Abbas v Minister for Immigration
[2020] FCCA 1403
•4 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABBAS v MINISTER FOR IMMIGRATION | [2020] FCCA 1403 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of the decision of the Delegate of the Minister for Immigration refusing to waive Condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) – contrary to the Applicant’s submissions the Delegate gave proper, genuine and realistic consideration to the applicant’s claims as made – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41, 338, 347 Migration Regulations 1994 (Cth) |
| Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 Kaur v Minister for Immigration and Citizenship [2011] FCA 969 Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 |
| Applicant: | QAISAR ABBAS |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3378 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 4 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O. Jones of Counsel |
| Solicitors for the Applicant: | Adrian Joel & Co |
| Counsel for the Respondent: | Mr H. Gao |
| Solicitors for the Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court an Amended Application in Court in the form lodged with the Court on 2 March 2020.
The Amended Application is dismissed.
The Applicant is to pay the Respondent’s costs of the proceeding in the sum of $5,000.
The name of the Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 30 June 2020 to file any Notice of appeal from orders 2 and 3 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3378 of 2018
| QAISAR ABBAS |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Pakistan aged 44 years.
By Amended Application filed in Court on 4 March 2020 the Applicant seeks to quash and have re-determined in accordance with law the decision of a Delegate (Delegate) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 7 November 2018 refusing to waive Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations).
Background
The evidence as to the background in this matter is somewhat sparse, but the Applicant last arrived in Australia on 10 March 2011 on a Bridging visa which expired on 11 June 2011 and which was subject to Condition 8503 of the Regulations, which is known as the “no further stay” condition, and by which the Applicant was precluded from applying for another visa except for a Protection visa or a specified temporary visa allowing him to remain in Australia after his Bridging visa expired.
By s.41(1) of the Migration Act 1958 (Cth) (the Act) the Regulations are authorised to provide that visas, or visas of a specified class, are subject to specified conditions. By s.41(2)(a) of the Act the Regulations may specifically provide that a visa is subject to a condition that the holder of that visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a Protection visa or a temporary visa of a specified kind) while he or she remains in Australia. Condition 8503 of the Regulations is a condition such as is envisioned by s.41(2)(a).
Condition 8503 of the Regulations states as follows:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
Section 41(2A) of the Act permits the Minister (or his Delegate) in prescribed circumstances to waive a condition such as Condition 8503 of the Regulations. The prescribed circumstances appear in reg.2.05(4), as follows:
2.05 Conditions applicable to visas
…
(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
Accordingly, to obtain a waiver of Condition 8503 of the Regulations the Applicant was required to establish that “compelling and compassionate circumstances” had occurred over which he had no control and which had resulted in a major change to his personal circumstances.
The Applicant applied to waive Condition 8503 of the Regulations on 27 September 2018 through his solicitor, Mr Adrian Joel (Mr Joel). The waiver was based on the fact that he had married Ms Carolyn McCrae on 2 June 2013 (spouse) whose daughter, Ms Alicia Forbes, had died at the age of 22 years on 14 October 2008 in a car crash, and a previous partner of the spouse had died from prostate cancer in 2009. The spouse suffered from depression and anxiety and it was claimed that the Applicant had “been able to provide a great deal of support for his [spouse], and he gives her strength to be able to carry on”.
Mr Joel, in his letter to the Department of the Minister dated 24 September 2018 at [8], stated as follows:
[8] Should the Applicant be obliged to return Pakistan, Carolyn would be placed in a precarious position. Processing could well take a number of years and she does not have a meaningful alternative family support infrastructure.
Accordingly, the Applicant wanted a waiver of Condition 8503 of the Regulations so that he could lodge an application for a Partner visa onshore and remain permanently in Australia. The waiver application was supported by:
(a) a Statutory Declaration of the Applicant declared on 19 September 2018 in which, amongst other matters, he said that the spouse and he had separated after a year from their marriage, had remained good friends and had re-established contact in the last five to six months, but whilst they visit each other, the spouse remained in Sydney and he remained, apparently at his stated address at New Lambton, which is in the Newcastle area of New South Wales;
(b) a Statutory Declaration of the spouse declared on 19 September 2018;
(c) a medical report from Alpha Medical Centre dated 18 September 2018;
(d) a 3 month Residential Tenancy Agreement commencing 20 September 2018 of a property at Cameron Park;
(e) a letter from the Public Trustee of Queensland concerning the administration of the estate of Ms Alicia Forbes; and
(f) a Certificate of Marriage of the Applicant and the spouse.
Decision of Delegate
The decision of the Delegate refusing to waive Condition 8503 of the Regulations is not a Part 5 – reviewable decision as provided by s.338 of the Act and therefore is not susceptible to any merits review application under s.347. So it was necessary for the Applicant to approach this Court with respect to the decision by way of an application for judicial review for jurisdictional error: see Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (Ahmed) at [11] per Perram J and Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 at [4] per Jagot J.
Further, there was no obligation on the Delegate to provide reasons for her decision: see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J (as he then was); Kaur v Minister for Immigration and Citizenship [2011] FCA 969 at [8] per Reeves J and Ahmed at [11].
Notwithstanding that the Delegate was under no legislative requirement to provide a statement of reasons for her refusal of a waiver of Condition 8503 of the Regulations, she quite properly did so in her Decision Record of 7 November 2018. Jurisdictional error could conceivably be shown to be present in this case if the Delegate were to manifest a legally erroneous view as to what needed to be satisfied with respect to “compelling circumstances” or if she did not meaningfully consider the Applicant’s claims.
I have considered the Decision Record of the Delegate and in my view the Delegate has correctly directed herself in accordance with relevant authorities as to the meaning and sense of the word “compelling”. The meaning given to the word “compelling” by the Delegate accords with the meaning given by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (M64/2015) at 187 – 188 [31] and that of Gageler J at 196 – 197 [64].
At 187 – 188 [31] of M64/2015 their Honours said:
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted)
At 196 – 197 [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted)
In the result the Delegate was not satisfied that the circumstances which had developed and were relied on by the Applicant were compelling for the purposes of reg.2.05(4) of the Regulations and she refused to waive Condition 8503 under s.41(2A) of the Act. She acknowledged that the Applicant’s circumstances were “compassionate” but did not regard them as “compelling”.
Grounds of Attack on Decision of Delegate in this Court
Mr Oliver Jones of Counsel, who appeared at the hearing for the Applicant, relied only on Ground 3 of the Amended Application, which is as follows:
3. The Delegate made a jurisdictional error by failing to engage proper, genuine and realistic consideration with respect to the matter of whether the condition of the wife of the Applicant would deteriorate in the event that she and the Applicant were separated by the absence of the Applicant from Australia.
In my view this Ground for the following reasons is not made out and fails to establish that the decision of the Delegate is affected by jurisdictional error.
In my view the Delegate did give proper, genuine and realistic consideration of a meaningful nature to the matters and circumstances submitted by the Applicant in support of his waiver application, including any effect on the spouse from being separated from the Applicant. The relevant portion of the Delegate’s decision is as follows:
In coming to my determination I have considered the client’s submission on form 1447 as well as the client’s agent’s submission, medical information and statutory declarations which have all been provided in support of this request. I have considered the tragedies which befell the client’s wife prior to his arrival in Australia and acknowledge his desire to remain in Australia in order to provide support. I further acknowledge concerns regarding the client’s wife’s psychological wellbeing if he were to return to Pakistan. The client has provided a medical report from Dr Simone Dombroski of Alpha Medical Centre dated 18 September 2018 which confirms the client’s wife’s psychological issues and notes that she has been referred for cognitive behavioural therapy. I further note the client’s wife’s statement that she is “proud to say I am coping and I have a professional job”.
Dr Dombroski also provides information regarding the current medication prescribed to assist the client’s wife to manage her condition. Having considered this information, I am satisfied that the client’s wife has been seeking support to manage her condition and I am satisfied that she has the option to continue to do so in the client’s absence.
I have considered the length and nature of the client’s relationship with his wife. The client and his wife married on 02 June 2013 and after living together for approximately a year they separated. The submissions provided by the client and his wife both note that although they have now re-established contact that they are not living together and only spend around two or three days a week together due to employment obligations. I have considered the claims that the client is his wife’s main support person emotionally and claims that they have a genuine relationship, and that it is their preference not to avoid any period of separation. However, I have considered that the client entered into the relationship which has resulted in marriage knowing that he had no entitlement to remain permanently in Australia and the requirement for him to depart is a predictable outcome of the application of Australian migration law.
I have considered that it is open to the client to consider an offshore permanent visa pathway and that subject to assessment against the relevant criteria, their separation may only be temporary. I have further considered that the client and his wife have the option to communicate via electronic means during any period of separation and whilst I acknowledge that separation may cause a level of distress, I do not find the circumstance sufficiently forceful to waive the condition. Therefore, I am not satisfied the circumstances are compelling.
In short, it will be seen that the Delegate stated that she had considered the evidence provided in support of the waiver request and specifically referred to the issue of the separation of the Applicant and spouse. The Delegate considered the issue of separation together with the other relevant factors but held that the circumstances overall were not compelling. It is true that the Delegate never in her Decision Record used the word “deteriorate” or any synonym, such as “worsening”; however such words and claims of such a type were never in fact utilised or made in the material submitted in support of the waiver request.
The Alpha Medical Centre report was sparse and gave no future prognosis of the spouse’s medical condition at all, let alone any statement of the likely course of her medical condition if the Applicant were to return to Pakistan. In other words, there was no medical evidence that the spouse’s health would “deteriorate” if the Applicant returned to Pakistan.
Otherwise, the material in support of the waiver request in relation to this issue was couched in the most general terms. Paragraphs [6] – [8] of Mr Joel’s letter of 24 September 2018 stated, as follows:
[6] She greatly values the relationship shared with the Applicant who she spends up to 2-3 days a week with, as it helps her deal with the quite terrible issues she has to face. These issues were made worse not only by the sudden death of her daughter but by the sudden death from prostate cancer of her previous husband, Ewen Raymond Johns. They lived together from 1997 – 2009.
[7] The Applicant has been able to provide a great deal of support for his partner, and he gives her strength to be able to carry on.
[8] Should the Applicant be obliged to return Pakistan, Carolyn would be placed in a precarious position. Processing could well take a number of years and she does not have a meaningful alternative family support infrastructure.
In the “no further stay waiver request” form the Applicant had stated verbatim, as follows:
A. Give details of the major change in your circumstances that has developed since the grant of your visa.
I married Carolyn McRae on 2 June 2013. She has experienced great tragedy in that her daughter Alicia was killed in a car crash and former spouse died of prostate cancer. She suffers from depression and
B. Give reasons why you had no control over these circumstances.
has to take medication. My relationship provides support and stability. It would be most difficult for her to deal with the period of separation which might be significant if I was to return to Pakistan.
In his Statutory Declaration the Applicant had stated at [9] and [10] as follows:
[9] Carolyn and I are close and it would be fair to say that I am her main support emotionally and we have a genuine relationship. I think I was supportive even when we were separated as our contact was constant and I know she valued the support I gave her.
[10] I ask that the 8503 be waived on the basis that should I have to reapply for a visa in Pakistan I don’t know how Carolyn will cope. She is being treated for depression. It would be a number of years before I am able to return.
In her Statutory Declaration the spouse had said at [7], [9] and [10] – [11], as follows:
[7] I suffer from depression and I am being treated by Dr. Boroski. I am proud to say that I am coping and I have a responsible job.
[9] Qaisar and I re-established our relationship after about six months. However, I want to emphasise that we remained friends during our separation and we always stayed in contact. For the last six months we have got closer. We do not live together permanently, as I work in Sydney but when I visit I stay with him at his home at 3/173 Kings Road, New Lambton.
[10] I need Qaisar as he provides the emotional and practical support that is the basis of me coping with the depression, which commenced at the time of my daughter’s death and worsened when Ewen died. I have no other support apart from him and it is very important to me. I don’t know how I would be able to cope without knowing I had “family” in the circumstance I have with Qaisar.
[11] If he has to leave for Pakistan he could be gone for one or two years and I don’t think I could manage with that. I am proud of how I am coping now, with his support. I do not drink, I know how to handle my depression, I value my job. I also value my relationship with him, which is all the family I have now.
Recently in Minister for Immigration and Border Protection v Lium [2019] FCA 1850 Nicholas J considered the requirement that an administrative decision-maker give “proper, genuine and realistic consideration” to claims. He stated at [38] – [40] as follows:
[38] The requirement for a decision-maker to give “proper, genuine and realistic consideration” to the issues before it is well established: see for example Minister for Immigration v SZJSS (2010) 243 CLR 164 and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36]. However, there is a need to exercise caution in relation to the use of the expression “proper, genuine and realistic consideration” because there is a danger that it may draw the Court into an impermissible merits review: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32] (“Carrascalao”) and the cases there cited. In Carrascalao, the Full Court said at [35]:
“…the evaluative judgment which the court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process…”
[39] The requirement that the Tribunal engage in an active intellectual process does not impose upon it an obligation to refer to every piece of evidence and every contention in the reasons for decision (Carrascalao [45]). Nor does it require the Tribunal to provide lengthy or detailed reasons. A failure to provide reasons for making a particular finding or arriving at a particular conclusion may sometimes provide a basis for inferring that the decision maker did so without any sufficient reason. But there are many cases in which the brevity of the reasons provided merely reflect the lack of any relevant complexity or difficulty that would, if present, require the provision of more detailed reasons necessary to provide some evident and intelligible justification for the decision.
[40] In considering whether it engaged in an active intellectual process, the reasons of the Tribunal should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ citing Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at [37]. Further, as the Full Court observed in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [59]:
“…A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.”
I further note that because the Delegate was not bound to give reasons, it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate: see M64/2015 at 185 – 186 [25] per French CJ, Bell, Keane and Gordon JJ.
In my view, the portion of the Delegate’s decision reproduced at [20] above establishes that the Delegate did give “proper, genuine and realistic consideration” to the totality of the Applicant’s claims for a waiver, including the possible effects of separation, as those claims were made to the Delegate. In particular, I reject the submission of Mr Jones at [11] of the Applicant’s Written Submissions that jurisdictional error is stablished because “the Delegate has not surmised that the separation could cause the condition of the Applicant to change and worsen”.
In my view, none of the material submitted to the Delegate made any meaningful or probative attempt to gauge or foretell the nature, range and scope of any worsening of the spouse’s condition if there was a separation from the Applicant and the Delegate was under no duty to “surmise” into the future on that issue. The Delegate acknowledged that the Applicant and the spouse, as a married couple, preferred “to avoid any period of separation” and “that separation may cause a level of distress” and thereby, in my view, meaningfully considered and dealt with the Applicant’s claims in this regard.
In my view, this Ground overzealously seeks to scrutinise the Delegate’s decision by asserting an inadequacy which is not there.
Conclusion
In my view, the Applicant has failed to establish that the decision of the Delegate is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 2 June 2020
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