). The appellant is effectively seeking merits review of this aspect of the Tribunal’s reasons. However, that is beyond the scope of the Court’s role in an application for judicial review. For these reasons, this ground is not made out.

74    By ground 8, the appellant contends that separation of the appellant and his family would be very damaging for him, his wife and his step-daughter. As noted above, the Tribunal gave detailed consideration to health issues affecting the appellant and his sponsor at paras 45-64 of its reasons. Again, the appellant is effectively seeking merits review of the Tribunal’s reasoning on this issue. As stated above, this is beyond the scope of the Court’s role on an application for judicial review. For these reasons, this ground is not made out.

75    For these reasons, none of the grounds in the notice of appeal are made out.

Grounds of Challenge Document

76    The following is a summary of the grounds in the Grounds of Challenge Document. (It is necessary to refer to the Sections within the document for the sake of clarity.)

(a)    Section 4 – Ground One – Fatal errors in the procedural chronology.

(i)    Section 4.1 – Impossible and inconsistent dates.

(b)    Section 5 – Ground Two – Failure to assess compelling reasons as a whole.

(i)    Section 5.1 – Unlawful status treated as decisive, not as one factor.

(ii)    Section 5.2 – Relationship length wrongly discounted.

(iii)    Section 5.3 – Genuine relationship reasoning incomplete.

(c)    Section 6 – Ground Three – Unreasonable and unfair treatment of medical / psychological evidence.

(i)    Section 6.1 – Unsupported finding of migration-driven reports.

(ii)    Section 6.2 – Selective use of Mr Kleynhans.

(iii)    Section 6.3 – “Normal hardship” template unlawfully applied.

(iv)    Section 6.4 – Internal inconsistency on suicidality / risk.

(d)    Section 7 – Ground Four – Procedural fairness: sponsor evidence and hearing process.

(i)    Section 7.1 – Sponsor evidence pathway shaped by the Tribunal.

(ii)    Section 7.2 – Medical postponements and the telephone hearing.

(e)    Section 8 – Ground Five – Failure to deal with substantial claims (including the child).

(f)    Section 9 – Ground Six – Credit findings overreached.

(g)    Section 10 – Ground Seven – Relevant / irrelevant considerations and purpose of the waiver.

77    I have compared these grounds with the appellant’s 15 grounds before the primary judge (summarised in the Reasons at [51]). I consider that Sections 6.1 and 8 overlap to some extent with the grounds before the primary judge, but that the other Sections contain new points on appeal for which leave is required.

78    I will now consider whether leave should be granted to rely on the Sections that raise new points. The appellant did not provide a reason why the points were not raised below. Again, some explanation is provided by the fact that the appellant was not legally represented. Given that the document was filed and served only a short time before the hearing, and given the detailed nature of the document, there was in my opinion insufficient time for the Minister to properly consider and respond to the document (despite the fact that the Minister’s lawyer was able to make some brief oral submissions about these points at the hearing before me). Thus, I consider that the Minister would suffer some prejudice if the appellant were permitted to rely on the new points. Again, I consider that the key issue is whether the new points have sufficient merit to justify a grant of leave. While the grounds are articulated in a way that has superficial plausibility, in my opinion they do not have sufficient merit to justify a grant of leave. I therefore refuse leave to rely on the Sections of the Grounds of Challenge Document which raise new points.

79    This leaves Sections 6.1 and 8. The Grounds of Challenge Document was filed out of time. The appellant therefore needs leave to rely on the document. In circumstances where the appellant is not legally represented, these grounds overlap to some extent with the grounds below, and the Minister was able to make oral submissions about these grounds, I grant the appellant leave to rely on the Grounds of Challenge Document insofar as it contains these grounds.

80    By Section 6.1, the appellant contends:

At paragraph 62 the Tribunal found the psychology reports “have been obtained by the parties primarily to assist in a migration outcome.” That is a grave imputation of purpose. On the face of the decision, it rests largely on: (a) the existence of medico-legal reports; (b) limited recorded treatment detail; and (c) some advocacy-tinged comments. Those matters may affect weight. They do not, without more, justify a finding that the reports were procured primarily as migration devices. Such a finding is unreasonable, and it poisoned the Tribunal’s entire approach to the health evidence.

81    Paragraph 62 of the Tribunal’s reasons has been set out above. That paragraph sets out the basis upon which the Tribunal expressed the view that the reports had been obtained primarily to assist in a migration outcome. I consider that that was an available inference for the Tribunal to draw, on the basis of the matters to which it referred. I therefore reject this ground.

82    By Section 8, the appellant submits:

A Tribunal must deal with clearly articulated, substantial claims. My case expressly raised:

•    serious psychological and emotional harm to the sponsor if separated;

•    her depression, addiction history, and problems with her ex-partner;

•    the loss/removal of her daughter [name redacted] and related grief; and

•    my role in the household and as a positive figure in connection with [name redacted]’s best interests (as referred to in psychological material).

The Tribunal used the [name redacted] material largely as a weapon against reliability — focusing on Mr Kleynhans’ mistake about who removed the child, and on an [name redacted] narrative (paragraphs 54-55) — rather than making clear findings on the substance: what the removal meant for the sponsor’s stability, what supports she has, and how forced offshore separation would affect her functioning and any realistic prospect of family recovery.

Even if best interests of the child is not a freestanding visa criterion in the same way as in other contexts, once it is advanced as part of compelling reasons and household hardship, it must be confronted squarely. Tangential credibility commentary is not a substitute for dealing with the claim.

83    As set out above, the Tribunal considered the health issues affecting the appellant and the sponsor in some detail at paras 45-64 of its reasons. In my opinion, the Tribunal adequately dealt with the appellant’s claims and representations in relation to these matters. The findings that the Tribunal made were open to it. I do not accept the submission that the Tribunal used parts of the material as a “weapon against reliability”. I consider that the Tribunal did make clear findings on the substance. For these reasons, this ground is not made out.

Conclusion

84    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore make an order that the appellant pay the Minister’s costs of the appeal. In accordance with usual practice, I will order that these costs be determined on a lump sum basis.

Associate:

Dated:    30 October 2026