Case: Boakye-Danquah v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 438 (2002) 116 FCR 557
Outcome: distinguished
The Tribunal then turned its attention to the question of compassionate and compelling circumstances, for the purpose of determining whether reg 1.15A(2A) of the Migration Regulations was applicable. At [74], it referred to Boakye-Danquah v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 438 (2002) 116 FCR 557. In that case, the Court was dealing with an earlier version of item 820.211 in Sch 2 to the Migration Regulations , in which there was a requirement to satisfy several criteria found in Sch 3, 'unless the Minister is satisfied that there are compelling reasons for not applying those criteria.' Relying on an explanatory memorandum issued by the Minister at the time when this provision had been inserted into the Migration Regulations , which described the provision as a 'waiver provision', Wilcox J held at [33] that it was clear that the 'compelling circumstances' criterion was intended to be satisfied at the time of application for a visa, not at the time of decision, because item 820.211 in its entirety was required to be satisfied at the time of application. Discussing the effect of this case at [76] of its reasons, the Tribunal said: 'The Tribunal notes that the Court in Boakye-Danquah was not concerned about whether compassionate and compelling circumstances applied to justify a waiver of the 12 month cohabitation requirement. However, the Court clearly stated that the relevant criterion in that case was concerned with "the circumstances in which the application is made". The 12 month cohabitation requirement is also clearly concerned with the circumstances in which the application is made. This requirement may only be waived if there are circumstances sufficiently compassionate and compelling which would justify the parties having lodged the visa application before they had lived together in a spousal relationship for a sufficient period to satisfy the definition of spouse under regulation 1.15A. If the Tribunal was to take into account compassionate and compelling circumstances which apply only at the time of the decision it would be, in effect, making a determination in relation a [ sic ] time of application requirement by reference to facts which did not yet exist at the time of application. Such a determination would entirely undermine the two-stage assessment process which underpins the regulations. That is, an assessment of relevant factors which exist at the time of application and a later assessment of factors which exist at the time of decision.' 46 At [77], the Tribunal purported to apply Boakye-Danquah in assessing whether there were compelling and compassionate circumstances justifying what it called 'the waiver of the 12 month cohabitation requirement at the time of application.' It expressed a finding that the only circumstances which could properly be taken into account 'in determining whether to exercise the waiver of the 12 month cohabitation requirement are those circumstances which applied at the time of application.' After referring to other authority, the Tribunal then said at [81]: 'Policy provides that, in assessing whether there are compelling and compassionate reasons, officers are to take into account the circumstances which the Minister considers to be compelling and compassionate which includes, but is not limited to, applicants who have a dependent child of the relationship. The parties should be given the opportunity to present information as to why they consider there are compelling and compassionate reasons to waive the one year pre-existing cohabitation requirement. However, it is the policy intention that an assessment that the parties' relationship is genuine would not, in the absence of a dependent child of the relationship, be sufficiently compelling to justify not applying regulation 1.15A(2)(d) requirements.' 47 At [82], the Tribunal found that there were no dependent children of the relationship, and that there was no evidence that the parties were affected by extreme hardship at the time of application or that they would suffer irreparable prejudice if the 12-month cohabitation period were not waived. It referred to the relationship between Mr Petrou and the two children of his former marriage and to the fact that he had lived away from them for some time. It took the view that Mr Petrou would be able to prepare his children psychologically for his departure from Australia to be with Ms Antipova. The Tribunal found that it was not satisfied that a close relationship existed between Mr Petrou and his children at the time of application and was not satisfied that the relationship amounted to compassionate and compelling circumstances at that time. It was also not satisfied that the current needs of Mr Petrou's children were sufficiently compelling to justify a waiver of the 12-month cohabitation requirement, even if it could properly take those circumstances into account. 48 Three documents filed on behalf of Ms Antipova, and oral submissions of her counsel at the hearing of the proceeding, disclosed a great variety of approaches to the case put on her behalf. Some of the points raised can be dealt with very briefly, whereas others require a more detailed examination. The three documents are the amended application, filed on 8 June 2004, contentions of fact and law, also filed on 8 June 2004, and contentions in response to the respondent's supplementary contentions, filed on 2 May 2005. 103 The Tribunal construed this provision as a 'waiver' provision, and held that it was required to take into account only those circumstances existing at the date of the application for a visa. In doing so, the Tribunal said that it was following Boakye-Danquah . That was a case concerned with criteria for a particular type of visa, found in a schedule to the Migration Regulations , in which the reference to 'compelling reasons' appeared in the very criterion required to be satisfied at the time of application for the visa. That provision referred to compelling reasons for not applying certain otherwise applicable criteria. It is not surprising that Wilcox J in that case construed the relevant provision as requiring the compelling reasons to exist at the time of application for the visa. 104 Regulation 1.15A(2A) of the Migration Regulations is a very different provision. It is found in a separate regulation, providing a definition of the word 'spouse', for a variety of purposes, wherever that word is found in the Migration Regulations . It does not call upon a decision-maker to determine 'whether to exercise the waiver of the 12 month cohabitation requirement', as the Tribunal characterised it at [77] of its reasons. Rather, reg 1.15A(2A) provides that reg 1.15A(2)(d) does not apply if a specified condition is met. That condition is not that the applicant can establish compelling and compassionate reasons for not applying the criteria referred to in reg 1.15A(2)(d), but that the applicant can establish 'compelling and compassionate circumstances for the grant of the visa.' In other words, the Tribunal is not required to determine whether compelling and compassionate circumstances exist for the waiver or non-application of the 12-month requirement, but whether such circumstances exist for the granting of the visa sought. The focus is not on the criteria to be ousted from consideration, but on the end result. The wording of reg 1.15A(2A) suggests strongly that, at whatever stage of whatever decision-making process the question of special circumstances arises, it is to be determined by reference to whatever circumstances exist at the date of decision. It would be a strange result if the circumstances to be considered differed according to whether the application of the definition of 'spouse' was required to be applied at the time of application of the visa, or at the time of decision, or at some other stage, so that different views might be taken as to whether compelling and compassionate circumstances for the grant of the visa existed at different times. The wording of the provision suggests strongly that this is not the intention. 105 Applying this view does nothing to undermine the two-stage assessment process of determining entitlement to the type of visa Ms Antipova sought, as the Tribunal suggested at [76] of its reasons. Even assuming the definition in reg 1.15A of the Migration Regulations to be confined in its application to that type of visa (and subreg (2)(d) in its terms applies to a range of types of visas, including any permanent visa), the two-stage process remains intact. In determining whether the applicant for a visa was the spouse of a nominating person at the date of application for the visa, the decision-maker is required to determine whether, throughout a 12-month period prior to that date, the two persons met the three requirements of reg 1.15A(2)(d), namely mutual commitment, genuine and continuing relationship, and cohabitation. If any of these three requirements should be absent, the decision-maker is then required to consider whether the applicant has established compelling and compassionate reasons for the grant of the visa. If so, reg 1.15A(2)(d) no longer has to be satisfied at the date of application for the visa; it no longer applies. Once understood in this sense, reg 1.15A(2A) can be seen to be compatible with the two-stage process of assessment. On this analysis, there is nothing strange about making a determination about the application of a criterion to be satisfied at the time of application for a visa by reference to facts not in existence at that time, as the Tribunal thought. 107 At [24], North J expressed the view that it was not to be expected that a decision-maker would be required to ignore the current state of affairs, unless the legislation expressly required such an exercise to be undertaken. At [25], his Honour referred to the fact that reg 3A(2) was an ameliorating provision, which suggested that it should be given an expansive, rather than a restrictive, meaning. At [26], his Honour regarded any uncertainty arising from applying the assessment on the facts as they exist at the time of the decision, rather than at the time of the application, as insufficient to outweigh the intended ameliorating purpose of the regulation. His Honour did not refer to Boakye-Danquah . In many respects, the provision with which North J was dealing in Neofotistou was more similar to that with which Wilcox J was dealing in Boakye-Danquah than either is to reg 1.15A(2A) of the Migration Regulations. Despite the fact that North J appears to have been unaware of Boakye-Danquah , I regard Neofotistou as correct, and as supporting the view I take of reg 1.15A(2A). As I have said, Boakye-Danquah is distinguishable, because it dealt with a provision very different from reg 1.15A(2A). 108 The Tribunal appears to have been led into error by its misunderstanding of the principle for which Boakye-Danquah stood as authority, and by its incorrect characterisation of reg 1.15A(2A) of the Migration Regulations, at [76] of the Tribunal's reasons, as permitting waiver of the criteria in reg 1.15A(2)(d) 'if there are circumstances sufficiently compassionate and compelling which would justify the parties having lodged the visa application before they had lived together in a spousal relationship for a sufficient period to satisfy the definition of spouse under regulation 1.15A.' As I have said in [104], reg 1.15A(2A) did not focus on the circumstances attending the making of the application for a visa, but on the circumstances justifying the granting of the visa. Those circumstances are the ones the Tribunal was required to take into account in determining whether the criteria in reg 1.15A(2)(d) was applicable. 109 Such an error is capable of amounting to a jurisdictional error if it affected the exercise of the Tribunal's statutory function. In the present case, the issue of compelling and compassionate circumstances turned on Mr Petrou's re-established relationship with his children from a former union, and on Ms Antipova's emerging relationship with those children. The Tribunal was prepared to take into account the needs of those children in determining whether compelling and compassionate circumstances existed. Having held that it could not take into account the circumstances that existed at the date of decision, the Tribunal nevertheless expressed the view at [82] of its reasons that, even if it could do so, it did not regard the current needs of the children as 'sufficiently compelling to justify a waiver of the 12 month cohabitation requirement'. Despite the incorrect characterisation of the effect of reg 1.15A(2A), it is fair to take this finding to be a finding that there were no compelling and compassionate circumstances, for the purposes of the application of that provision, even if current circumstances were to be considered. The assessment of the circumstances against the standard of 'compelling and compassionate' was a matter for the Tribunal. It does not appear that the Tribunal misunderstood or misapplied the required standard. The result, therefore, is the same as if the Tribunal had not held erroneously that it could not take circumstances at the time of the decision into account. In effect, it did so. Its error did not amount to a jurisdictional error, because it did carry out the task required of it by the legislation. 110 For this reason, the Tribunal's decision cannot be set aside on the basis of its error in construing reg 1.15A(2A) of the Migration Regulations.