Afh17 v Minister for Immigration
[2020] FCCA 3143
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFH17 v MINISTER FOR IMMIGRATION | [2020] FCCA 3143 |
| Catchwords: MIGRATION – Refusal to waive “No Further Stay” condition – decision of a Ministerial delegate – whether the delegate misunderstood the law – whether the delegate overlooked relevant considerations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pts.5, 7, ss.41, 51, 476 Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth) |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Boutros v Minister for Immigration and Border Protection [2019] FCA 851 |
| Applicant: | AFH17 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | PEG 256 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 November 2020 |
| Date of Last Submission: | 18 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms C Taggart |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 256 of 2019
| AFH17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. He arrived in Australia on a student visa in February 2010 (Court Book (“CB”) 4). That visa expired on 2 August 2010 (Affidavit of Sara Anicic affirmed 30 October 2020). The applicant does not appear to have held any substantive visa since that date.
Condition 8534 of Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”) (often referred to as the “No Further Stay” condition) was imposed on the applicant’s student visa. When the applicant was granted the visa (in 2010) Condition 8534 provided:
8534 The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b) a student visa the application for which must be made on form 157P or 157P (Internet); or
(c) a Subclass 497 (Graduate — Skilled) visa; or
(d) a Subclass 580 (Student Guardian) visa;
while the holder remains in Australia.
On 14 June 2019, the applicant asked the then Department of Home Affairs to waive Condition 8534 (CB 2-7) (the “waiver request”).
The applicant’s responses to questions asked in the waiver request were as follows (without alteration):
A. Give details of the major change in your circumstances that has developed since the grant of your visa.
Because both of my Christain belive My relative has been questioned and warned due to her christain belive. I am in strong fear that I may be also get persecuted when I return to China. Moreover, unfortunately I am currently under investigation for abdomiral pain and need treatment in Australia
B. Give reasons why you had no control over these circumstances.
Because the Chinese government is very tough on family church , the government will not give up striking on us. As a normal citizen, I only can avoid the persecution and stay away from China. Though my protection visa was refused by DIBP , AAT. I still dare not go back China.
C. Give details of why your circumstances are compassionate and compelling.
I am scared to be persecuted by Chinese government. If I return to China, I will also get imprisonment very possibly, even though I never do any bad thing. It will be impossible for me to return to get medical treatment as I will have no job and can not survive over there. and also there is no way I can get my medical treatments done in China.
The applicant indicated that he wished to apply for a Medical Treatment Visa (Subclass 602). Attached to that request was a Form 1507 – Evidence of intended medical treatment (includes consultation) (CB 6). The form indicated that the medical condition requiring treatment was “investigation for abdominal pain”. A second section titled “Treatment Information” provided “Persistent Epigastric Pain” and noted that that “MRI” and “Blood” were “normal”. The Form was signed by a gastroenterologist on 20 May 2019.
On 3 July 2019, a delegate of the first respondent (the “Minister”) refused to waive Condition 8534 (CB 9-13).
On 10 July 2019, the applicant filed a judicial review application in this Court. The applicant seeks judicial review of the delegate’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the delegate has fallen into jurisdictional error.
Delegate’s Decision
The delegate began by explaining that the applicant’s circumstances did not meet reg.2.05(4) of the Regulations (CB 11).
Relevantly, the delegate then determined as follows (CB 13):
The circumstances must be compelling and compassionate
The term ‘compelling’ is not defined in the migration legislation. It must be given its ordinary meaning. ‘Compelling’ means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.
‘Compassionate’ circumstances (which are also not defined in the legislation and must be given their ordinary meaning) involve the concept of ‘compassion’ which is a feeling of sorrow or pity for the sufferings or misfortune of others, or sympathy. Compassionate circumstances give rise to these feelings.
The client states that he fears persecution if he returns to China. He states he is a Christian and a relative has been questioned and warned due to her Christina belief. The client also states that although his application for protection was refused, he still dare not go back to China. I acknowledge the client’s fears, however, based on the information provided I do not find there is any specific threat or danger for the client and I do not find the circumstances sufficiently forceful to waive the condition.
The client states that he is under investigation for abdominal pain and has provided a Department of Home Affairs form 1507 which a doctor has completed as “investigation for abdominal pain”. The treatment information on the form also states “persistent epigastric pain, MRI normal, blood normal”. I have considered the information provided, and I am not satisfied that the client’s ongoing medical investigation represent sufficiently forceful circumstances to waive the condition. The client also states that he cannot return to China for medical treatment as he does not have a job and cannot survive there. While I accept that the client will need to find employment upon his return, based on the information provided I am not satisfied that the client will not survive or will have no access to medical treatment. Having considered that the client’s claims in their entirety I do not find the circumstances compelling.
In considering all the information the client has provided to support the request to waive condition 8534, I have assessed these claims against the criteria in Regulation 2.05(4). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations and therefore the condition 8534 has not been waived under sub-section 41(2A) of the Act.
The delegate also determined that the applicant did not meet reg.2.05(5) of the Regulations (CB 12). The delegate also found that the requirements of reg.2.05(5A) were not met. Nor was reg.2.05(6) (CB 11-12).
Having found that regs.2.05(4), 2.05(5), 2.05(5A) and 2.05(6) were not met, the delegate refused the waiver request (CB 13).
Proceedings in this Court
In his application for judicial review dated 10 July 2019, the applicant states (without alteration) as follows under the heading “Final orders sought by applicant/s”:
I disagree with Department’s decision. They did not consider that I have compelling and compassionate grounds to waive of 8534 condition on my initial entry visa.
2. They did not consider the fact of my strong fears to return to my home country to apply for subclass 602. I have provided sufficient information and evidence to support my waiver request, however Department did not give a good consideration of my actual situation was out of my control.
3, Department should waive the 8534 condition and allow me to apply for subclass 602 in Australia
Under the heading “Grounds of application”, the applicant provided three grounds of review as follows (without alteration):
1, I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears to return to my home country to apply for subclass 602.
2, I provided with Department my compelling reasons for my waiver request, however they did not accept it. I am very disappointed that Department 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, Department did not show any concerns to my waiver evidence, I don’t think I have been fairly treated.
The applicant also filed an affidavit sworn 10 July 2019 wherein he states:
I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears to return to my home country to apply for subclass 602.
The applicant was given an opportunity by this Court to file any amended application, supporting affidavits and an outline of submissions. No further materials were filed.
The materials before the Court thus include those described above, a Court Book numbering 13 pages (marked as Exhibit 1), the affidavit of Sara Anicic affirmed 30 October 2020 and an outline of written submissions filed on 30 October 2020.
Before this Court, the applicant appeared without legal representation. He was assisted by a Mandarin interpreter. The Court confirmed that he had received the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns that he had with the delegate’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the delegate’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the delegate’s decision or grant the applicant the visa they seek. Rather, the role of the Court is restricted to determining if the delegate made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he thought the delegate overlooked the fact that the Chinese government persecutes religious disciples in China. Further, he believes the delegate “diminished” the persecution he suffered. He stressed that he has previously been persecuted for this reason and does not want to go back to China.
In effect, the applicant’s oral submissions contend that the delegate failed to consider matters which he says constituted compelling and compassionate circumstances.
The Court will address these submissions further below when addressing the applicant’s grounds of review.
Legislation
As noted, the applicant requested a waiver of a condition imposed on his student visa.
Section 41 of the Act is relevant to whether conditions should be waived and provides:
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the 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; or
…
(2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
…
The use of the word “may” in s.41(2A) of the Act indicates that the power in that subsection is discretionary.
Regulation 2.05 provides the “Conditions applicable to visas”. Relevant here are those sub-regulations that relate to a waiver of a condition as described in s.41(2A) of the Act. The relevant sub-regulations (as at the time the applicant held the student visa) are as follows:
…
(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.
…
(5)For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has, after holding a student visa to which condition 8534 applies, been granted:
(i) a Subclass 497 (Graduate — Skilled) visa; or
(ii) a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with the Subclass 497 (Graduate — Skilled) visa application; and
(b)has not, after holding a student visa to which condition 8534 applies, been granted a protection visa.
(5A) For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has completed the course for which the visa was granted; and
(b)has a genuine intention to apply for a General Skilled Migration visa.
(6) For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.
The Court notes that regs.2.05(5) and 2.05(6) of the Regulations were repealed by the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth) and Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). However, those amendments took force for visa applications made after the commencement date. Accordingly, as the applicant was requesting the waiver of a condition that applied to a visa that he held in 2010, the amendments had no effect in relation to his case.
Consideration
The delegate’s decision is not a primary decision. There is no right of review under pt.5 or pt.7 of the Act for decisions of the sort here. On that basis, this Court does have jurisdiction.
As the applicant has included grounds of review in two different sections in his application for judicial review, the Court will address all arguments by referring to the section under which they appear.
“Final Orders Sought”
Ground 1
The first “ground” in this section provides:
I disagree with Department’s decision. They did not consider that I have compelling and compassionate grounds to waive of 8534 condition on my initial entry visa.
On one view, the applicant is simply disagreeing with the delegate’s decision. Disagreement does not amount to jurisdictional error.
Alternatively, the applicant may be suggesting that the delegate misapplied or misunderstood his “compelling and compassionate grounds”.
Regulation 2.05(4) states:
(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
Here, the delegate correctly stated that the terms “compelling and compassionate” are not defined in the Act or the Regulations.
The delegate’s definition of “compelling” was entirely consistent with the High Court’s statement in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, as follows:
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.
Further, in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 it is explained that, in relation to the meaning of “compelling”:
21. In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion…
…
24. There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.
Further, in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87, Justice Hill refers to a previously unreported decision wherein His Honour stated:
…Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them. Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion.
It is apparent that the delegate did not misunderstand the meaning of “compelling” or “compassionate”.
Within the context of reg.2.05(4), the “state of mind” required of the delegate must be reached by reference to “circumstances” that are “compelling” and “compassionate”.
The “circumstances” that the applicant detailed here were:
a)he is a Christian who fears harm if he returns to China; and
b)he is suffering from abdominal pain which requires further investigation.
In relation to the applicant’s fear of harm as a Christian, the delegate found that, in light of the lack of information that was provided about any specific threat to the applicant, this was not a “compelling” circumstance.
It was entirely reasonable and logical for the delegate to find that the fear as alleged was not “sufficiently forceful” in circumstances where the applicant had not stated there had been any personal threat made against him and he had been refused a protection visa assessed on the basis of the same claim.
In relation to the applicant’s medical treatment, the delegate also found that these circumstances were not compelling. There was minimal information before the delegate in this regard. The delegate was not satisfied (on the information provided) that the applicant could not obtain medical care or would not survive if he returned to China. Again, it was entirely logical and reasonable for the delegate to come to this conclusion. The evidence did not indicate that the applicant’s health was critical in nature. Rather, all results were “normal”.
In circumstances where the delegate was satisfied that the circumstances were not compelling or compassionate, it was unnecessary for the delegate to consider the matters in reg.2.05(4)(a)(i) and (ii): Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [19] (“Boutros”). The delegate’s finding that the “relevant circumstances” were not compelling was sufficient to dispose of the waiver request without any need to consider if the applicant had no control over the circumstances or if they had resulted in a major change to the applicant’s circumstances.
The delegate did not err in finding that there were no compelling circumstances.
Ground 1 is, accordingly, dismissed.
Ground 2
In ground 2, the applicant states:
They did not consider the fact of my strong fears to return to my home country to apply for subclass 602. I have provided sufficient information and evidence to support my waiver request, however Department did not give a good consideration of my actual situation was out of my control.
In oral submissions to this Court, the applicant argued that the delegate did not consider the persecution he claimed to have suffered in China and “diminished” that persecution. In effect, he claims that the delegate did not consider all his circumstances seriously.
The delegate did consider the applicant’s fears in relation to returning to China. The delegate states:
I acknowledge the client’s fears…
Accordingly, there is no basis for the claim the delegate “did not consider” such.
Contrary to the applicant’s statement that he provided sufficient information and evidence, the delegate found that he did not do so. All that the applicant provided in support of the waiver request was the limited information provided in the three responses to the questions asked and a Form 1507.
The information sheet attached to the waiver request form stated:
In addition to completing this form, you should provide:
• a certified copy of the personal particulars page of your passport.
• documentary evidence to support your claims for requesting waiver. This evidence can include medical reports.
Providing as much information as you can to support your request will help to speed up the assessment process
The applicant provided no information in support of his claim to fear harm. Hence, the applicant’s oral submission that the delegate did not consider the materials cannot be made out.
In the absence of any information beyond an assertion in the applicant’s waiver request, it was entirely open to the delegate to find that “the fear of returning to China” was not compelling.
To the extent the applicant’s oral submissions suggest that the delegate should have made inquiries or looked into the applicant’s claims of persecution in closer detail (for example, by looking at country information on religious persecution in China), the Court disagrees.
It was for the applicant to provide the evidence necessary to establish that there were compelling and compassionate circumstances: Abebe v The Commonwealth [1999] HCA 14. There is no duty on the delegate to make enquiries or assist an applicant: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. Further, the delegate was not required to identify or put the applicant on notice of any gaps in his evidence: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123.
The delegate did not “diminish” the applicant’s fear of persecution. The delegate addressed the applicant’s fear of persecution on the basis of the limited materials that were before it and in the context of the particular matter it was required to consider – i.e., whether the circumstances were compelling and compassionate.
Finally, the applicant states that the delegate did not properly consider the fact that “the situation was out of his control”.
This appears to be a reference to reg.2.05(4)(a)(i) of the Regulations.
In order to find that the requirements of reg.2.05(4)(a) of the Regulations had been met the delegate first had to be satisfied that compelling and compassionate circumstances existed. Once the delegate was satisfied that compelling and compassionate circumstances had developed, the delegate then needed to be satisfied that:
a)those compelling and compassionate circumstances were outside of the applicant’s control: the Regulations, reg.2.05(4)(a)(i); and
b)those compelling and compassionate circumstances resulted in a major change to the applicant’s circumstances: the Regulations, reg.2.05(4)(a)(ii).
The requirements are cumulative. The applicant had to satisfy all of them. A failure to satisfy one aspect is dispositive.
In Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 it was stated:
36. Here, reg 2.05(4)(a) provided a precondition for the grant of a waiver, namely that the waiver could only be given if “compelling and compassionate circumstances” had developed. The delegate had the function of assessing the appellant’s proffered reasons, supporting documentation and other relevant material before him and to determine whether they met the conditions for a waiver.
37. The delegate found that, first, compassionate circumstances had developed, secondly, the appellant had had no control over the circumstances in which his brother found himself but, thirdly, the changes to the brother’s circumstances were not “a major change to the [appellant’s] circumstances” within the meaning of reg 2.05(4). That finding was itself dispositive of the application for waiver.
Further, in Boutros, it was stated:
19. First, it is apparent from the structure of reg 2.05(4) and the use of the word “and” after each criterion prescribed by reg 2.05(4) that all of the criteria specified in sub-reg (4) must be met before the Minister (and therefore her or his delegate) has power to waive the condition. The delegate therefore correctly found that he must be satisfied that the appellant’s circumstances meet “all the criteria set out in the Regulations” (emphasis added). In the present case, the delegate was not satisfied that the criterion in reg 2.05(4)(a) (that “compelling … circumstances” had developed) was met nor that either of the specific criteria in reg 2.05(4)(a)(i) and (ii) were met. Any one of these findings would constitute an independent and sufficient ground for upholding the decision...
In order to meet the requirements of reg.2.05(4)(a) of the Regulations the delegate first had to be satisfied that compelling and compassionate circumstances had developed. If the delegate was not satisfied that compelling and compassionate circumstances had developed, it did not need to consider if the “situation” was outside of the applicant’s control and had resulted in a major change to the applicant’s circumstances. As stated in Boutros, one finding (here, that the circumstances were not compassionate or compelling) was sufficient.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 states:
Department should waive the 8534 condition and allow me to apply for subclass 602 in Australia
This ground merely expresses disagreement with the decision. It does not identify any jurisdictional error.
Ground 3 is, accordingly, dismissed.
Grounds of the Application
Ground 1
Ground 1 of the “Grounds” section in the application for judicial review states:
I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears to return to my home country to apply for subclass 602.
This ground identifies no error. It refers to the merits of the delegate’s decision not to grant the waiver request.
As noted, the delegate acknowledged the applicant’s fears. However, those fears were found not to be “compelling” and, as such, did not meet the requirements of reg.2.05(4).
Ground 1 is, accordingly, dismissed.
It is noted that ground 1 is repeated in the applicant’s affidavit. For the same reasons as outlined above, the applicant’s affidavit does not identify any jurisdictional error.
Ground 2
Ground 2 states:
I provided with Department my compelling reasons for my waiver request, however they did not accept it. I am very disappointed that Department ignored the fact that I am unable to return to my home country and I do have medical problem need to be treated here.
Disappointment, like disagreement, does not amount to jurisdictional error.
Further, the delegate did not “ignore” the applicant’s claims that he was unable to return to China and that he had a medical problem and required treatment in Australia. The delegate expressly addressed those claims and ultimately concluded that they were not “compelling circumstances”. For the reasons provided above, there was no error in the delegate’s reasoning in this regard.
Ground 2 is also dismissed.
Ground 3
Ground 3 provides:
Department did not show any concerns to my waiver evidence, I don’t think I have been fairly treated.
It is correct that the delegate did not express any concerns about the genuineness of the applicant’s claimed circumstances. However, that is not sufficient to meet the definition of “compelling”. The evidence was required to be, at least, sufficiently forceful. The fact that the delegate did not reject the evidence does not mean that the circumstances are “compelling”.
The applicant has not been treated unfairly. He was given an opportunity to request a waiver and to present his evidence in support of that request (as was noted in the relevant information sheet). The delegate properly and actively considered that request. The fact that the result was not what the applicant was hoping for does not mean that the applicant was treated unfairly.
Ground 3 is, accordingly, dismissed.
Conclusion
The applicant has failed to identify any jurisdictional error in a decision of a Ministerial delegate dated 3 July 2019. The Court has otherwise reviewed the delegate’s decision and cannot identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 19 November 2020
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