Acy20 v Minister for Immigration

[2020] FCCA 2359

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACY20 v MINISTER FOR IMMIGRATION [2020] FCCA 2359

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister – refusal to waive condition on a visa – interlocutory dismissal of show cause application- no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 41, 338, 474, 476

Migration Regulations 1994 (Cth)

Cases cited:

Babicci v Minister for Immigration (2005) 141 FCR 285

BZZ19 v Minister for Immigration & Anor [2019] FCCA 3302

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: ACY20

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 48 of 2020

Judgment of: Judge Driver

Hearing date: 25 August 2020

Delivered at: Sydney

Delivered on: 25 August 2020

REPRESENTATION

The Applicant appeared by telephone

Solicitors for the Respondent: Ms P Durham of Sparke Helmore by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 48 of 2020

ACY20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of a delegate of the Minister (delegate).  The decision was made on 20 December 2019.  The delegate decided to reject a request for waiver of a no further stay condition on the applicant’s visa.  It appears that the condition attached to the applicant’s former tourist visa, which has expired, but the condition continues. 

2. The applicant has been allocated a pseudonym because he raised protection issues and had previously made a protection visa application.  That earlier protection visa application was dealt with by the Administrative Appeals Tribunal and this Court.[1]

   [1] see BZZ19 v Minister for Immigration & Anor [2019] FCCA 3302

3. The background circumstances relating to this matter and the relevant legislation are otherwise dealt with in the Minister’s submissions filed on 18 August 2020, which I adopt.

4. The applicant, a citizen of China, arrived in Australia on 26 April 2005 as the holder of a tourist (subclass 676) visa, which expired on 5 May 2005.

5. Following the expiry of his visitor visa, the applicant twice applied, in 2005 and 2013, for a protection visa. Both of those applications were refused. The applicant unsuccessfully sought merits review of the second visa refusal in the Tribunal and then judicial review in the Federal Circuit Court.[2]

   [2] BZZ19

6. On 10 December 2019, the applicant lodged an application for waiver of condition 8503.[3]  In his email to the Minister’s Department  the applicant indicated he was seeking the waiver of the condition which applied to his initial entry visa (which was granted, and expired, in 2005).

   [3] Court Book (CB) 2-3

7. The application for the waiver was made on the following bases:[4]

   a)the applicant claimed to be Christian and fear persecution and imprisonment in China as the Chinese government is tough on church members;

   b)he suffered from serious back and shoulder pain, could not walk normally, and wanted to seek treatment in Australia.

   [4] CB 3

8. As noted above, on 20 December 2019, the delegate refused to waive condition 8503.[5]

   [5] CB 9-11

9. Condition 8503 has the effect that the applicant would not be entitled to be granted a substantive visa, other than a protection visa, whilst he remained in Australia. By operation of s.41(2A) of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations), the Minister may waive condition 8503 in the following circumstances (regulation 2.05(4)):

   (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.

The delegate’s decision

1. The delegate accepted that the applicant’s circumstances were compassionate as he feared for his safety if returned to China and was suffering from strong back pain. The delegate noted that she must also consider whether the applicant’s circumstances were “compelling”.[6]

   [6] CB 10

2. Having set out the ordinary meaning of “compelling”, the delegate noted that the circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition. The delegate acknowledged the applicant’s desire to lodge an application for a medical treatment (subclass 602) visa and that he suffered from strong back pain and was unable to walk normally. The delegate found the applicant had not provided any evidence outlining the severity of his condition or a treatment plan.[7]  The delegate was not satisfied that the applicant required treatment or that such treatment could not be done in his home country.[8]

   [7] CB 10

   [8] CB 10-11

3. The delegate acknowledged the applicant’s claim to fear harm from persecution by the Chinese government because he was Christian and may be imprisoned if returned to China. Noting that the applicant had not provided any documentation or evidence to demonstrate a specific threat, the delegate did not consider this claim to be sufficiently forceful to waive condition 8503. The delegate did not find the applicant’s circumstances compelling.[9]

   [9] CB 11

4. The delegate concluded that the circumstances relied upon by the applicant did not meet the criteria in regulation 2.05(4) and therefore refused to waive condition 8503.[10]

   [10] CB 11

The present proceedings

1. These proceedings began with a show cause application filed on 10 January 2020.  The applicant continues to rely upon that application.  There are three numbered paragraphs under the heading “Grounds of Application” and three further paragraphs under the heading, “Final Orders Sought by Applicant.  These are discussed below.

2. The application is supported by a short affidavit filed with it, which I received as a submission.  I have before me as evidence the court book filed on 12 March 2020. 

3. I invited the applicant to tell me at today’s hearing what he thought was wrong with the delegate’s decision.  He initially told me that nothing was wrong with it.  He went on, however, to tell me about his medical condition and his wish for medical treatment.  He accepted that he did not require a waiver on the condition of his former visa in order to obtain treatment, but also agreed with my proposition that the waiver of the condition would extend the time available for him to be treated.  The applicant also referred to his fears of returning to China, and he acknowledged his prior protection visa application.  In my view, the applicant has not raised an arguable case of jurisdictional error by the delegate.

4. It is apparent that the delegate did not consider the applicant’s circumstances as compelling.  The delegate’s conclusion was, in my view, open on the material before her.  The Minister’s submissions deal with the question of this Court’s jurisdiction, and the applicant’s complaints.  I agree with those submissions, and adopt them. 

5. I accept that the Court has jurisdiction to review the delegate’s decision.

6. Section 476 of the Migration Act vests the Federal Circuit Court with the same original jurisdiction in relation to “migration decisions” as the High Court has under s.75(v) of the Constitution. A migration decision is a privative clause decision, a purported privative clause decision or a non-privative clause decision.[11] Relevantly, “privative clause decision” is defined broadly in s.474(2) to be “a decision of an administrative character” that is made, proposed to be made, or required to be made under the Migration Act. Such decisions that are affected by jurisdictional error are reviewable.[12]

   [11] Migration Act, s.5

   [12] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

7. The Federal Circuit Court has no jurisdiction to review a “primary decision” pursuant to s.476(2)(a) of the Migration Act. Relevantly, “primary decision” is defined as a decision that is “reviewable under Part 5” of the Migration Act. This decision was not reviewable under that part of the Migration Act because it did not fall within the list of decisions set out in s.338 of the Migration Act. Thus, the delegate’s decision is not a “primary decision” for the purposes of s.476.

Application to show cause

1. The applicant’s grounds are listed under both the “Final orders sought by applicant” and “Grounds of application” headings of his application as follows (without alteration):

   Final orders ought by applicant

   …

   1. I disagree with Immigration’s decision. They did not consider that I have compelling and compassionate grounds to request for waiver of 8503 condition on my initial entry visa.

   2. Immigration has not well consider the fact that I am suffering from serious medical conditions which happened to me recent years. Immigration also ignored the fact that I have strong fears to return to my home country to apply for subclass 602. My current medical condition is not well and need to be treated.

   3. Immigration should waiver the 8503 condition and allow me to apply for subclass 602 in Australia.

   Grounds of application

   1. I am a Chinese citizen and have a strong reason to request for waiver of 8503 on my visa. I am suffering from various medical conditions which need to receive ongoing and regular medical treatments.

   2. I provided with Department of Home Affairs my compelling reasons for my waiver request, however they did not accept it. I am very disappointed that Department of Home Affairs ignored the fact that I am unable to return to my home country and I do have medical problem need to be treated here.

   3. Immigration ignored the doctor’s supporting evidence which is not fair for me.

2. “Orders” 1-3 merely reassert that the applicant meets the criteria for the waiver of condition 8503 on the bases advanced by him. Those contentions rise no higher than an invitation for the Court to engage in impermissible merits review of the delegate’s decision and fail to raise an arguable case for the relief claimed.[13]

   [13] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

3. Similarly, Grounds 1 and 2 are no more than expressions of disagreement with the delegate’s findings that the applicant’s claims were not compelling. In considering whether the applicant’s circumstances were compelling, the delegate adopted an entirely orthodox definition of compelling circumstances consistent with established authority.[14] The delegate correctly applied the law, considered the circumstances and information provided by the applicant in support of his application, and made findings that were open to her for the reasons given. These grounds also fail to raise any arguable case for the relief claimed.

   [14] See, for example: Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173 at [31]; Babicci v Minister for Immigration (2005) 141 FCR 285 at [21]

4. Ground 3 contends that the delegate failed to consider the applicant’s supporting medical evidence. Contrary to the applicant’s contention, the delegate noted that the applicant had not provided any medical documentation outlining the severity of his condition or a treatment plan.[15] The applicant did not provide any medical evidence for the purposes of the waiver application, nor has he identified the material that was apparently provided but not considered. It was for the applicant to provide sufficient evidence for the delegate to be satisfied that the applicant’s circumstances were sufficiently forceful for the decision-maker to waive the condition. In circumstances where no supporting documents were provided this contention fails to raise any arguable case of error in the delegate’s decision, which otherwise had regard to the evidence that was provided by the applicant.

   [15] CB 10

5. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the delegate.

6. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

8. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 August 2020