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Kaur v Minister for Immigration & Anor [2017] FCCA 964 (27 April 2017)

Last Updated: 16 May 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal erred in its consideration of compelling reasons for waiving criteria in Schedule 3 to the Migration Regulations – application dismissed.


Legislation:
Migration Act 1958 (Cth), ss.5, 359A
Migration Regulations 1994 (Cth), cl.820.21


Cases cited:
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557; [2002] FCA 438
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51
Kaur v Minister for Immigration and Border Protection [2014] FCA 281
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205
CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Singh v Minister for Immigration and Border Protection [2013] FCA 1324
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
SZOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38; [2011] FCA 1462
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32


Applicant:
PARAMJEET KAUR

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
SYG 3146 of 2015

Judgment of:
Judge Barnes

Hearing date:
27 April 2017

Delivered at:
Sydney

Delivered on:
27 April 2017


REPRESENTATION

Applicant:
In Person (by telephone)

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The application be dismissed.
(2) The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3146 of 2015

PARAMJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(revised from transcript)

  1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 23 October 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa.
  2. On 1 May 2014, the Applicant, a citizen of India, applied for a partner visa. The application was refused and the Applicant sought review by the Tribunal.
  3. In response to an invitation of 10 March 2015 the Applicant attended a Tribunal hearing on 28 April 2015.
  4. On 21 July 2015, the Tribunal sent two letters to the Applicant. First it wrote to her under s.359A of the Migration Act 1958 (Cth) (the Act) putting to her the information that prior to the hearing on 28 April 2015 she had submitted a report from Psychology Pathways dated 10 April 2015 in support of her application and that the psychologist who had provided the report had confirmed that the copy provided to the Tribunal (referred to as the altered psychologist’s report) had been altered and was different from the report written by him. The Tribunal explained this was relevant because applicable public interest criterion 4020 (PIC 4020) required there be no evidence the Applicant had given, or caused to be given, to the Minister or an officer of the Tribunal (etc) a bogus document or information that was false or misleading in a material particular and that by providing an altered psychologist’s report it appeared she had submitted a bogus document in support of her application.
  5. The Tribunal explained that a bogus document included a document the Minister reasonably suspected was counterfeit or had been altered by a person who did not have authority to do so and that if it relied on this information in making a decision it may lead to the decision under review being affirmed. The Applicant was invited to comment on or respond to this information in writing by 4 August 2015.
  6. On the same day the Tribunal also invited the Applicant to a further hearing to be conducted on 11 August 2015 (the second hearing). There is no evidence of any written response to the Tribunal’s s.359A letter. The Applicant attended the second hearing on 11 August 2015.
  7. In its reasons for decision the Tribunal recorded that the Applicant’s sponsor did not appear before the Tribunal to give evidence at the first hearing. According to the Applicant he had left their residence, she was unable to contact him and did not know whether the relationship would continue because he had been drinking and had been violent towards her. It also recorded that the sponsor had not attended the second hearing and that the Applicant had claimed that she and the sponsor were still in a relationship, but that he was unable to attend the second hearing as he was working. The Tribunal found that it had no evidence before it as to the current status of the relationship between the Applicant and the sponsor.
  8. The Tribunal considered whether the Applicant met the visa criterion in cl.820.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), in particular whether she met the criteria in Schedule 3 to the Migration Regulations and, if not, whether it was satisfied that there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found that the Applicant did not meet the requirement in cl.3001 in Schedule 3 that the application be lodged within 28 days of the day on which the last substantive visa held by the Applicant ceased. The Applicant’s last substantive visa ceased on 21 September 2011. The visa application was lodged on 1 May 2014.
  9. Hence the Tribunal considered whether it was satisfied that there were compelling reasons for not applying this criterion. Before doing so it referred (at paragraph 14) to the meaning of the concept “compelling reasons”, noting that it was not defined, but that there was authority to the effect that such reasons should be sufficiently convincing and sufficiently powerful to lead to a positive finding in favour of waiver and that compelling reasons for not the applying Schedule 3 criteria “must be reasons which are relevant to the purpose of permitting the person to make an application for a spouse visa in Australia”. It then stated that “[t]he question of whether there are compelling reasons for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of application: Boakye-Danquah v MIMA [2002] FCA 438; (2002) 116 FCR 557 at [39].”
  10. The Tribunal addressed the Applicant’s submissions and evidence in support of her claim that there were compelling reasons for waiving the Schedule 3 criteria. It recorded that she had claimed that she feared for her safety if she were to return to India because of threats she claimed had been made by her first husband’s family. She claimed that following her divorce her in-laws were unhappy and had threatened to kill her if she returned because she had shamed them in society because of her divorce and also because of her relationship with her current sponsor. She claimed that this fear was the reason she had not returned to India after her student visa had expired. She claimed that her former husband’s family in India had committed acts of violence towards her family and that they would find her wherever she was in India.
  11. The Tribunal recorded that the Applicant also claimed that she “suffers” from mental health issues because of violence committed by her first husband, her divorce and her experience in detention.
  12. The Tribunal, which had informed the Applicant in its first hearing invitation that it would be considering whether she had complied with the Schedule 3 requirements and, if not, “whether there are any compelling reasons for not applying these requirements”, considered all the submissions and documentary evidence provided to it by the Applicant (including through her migration agent) in support of her claim there were compelling reasons for waiving the Schedule 3 criteria. Much of this material post-dated the Applicant’s visa application of 1 May 2014, in particular the report by Psychology Pathways (the psychologist’s report) dated 10 April 2015 submitted on 21 April 2015; a written submission of 21 April 2015 from the migration agent headed “Submission of Compelling Reasons to waive Schedule - 3”; translated letters purporting to be from her former father-in-law dating from 2011 to 2015; and translated affidavits and letters purportedly sent to authorities in India (including after the date of the visa application) in relation to alleged threats and violence towards the Applicant’s family.
  13. The Tribunal had regard to the fact that the psychologist’s report of 10 April 2015 had stated that the Applicant “is not functioning normally in relation to depression, anxiety and stress”, recommended ongoing treatment and had concluded that while during an assessment in October 2011 (by another psychologist) the Applicant had been within the “normal” range, her mental health “has deteriorated over time”. The Tribunal also had regard to the fact that it appeared that the Applicant had been advised to take medication for depression, but that there was no medical evidence of any being prescribed. The Tribunal found that given the Applicant’s circumstances “it is understandable she may experience a certain level of stress”, but also that “it is open to her to continue treatment as recommended by her psychologist” and that this “does not give rise to compelling reasons for waiving the Schedule 3 criteria”.
  14. The Tribunal also considered the evidence of threats and acts of violence allegedly made against the Applicant and her family members by her former father-in-law (including a 2015 threat to kill her and entrap her family into lawsuits) as well as translated letters said to have been sent to various officials in India (mostly in 2015) primarily from the Applicant’s mother, as well as (post-application) correspondence of August 2014 and February 2015 purporting to be from the Applicant’s former sisterin-law to the Indian authorities making claims of violence against the Applicant’s mother and brother. The Tribunal had regard to the Applicant’s claims that the sister-in-law’s claims to the authorities were malicious and had been instigated by the Applicant’s former fatherinlaw as part of an ongoing campaign against her. The Tribunal observed there was no evidence of any response from the authorities to whom the letters were addressed. It found that it was unable to ascertain whether the letters were actually sent, to determine the veracity of the claims made in them, or to verify whether the threatening letters said to be from the Applicant’s former father-in-law were in fact written by him.
  15. The Tribunal found that “the Applicant’s claims to fear for her safety due to alleged threats from her ex-husband’s family are not a compelling reason for waiving the Schedule 3 criteria.” It was “not satisfied that these threats are genuine or that [the Applicant’s] claims of fearing for her life are credible”. It gave two reasons for this: first the lack of independent corroborating evidence and secondly, as it later explained, the fact that the Applicant had submitted a bogus document (the altered psychologist’s report) in support of her mental health claims which relied on, and was linked to, the alleged threats by her former in-laws.
  16. The Tribunal also considered the written submission of 21 April 2015 from the Applicant’s migration agent, which included a claim that the Applicant feared returning to India because she had been a follower of “Dera Sacha Sauda”. The Tribunal recorded that this claim had been the subject of an unsuccessful protection visa application. It had regard to the fact that the Applicant had not made any oral submission in relation to this matter during the Tribunal hearing. It was “not satisfied she fears for her safety because of this”.
  17. The Tribunal concluded that it was “not satisfied that there are compelling reasons for not applying the Schedule 3 criteria” so that the Applicant did not meet the visa criterion in cl.820.211(2)(d)(ii) in Schedule 2 to the Migration Regulations. It stated that it had considered “all” of the Applicant’s claims and was not satisfied that “individually or taken together the circumstances provide compelling reasons for not applying the Schedule 3 criteria”. The Tribunal also found that there was no information before it to indicate the Applicant met any of the other sub-criteria in cl.820.211 in Schedule 2 to the Regulations.
  18. The Tribunal then addressed the separate issue of whether the Applicant met PIC 4020 in Schedule 4 to the Regulations as required by the time of decision criterion in cl.820.226 in Schedule 2 to the Regulations. It acknowledged the relevant requirements of PIC 4020, including that there be no evidence that the Applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular. It also set out that these requirements could be waived if there were certain compelling or compassionate reasons justifying the granting of the visa. It later explained that these were defined as “compelling circumstances that affect the interests of Australia”, or “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australia permanent resident or an eligible New Zealand citizen” that “justify the granting of the visa” (see PIC 4020(4)).
  19. The Tribunal referred to the definition of “bogus document” in s.5(1) of the Act and the requirements of PIC 4020.
  20. The Tribunal stated that in reviewing the evidence in support of the application it had noticed that the psychologist’s report dated 10 April 2015 contained four or five paragraphs that were “markedly inconsistent” with the rest of the professional report. These paragraphs appeared at the end of the report under the heading “Recommendations” and were said to be written in poor English. The Tribunal found that the grammar and punctuation were of a very poor standard in contrast to the rest of the report. By way of example, Tribunal set out one of these paragraphs (replete with spelling and punctuation errors) which was as follows (errors in original):
  21. The Tribunal recorded that at the first hearing (on 28 April 2015) the Applicant’s migration agent had relied on this report in submissions and had noted that it advised the Applicant not to travel outside Australia or to have a baby due to her mental health issues. The agent had also said that the psychologist had stated that due to the Applicant’s fears “she sometimes wants to kill herself”. However the Tribunal had regard to the fact that this information was contained in the final paragraphs of what it found was an altered report and that the psychologist had advised that these paragraphs were not present in his original report.
  22. The Tribunal referred to the fact that on 21 July 2015 it had invited the Applicant to comment on this information under s.359A of the Act and had also invited her to a second hearing. It recorded that while she did not respond to the invitation to comment, she had attended the second hearing.
  23. The Tribunal explained in its reasons that it had written to the psychologist on 10 July 2015 asking him to review the copy report submitted to it by the Applicant, to advise whether the text under the heading “Recommendations” was written by him and to supply a copy of the report prepared by him. He had replied on 16 July 2015 and had advised that the report submitted by the Applicant had been altered, particularly in relation to the “Recommendations” section. He provided a copy of the report he had written and expressed his deep concern over the matter.
  24. The Tribunal described numerous alterations to the report, including a change in the title (from the original “Brief” Focussed Psychological Report to “Final” Focussed Psychological Report); a change from a single date of assessment on 5 April 2015 referred to in the original report to multiple dates of assessment from 2012 on; a significant difference in the layout in the copy report suggesting it had been retyped; additional dates and spelling errors in the synopsis in the copy report that were not present in the original; handwritten changes to names in the copy that were not present in the original; and the fact that the original report contained only two paragraphs under the heading “Recommendations” whereas the copy report contained six paragraphs, four of which were written in poor English with basic spelling and grammar mistakes.
  25. The Tribunal concluded on the evidence before it that the Applicant had altered the report to include more appointments than the psychologist actually conducted and to include issues under the heading “Recommendations” that the psychologist had not referred to but which the Applicant believed would strengthen her case, including the “advice” that she not travel outside the country “due to her critical situations and her health” (sic).
  26. Relevant to this finding the Tribunal set out in some detail the discussion at the second hearing when it raised this issue with the Applicant for comment. The only evidence of what occurred at either Tribunal hearing is the Tribunal’s account in its reasons for decision. The Applicant had, but did not take, the opportunity to file transcripts of the Tribunal hearings.
  27. The Tribunal recorded that at the second hearing it explained to the Applicant that the psychologist had confirmed that his report had been altered and additional material added to it and that this meant that a bogus document had been submitted. The Tribunal gave the Applicant copies of the two reports to compare and explained the differences to her. She was given the opportunity to comment on or respond to this information.
  28. According to the Tribunal, the Applicant claimed that one of the copies of the report was sent to her by post and one by email, that she did not use her email and that she sent the copy received by post to her agent who sent it to the Tribunal. As to the alterations, she claimed that two or three months before her last appointment of 5 April 2015, she had been to see the psychologist for an 8:30pm appointment and that he had “tried to sexually harass her”. She claimed that when she said “no” the psychologist told her, “you will see what I will do with you” and that now when she tries to contact him he will not talk to her or allow her to book another appointment as she wishes to do and that he does not want to hear anything from her. When the Tribunal asked the Applicant why she would want another appointment, the Applicant said she wanted to ask the psychologist why he had an issue with her. She said he wanted to spoil her whole life.
  29. The Tribunal recorded that it asked the Applicant if she was denying altering the document and she said that she did not know how to and did not have internet access at home so could not have done so. The Tribunal also asked why (on her evidence) she had returned to see the psychologist on 5 April 2015 some two or three weeks after she claimed she was sexually harassed. She said it was because he had all her information and she had already paid him and did not have time to go to another psychologist.
  30. The Applicant acknowledged that she was making a serious allegation. According to the Tribunal it put to her that whenever she was faced with difficulties, she alleged she had been threatened with violence or assaulted or claimed that someone, such as her former agent or the psychologist, had something against her. She replied that some people had a happy life, while a bad life came to her.
  31. The Tribunal recorded that it also asked the Applicant to comment on the poor English in the additional material in the altered psychologist’s report and that she said she that the psychologist had taken other reports she gave him and had added information to that. She told the Tribunal that she had not reported the alleged harassment to police as she wanted to wait until after the Tribunal hearing so that the Tribunal would not think she was making the allegation to further her case. She then said she wanted to ask the Tribunal for extra time to make a report to the police.
  32. The Tribunal recorded that it explained to the Applicant that the bogus document also threw into question the other documentation allegedly written by her family to authorities in India. The Applicant said that if she had wanted to provide false letters from her family she would not have asked them to do it, she would have done it herself.
  33. The Tribunal found, based on the evidence of altered and additional text in the psychologist’s report, the advice from the psychologist that the copy report was materially different from the original and the evidence from the Applicant at the second hearing in response to the adverse information being put to her, that the altered psychologist’s report was a bogus document within s.5(1) of the Act as a document the Minister (or Tribunal) reasonably suspects has been altered by a person who does not have authority to do so. It found that the Applicant had altered the psychologist’s report without authority to do so and that she had therefore given, or caused to be given, a bogus document in evidence to the Tribunal.
  34. The Tribunal did not accept the Applicant’s claims that the psychologist had sexually harassed her and that when she said no to him, he maliciously altered his own report to make it appear that she had done so. It observed that the Applicant herself had provided the altered report in evidence and that its falsity only came to the Tribunal’s attention because her representative relied heavily on the bogus paragraphs in his oral submission.
  35. The Tribunal found the Applicant to be untruthful and unreliable. It was particularly concerned at the lengths to which she was prepared to go to try to strengthen her case for a partner visa, despite the fact that the sponsor did not attend either hearing and she did not satisfy the Schedule 3 criteria.
  36. The Tribunal then considered whether the requirements of PIC 4020 should be waived. It recorded that it had explained this waiver provision to the Applicant and had asked her if she wanted to make any submissions in that respect. She denied she had altered the psychology report or that she had lied to the Tribunal and became upset. She requested an extension of time to file a police complaint in relation to her allegations against the psychologist and said that she also wanted to talk to him to ask him “what his issue with her was”. She claimed she and the sponsor were still in a relationship, but that he was working and could not attend the second Tribunal hearing. She wanted to stay in Australia. She said that no one else would be affected by the Tribunal decision except herself and the sponsor. She claimed that she came to Australia very young, had been married, had been in detention and could not return to India.
  37. The Tribunal was not satisfied that there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justified the grant of a visa. It did not accept that the Applicant’s claims of fearing for her safety due to threats from her former in-laws in India were genuine or credible and reiterated that it had found that she had submitted a bogus document in support of her application.
  38. The Tribunal recorded that after the hearing it had considered the Applicant’s request for time to file a police complaint against the psychologist. It had regard to the fact that it had been several months, at least, since the Applicant had seen the psychologist, that she had taken no action to report his alleged behaviour to the police or to anyone else and that her claims against the psychologist were made only once the Tribunal put to her the adverse information of the altered report. It stated that for these reasons it had written to the Applicant on 13 August 2015 and advised that her request had been considered, but that it had decided not to grant an extension of time as it had been determined that her claims against the psychologist were without merit.
  39. The Tribunal found that the Applicant did not satisfy PIC 4020 as required by the visa criterion in cl.820.226 in Schedule 2 to the Regulations. It affirmed the decision not to grant her the visa.
  40. The Applicant sought review by application filed in this Court on 19 November 2015. She did not file an amended application or written submissions. She did not appear this morning at the time listed for hearing. However, the solicitor for the First Respondent tendered copies of email correspondence with the Applicant from which it is apparent that she contacted the solicitors for the First Respondent this morning and stated that she was unable to attend the hearing because she was unwell. She sent an email to the solicitors for the Respondent to that effect, saying she had fever and a runny nose.
  41. The First Respondent’s solicitor foreshadowed with the Applicant that the Court may seek to speak to her by telephone. I did so and she agreed to the hearing taking place by telephone link with the assistance of an interpreter. That is what occurred.
  42. The Applicant was given, and took, the opportunity to address not only the grounds in the application and the issues raised in her supporting affidavit, but also any other concerns she had with the Tribunal decision and/or procedures.
  43. First, insofar as the Applicant raised her personal circumstances, said she could not return to India and hence that she wanted to be granted the visa, as I endeavoured to explain to her, merits review is not available in proceedings of this nature.
  44. When I asked the Applicant to identify any concerns she had about the Tribunal decision and procedures she claimed that the Tribunal only considered the document from the doctor (which I take to be a reference to the psychologist) and that it had not considered all the information she had provided from India.
  45. This concern was also raised in the assertion in the affidavit accompanying her application that the Tribunal did not consider her “document” according to law. She submitted that the Tribunal had not considered all of the documents that she had provided in support of her application.
  46. Contrary to these assertions, it is apparent from the Tribunal reasons for decision that the Tribunal considered in some detail not only the report from the psychologist but also (particularly in the context of considering the Schedule 3 criteria and whether those criteria ought to be waived) the other material, documents and submissions from the Applicant, in particular in relation to the situation in India.
  47. It has not been established that the Tribunal failed to have regard to evidence or failed to consider any integer of the Applicant’s claims in a manner giving rise to jurisdictional error.
  48. Ground 1 in the application is as follows:
Case officer played a game with me. She doesn’t want to look through the circumstances of my life.
  1. Despite the reference to a case officer, it is apparent that the Applicant intended to refer to the Tribunal. In oral submissions she again suggested that the “case officer” gave “the main importance” to the doctor’s report and not to the documents from India that explained that she could not return there. She suggested that the Tribunal only accepted the doctor’s report and said that all else was not valid. She claimed that she could not go back to India and that the Tribunal did not want to look at the circumstances of her case.
  2. Insofar as the Applicant takes issue with the Tribunal’s conclusions she seeks impermissible merits review. The Tribunal considered the Applicant’s claims about circumstances in India and the evidence she provided. As indicated, there is nothing in the material before the Court to suggest that the Tribunal failed to consider an integer of the Applicant’s claims or an item of cogent evidence in a manner constituting jurisdictional error.
  3. Insofar as there is an assertion from the Applicant that the Tribunal only looked at one issue or gave undue weight to its concerns in relation to the psychologist’s report, that claim is not made out. The criteria for a partner visa are cumulative. While it would have been open to the Tribunal to find that the criteria were not met if one criterion was not satisfied, in fact it considered in detail both the criterion in cl.820.211 in relation to Schedule 3 requirements and the criterion in relation to PIC 4020 in cl.820.226 and the different waiver requirements in relation to each criterion. Its decision was not based solely on the bogus document issue.
  4. It is the case that the findings the Tribunal made in relation to fraudulent alteration of the psychologist’s report had an impact on other aspects of its reasons, but it was reasonably open to the Tribunal to have regard to that factor, together with the other factors that it considered, in the context of its consideration of the issue of waiver of Schedule 3 criterion and in consideration of the genuineness of the Applicant’s claims in relation to threats from and in India.
  5. Insofar as this is a complaint that there was no consideration by the Tribunal of the documents from India, the Tribunal set out in some detail the documents provided by the Applicant in support of her claim that there were compelling reasons to waive the Schedule 3 criteria as well as its findings and the reasons for its findings in relation to these documents, in particular that it was unable to determine the veracity of certain claims or whether threatening letters said to be from her former father-in-law were in fact written by him. The Applicant’s disagreement with the Tribunal findings in this respect is not indicative of jurisdictional error. The Tribunal’s findings were reasonably open to it on the material before it for the reasons which it gave.
  6. It was open to the Tribunal to find that the claims about the Applicant’s fears for her safety were not a compelling reason, in themselves, for waiving the Schedule 3 criteria and also that, considered with all the other claims, they did not provide compelling reasons for waiver. There is nothing in the material before the Court to indicate that the Tribunal acted unreasonably or irrationally in deciding not to waive the Schedule 3 criterion or (as discussed further below) that it failed to have regard to any matters raised by the Applicant.
  7. If this ground is to be seen as a complaint directed to the Tribunal’s consideration of whether the Applicant was in a spousal relationship, the Tribunal had regard to the evidence before it as to the absence of the sponsor from either of the hearings, the evidence the Applicant had given in that respect, and the fact that it had no evidence as to the current status of the relationship.
  8. Insofar as the suggestion that the Tribunal “played a game” with the Applicant may be seen as giving rise to an allegation of apprehended or actual bias, there is nothing in the material before the Court to justify a conclusion of either actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).
  9. Ground 1 is not made out.
  10. Ground 2 is:
I have threaten from Indian people like my father in law and Dera Sacha Sauda followers. I’m but Sikh will kill me if I go back.
  1. As indicated, the Tribunal considered the Applicant’s claims of such threats, but was not satisfied as to the genuineness of the threats from the ex-husband’s family or that the Applicant’s claims of fearing for her life on this basis were credible. It also considered the Dera Sacha Sauda follower claim as set out above, but was not satisfied the Applicant “fears for her safety because of this”.
  2. Insofar as in this ground the Applicant seeks merits review, merits review is not available in this Court. This ground is not made out.
  3. The Applicant claimed in ground 3:
I would like to appil (sic) about 4020 to waive.
  1. This ground takes issue with the Tribunal’s decision not to waive the PIC 4020 criterion. If it is a complaint that the Tribunal failed to consider the Applicant’s claims and evidence about compelling or compassionate circumstances, such claim is not made out. The Tribunal set out, in the detail described above, the Applicant’s claims and evidence and its reasons for not being satisfied that the requirements of PIC 4020(1) should be waived. There is no suggestion that the Applicant raised any other circumstances that were not considered by the Tribunal in this context.
  2. While the Tribunal found that the Applicant had purposely altered the psychologist’s report, even if that were not the case a document would be a bogus document with the s.5 definition if the Tribunal reasonably suspected the document had been altered by a person who did not have authority to do so. The Tribunal considered this issue. It was satisfied that the psychologist’s report had been altered by a person who did not have the authority to do so.
  3. In considering whether to exercise its discretion to waive PIC 4020, the Tribunal had regard to the applicable waiver provision in PIC 4020(4). There is nothing in the material before the Court to indicate that the Tribunal’s exercise of its discretion in that respect in some way involved jurisdictional error. In particular, there is no evidence to suggest that it acted unreasonably or irrationally in deciding not to waive PIC 4020 or that it failed to have regard to matters raised by the Applicant.
  4. Insofar as ground 3 may be seen as taking issue with whether the Applicant was made aware of the Tribunal’s concerns that the copy of the psychologist’s report she provided was a bogus document, such a concern is not made out. The Tribunal put to the Applicant under s.359A of the Act the provision of the report and the fact that the psychologist had confirmed that the copy provided to the Tribunal had been altered and differed from the report he had written. It explained the relevance of this information and gave the Applicant the opportunity to comment in writing.
  5. It is not necessary, for present purposes, to determine the extent to which the s.359A letter had to put the Applicant on notice of the content of the altered report and the precise manner in which it differed from the initial report which the psychologist gave to the Tribunal as “information” within s.359A(1) of the Act, as the Tribunal raised these issues with the Applicant at the second hearing in detail. While there is no express reference in the Tribunal decision to s.359AA of the Act, it can be inferred from the Tribunal’s reasons, including its reference to putting adverse information to the Applicant for comment or response and the manner in which it described what occurred at the second hearing, that the Tribunal was utilising the s.359AA procedure in this respect. In this way it also raised dispositive issues with the Applicant as required under s.360 of the Act, in particular in relation to the bogus document issue.
  6. Ground 3 is not made out.
  7. The solicitor for the First Respondent raised in submissions the issue of whether the Tribunal fell into jurisdictional error in its consideration of whether to waive the Schedule 3 criteria. While at the time of the Tribunal decision, Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557; [2002] FCA 438 (as cited by the Tribunal) obliged it to consider whether there were compelling reasons for not applying the Schedule 3 criteria in relation to circumstances existing at the time of the visa application, the Full Court of the Federal Court has since found that compelling circumstances occurring after the date of the visa application should also be considered (see Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32).
  8. In written submissions the Minister conceded that the Tribunal had in this sense erred in its reliance on Boakye-Danquah but submitted that in its reasons the Tribunal had in fact taken into account circumstances that occurred after the date of the application and considered whether there were compelling circumstances at the time of its decision.
  9. It was also submitted that if the Tribunal had fallen into jurisdictional error in referring to Boakye-Danquah there were two reasons relief should be refused. First, it was submitted that the Tribunal had considered all the circumstances raised by the Applicant, including those that occurred after the date of the application, that there was no suggestion she (or her agent) was told by the Tribunal to rely only on circumstances at the time of via application or that she felt so constrained, and that any technical jurisdictional error had not deprived her of the opportunity to advance her case and have all the circumstances (whenever arising) considered by the Tribunal. On this basis it was contended that any such error was not such as to cause the Applicant any practical or material unfairness, so that she ought not to be granted relief (see Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [35]).
  10. It was also submitted that relief should be refused if there was a jurisdictional error because the Tribunal made a separate independent finding that the Applicant did not meet PIC 4020 as required by the visa criterion in cl.820.226 in Schedule 2 to the Regulations which was based on the circumstances at the time of decision, was unaffected by Waensila and was otherwise free from jurisdictional error or error of law (see VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [23]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [95]- [102] and Singh v Minister for Immigration and Border Protection [2013] FCA 1324 at [27]).
  11. In its hearing invitation of 10 March 2015 the Tribunal had informed the Applicant generally that it would be considering whether she complied with the Schedule 3 criteria and, if not, “whether there are any compelling reasons for not applying the requirements” and had invited her to provide additional relevant material. In response the migration agent and the Applicant raised circumstances including those that occurred after the 1 May 2014 date of application, in particular the Applicant’s present mental state based on an assessment of 5 April 2015 and on-going threats from India. The psychologist’s report recorded that the Applicant’s mental health had deteriorated as at April 2015 and that at that time she was not functioning within the normal range in relation to anxiety and stress. There was no suggestion that this part of the report have been altered. Some of the documents from India also post-dated the application.
  12. It is apparent from the Tribunal reasons for decision that in fact the Tribunal considered all of the issues raised by or on behalf of the Applicant (including circumstances arising after the time of visa application) as potential reasons for waiving the Schedule 3 criterion. There is nothing in the material before the Court to suggest that the Applicant was in any way confined to raising pre-application circumstances or that it was suggested to her by the Tribunal that only circumstances in existence at the time of application would be relevant or considered.
  13. In considering the Applicant’s current mental health the Tribunal had regard to the psychologist’s report dated 10 April 2015 which described the Applicant’s post-application mental condition and deterioration. The Tribunal addressed these current issues. It found that it was understandable that the Applicant may experience a certain level of stress, but that it was open to her to continue recommended treatment. It concluded (on the evidence) that her current mental health did not give rise to compelling reasons for waiving the Schedule 3 criteria. Similarly, the Tribunal considered all of the evidence in relation to threats from the family of the Applicant’s former husband at whatever time they were made, but found that they did not amount to a compelling reason for waiving the Schedule 3 criteria. It also considered the issues raised in the submission from the migration agent including the Applicant’s claimed fear of returning to India as a former follower of the Dera Sacha Sauda.
  14. It is apparent from the Tribunal reasons for decision that despite the reference to Boakye-Danquah in paragraph 14, it in fact considered “all” of the Applicant’s claims about compelling circumstances as it stated at [24]. It was not satisfied that individually or taken together, “the circumstances” provided compelling reasons for not applying the Schedule 3 criteria. Seen in retrospect, in proceeding in this manner it in fact asked the correct question, consistent with the subsequent decision in Waensila and did not fall into error in a way that resulted in it exceeding or failing to exercise its powers or that otherwise gave rise to a jurisdictional error.
  15. If I am wrong and the Tribunal’s reference to the principle in Boakye-Danquah did constitute a jurisdictional error, I would decline to grant relief. I have borne in mind that the discretion to decline to grant relief must be exercised with considerable caution (see Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [95]- [100] and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [55]- [57] and at [80] per Gaudron and Gummow JJ). There was in this case no denial of procedural fairness or practical injustice. The Tribunal considered all the circumstances (whenever arising) raised by the Applicant. This is not a case in which there was an error of the nature considered in Gill which was material to or affected the Tribunal’s adverse conclusions in relation to waiver of the Schedule 3 criteria or otherwise.
  16. In addition, there was a separate independent basis for the Tribunal’s decision based on the provision of a bogus document and the Applicant’s failure to meet the criterion in PIC 4020 as required by cl.820.226 which is “untainted” by jurisdictional error (see SZOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38; [2011] FCA 1462 at [56]). I note in that respect that the waiver provision in relation to PIC 4020 is not the same as the Schedule 3 waiver provision and that it is clear that the Tribunal, correctly, had regard to circumstances at the time of the decision (see Kaur v Minister for Immigration and Border Protection [2014] FCA 281 at [42]). No Waensila issue arises in that context.
  17. Hence even if the Tribunal fell into jurisdictional error in its reference to the principle in Boakye-Danquah in relation to whether there were compelling reasons for not applying the Schedule 3 criteria in the context of considering the criterion in cl.820.211(2)(d) in Schedule 2 to the Migration Regulations, no error of law has been identified (or is apparent) in relation to its findings concerning the separate criterion in cl.820.226 in Schedule 2 to the Regulations.
  18. In these circumstances, it is appropriate to decline to grant relief if there is a Waensila jurisdictional error.
  19. I also raised with the solicitor for the First Respondent the issue of whether the Tribunal’s decision not to grant an extension of time for the Applicant to make a complaint to the police about alleged sexual harassment by the psychologist was legally unreasonable, in the sense of lacking an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18). However, as submitted, the Tribunal’s exercise of discretion was within its area of decisional freedom. The Tribunal provided reasons for refusing the extension of time that were logical and open to it. Legal unreasonableness is not made out.
  20. The application should be dismissed.
  21. The Applicant has been unsuccessful and the Minister seeks costs. The Applicant told the Court that she was not working and asked, rhetorically, how she could pay. However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
  22. While the Applicant was self-represented, there were issues of more complexity in this case than in many such matters. An appropriate and reasonable amount for costs is the sum of $6,000.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 15 May 2017

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