Agha v Minister for Immigration

[2016] FCCA 914

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGHA v MINISTER FOR IMMIGRATION [2016] FCCA 914

Catchwords:
MIGRATION – Review of decision by Minister for Immigration and Border Protection – whether Delegate’s decision affected by jurisdictional error – whether the Delegate considered all claims made by the applicant in support of the request to waive Condition 8503 – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.41, 417, 476
Migration Regulations 1994 (Cth), reg.2.05, Schedule 8 – Condition 8503

Cases Cited:
Verlicia v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1529
Salazar v Ministerfor Immigration and Multicultural Affairs [2001] FCA 899

Applicant: BASMA AGHA

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 2279 of 2014

Judgment of: Judge Emmett

Hearing date: 20 April 2016

Date of Last Submission: 20 April 2016

Delivered at: Sydney

Delivered on: 20 April 2016

REPRESENTATION

The applicant appeared in person with the assistance of an Arabic interpreter.

Solicitor for the Respondent: Mr Andras Markus
(Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2279 of 2014

BASMA AGHA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Respondent, dated 30 July 2014, refusing to waive a mandatory condition of the applicant’s visa.

2. The Court’s jurisdiction to determine this application for judicial review of the Delegate’s decision is to be found in s.476 of the Act.

Background

1. The applicant is a citizen of Lebanon. She came to Australia on 17 November 2012 as the holder of a subclass 679 Sponsored Family Visitor visa.

2. The applicant’s visitor visa was subject to Condition 8503 of Schedule 8 (“Condition 8503”) to the Migration Regulations 1994 (Cth) (“the Regulations”), which provides that 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.

3. On 10 January 2013, the applicant applied for a protection visa. That application was unsuccessful, as was the subsequent application for Ministerial Intervention under s.417 of the Migration Act 1958 (Cth) (“the Act”).

4. On 28 July 2014, the applicant requested the Respondent to exercise his power under s.41(2A) of the Act to waive Condition 8503.

5. On 30 July 2014, a delegate of the Respondent (“the Delegate”) notified the applicant that a decision had been made not to waive Condition 8503.

6. On 14 August 2014, the applicant filed an application in this Court seeking judicial review of the Delegate’s decision.

Legislative framework

1. Section 41 of the Act relevant provides as follows:

   “Conditions on visas

   (1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

   (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…”

   (Emphasis added).

2. The “prescribed circumstances” are set out in reg.2.05(4) of the Regulations, as follows:

   “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.”

   (Emphasis added).

3. The requirements of reg.2.05(4) of the Regulations must be satisfied before the Delegate can consider the exercise of the discretion to waive Condition 8503 (see Verlicia v Minister for Immigration & Multicultural Affairs [2004] FCA 1529 at [7] per Moore J).

Decision of the Delegate

1. The applicant relied on the claims she made in support of her protection visa application lodged on 10 January 2013, as well as additional claims, in support of her request that Condition 8503 be waived. In support of her protection visa application, the applicant claimed that she suffered from depression and would be denied appropriate treatment if she returned to Lebanon. She further claimed that her money would be stolen by her brother in Lebanon, leaving her without any means of support. As referred to above, that application for a protection visa was refused.

2. The applicant also claimed that she has developed a very strong attachment to her family members in Australia, especially her young nieces and nephews, and that she provides ongoing physical and emotional support to them. Furthermore, the applicant claimed that since her arrival in Australia, she has accepted a proposal of marriage and wished to remain in Australia to lodge an application for a partner visa as it was too dangerous to return to Lebanon to make that application.

3. On 30 July 2014, a Minute Submission to the Delegate (“the Minute”) was prepared by an officer of the Respondent, recommending that a waiver not be granted.

4. The Minute referred to the applicant’s claims in support of her protection visa application; her claim that she is emotionally attached to her family in Australia; and, her claim that she has accepted a marriage proposal.

5. It was accepted in the Minute that the lodging of a protection visa application and the acceptable of a marriage proposal were both major changes to the applicant’s circumstances.

6. However, the author of the Minute rejected that the circumstances pertaining to the applicant’s claims were outside her control on the basis that the applicant had made conscious decisions to lodge an application for a protection visa; to provide physical and emotional assistance to her siblings and extended family members; and, to accept a proposal of marriage. 

7. The Minute also addressed whether the circumstances were both compelling and compassionate circumstances. The Minute noted the applicant’s claim that the current violence in and around her home town in Tripoli in Lebanon placed her safety at risk if she had to return to Lebanon to lodge an application for a partner visa. However, the Minute stated that, based on the information and Departmental records that were considered, those events had not resulted in a major change to the applicant’s circumstances. Nor was it accepted that they were compelling and compassionate circumstances such that the applicant was left in a situation where she had little or no alternative but to remain in Australia. 

8. The Minute also noted that the applicant’s claim that she was obliged to remain in Australia to care for her nieces and nephews, whilst compassionate, did not constitute circumstances of a compelling nature.

9. The Minute concluded that the applicant’s circumstances did not meet the requirements for a waiver of Condition 8503. Accordingly, it recommended that the waiver be refused.

10. On 30 July 2014, the Delegate notified the applicant of the Delegate’s decision. The Delegate determined that the applicant’s circumstances did not satisfy the requirements of reg.2.05(4) of the Regulations and, therefore, the Delegate did not waive Condition 8503.

11. The Delegate’s letter to the applicant notifying her of the refusal to waive Condition 8503 summarised the relevant legislation, the applicant’s waiver request and the documents provided in support of that request. The letter then proceeded to provide reasons for the Delegate’s decision, as follows:

    “Reasons

    Regulation 2.05(4) requires that since the grant of your visa, compelling and compassionate circumstances have developed over which you had no control that resulted in a major change to your circumstances.

    Under policy, 'compelling circumstances' are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia.

    In your request you state you are now engaged to be married and wish to remain in Australia and lodge an application for partner migration as it is too dangerous to return to Lebanon due to the ongoing conflict in Northern Lebanon. Under current waiver policy, marriage to (or commencing a de-facto partner relationship with) an Australian citizen or resident would not, normally constitute a situation that would be regarded as being beyond your control.

    I acknowledge your proposal of marriage occurred after your visa grant and arrival in Australia and acknowledge that you do not wish to be separated from your fiancé. I also acknowledge your reluctance to return to Lebanon out of your concern for your safety and fears.

    Recent policy guidance indicates that in relation to the situations of unrest or natural disaster in a person's home country, decision makers should be satisfied that the applicant lives in an area that has been directly affected. Merely coming from an affected country is not, in itself, sufficient for this concession to apply.

    Departmental records confirm you lodged an application for Protection on 10 January 2013. I have reviewed departmental files, including your applications for a protection visa and review with the Refugee Review Tribunal and Ministerial Intervention. You claimed that your safety is in jeopardy if you return to Lebanon as you suffer from depression and have nobody to take care of you and that your health will be neglected by the government and that will lead to harm. You further claimed that the money sent to you by your Australian citizen brother was stolen by your brother in Lebanon leaving you without any income support.

    The application for protection was unsuccessful as was your subsequent application for review with the Refugee Review Tribunal and applications for Ministerial Intervention. Departmental records confirm you have a further application for Ministerial Intervention which is still to be determined.

    In relation to assessing your current claims for protection against regulation 2.05(4) for a request to waive a no further stay condition, I acknowledge that you have concerns should you return to Lebanon due to the ongoing conflict in and around your home in Northern Lebanon, however, based on the information provided and departmental records, I do not accept that these events have resulted in a major change to your circumstances. Nor do I accept that these are compelling and compassionate circumstances, such that you are left in a situation where you have little or no alternative but to remain in Australia.

    I further acknowledge your desire to remain with your siblings and extended family members and acknowledge that you have become emotionally attached to your nieces and nephews. However, based on the information provided, I do not accept that these events have resulted in a major change to your personal circumstances. Nor do I accept that these are compelling and compassionate circumstances.

    For these reasons, I have determined that your circumstances do not meet the requirements to waive the 8503 condition and the condition has not been waived.”

12. The Delegate reviewed the Departmental files, including the applicant’s application for a protection visa lodged on 10 January 2010, the application for review lodged with the Refugee Review Tribunal, as well as the applicant’s request for Ministerial Intervention. The Delegate noted that the applicant claimed that her safety would be jeopardised if she returned to Lebanon because she suffered from depression and had nobody there to take care of her, and further, that her money would be stolen by her brother in Lebanon.

13. The Delegate also referred to the applicant’s concerns about returning to Lebanon due to the ongoing conflict in and around her home in northern Lebanon. However, the Delegate did not accept that those events had resulted in a major change to the applicant’s circumstances. Moreover, the Delegate did not accept that those events were compelling and compassionate circumstances such that the applicant was left in a situation where she had little or no alternative but to remain in Australia.

14. The Delegate’s letter acknowledged the applicant’s desire to remain with her siblings and extended family members and acknowledged her emotional attachment to them. However, the Delegate did not accept that the applicant’s attachment to her family had resulted in a major change to her personal circumstances. Further, the Delegate did not accept that it constituted compelling and compassionate circumstances such that reg.2.05(4) of the Regulations was satisfied.

15. Accordingly, the Delegate determined that the applicant’s circumstances did not enliven the Delegate’s discretion in s.41(2A) of the Act to waive Condition 8503.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. 

2. On 12 November 2014, the applicant attended a directions hearing before me. The applicant confirmed that she wished to continue with her application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was set down for hearing today.

3. At the commencement of today’s hearing, the applicant confirmed that she has not filed any Amended Application, evidence or submissions in support of her application, and that she has no further documents to present to the Court this morning.

4. The applicant confirmed that she relied on the grounds contained in her initiating application filed on 14 August 2014, as follows:

   “1. The Delegate of the Minister ignored my major depression and my circumstances in Lebanon and failed to assess the current situation in Tripoli and the danger and suffering I will face if I am compelled to return.

   2. The Department failed to see that the situation in Lebanon especially in Tripoli is dangerous and such took place after my arrival to Australia.”

5. Because of the technical nature of this matter and the applicant’s statement to the Court that she had not read the respondent’s submissions, I invited the respondent’s solicitor, Mr Markus, to make oral submissions as to why the respondent opposed the relief sought by the applicant. 

6. I then invited the applicant to say whatever she wished in support of each of the grounds and in support of her application generally. The applicant stated that she did not understand. I explained to the applicant that the matters raised were difficult and technical; that she had been provided with the contact details of legal services providers; and, that all the Court could do is invite her to say whatever she wished in support of her application. However, the applicant had nothing relevant to say in support of her application.

Grounds of the applicant’s application

1. Ground 1 asserts that the Delegate ignored the applicant’s major depression and the circumstances in Lebanon. Ground 1 also asserts that the Delegate failed to assess the current situation in Tripoli and the danger and suffering the applicant would face if compelled to return. 

2. Ground 2 asserts that the Delegate failed to see that the situation in Lebanon, particularly in Tripoli, was dangerous and that it had become so after the applicant’s arrival in Australia.

3. In the Delegate’s letter to the applicant dated 30 July 2014, the Delegate referred to the applicant’s depression and the assertion that Tripoli became dangerous after her arrival in Australia. A fair reading of that letter suggests that those matters were relied on by the applicant in relation to her protection visa application. Those matters were ultimately rejected by a different delegate of the Respondent in refusing to grant the applicant a protection visa and by the Refugee Review Tribunal in affirming that decision.

4. The Delegate’s letter also referred to the applicant’s concerns about returning to Lebanon due to ongoing conflict in Lebanon.  However, as mentioned above, the Delegate did not accept that those events had resulted in a major change to the applicant’s circumstances. Moreover, the Delegate did not accept that they were compelling and compassionate circumstances such that the applicant was left in a situation where she had little or no alternative but to remain in Australia.

5. The relevant legislative scheme does not require that written reasons be given for a decision not to waive a visa condition (see Salazar v Ministerfor Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J). However, to the extent that reasons have been given, they can be reviewed for jurisdictional error. Whilst not fulsome, I am satisfied that the Delegate considered the applicant’s request for a waiver; understood the bases of that request; and, made relevant findings in respect of those claims that were open to the Delegate on the evidence and material before the Delegate and for the reasons given.

6. A fair reading of the Delegate’s letter makes clear that the Delegate considered all claims made by the applicant. The letter makes clear that the Delegate specifically referred to the applicant’s claim that there was ongoing conflict in and around the applicant’s home in northern Lebanon. In the circumstances, the applicant’s complaints that the Delegate ignored her claims and failed to see the situation in Lebanon are not made out.

7. In the circumstances, the grounds of the applicant’s application does not disclose jurisdictional error on the part of the Delegate in the consideration of the applicant’s request for a waiver of Condition 8503 and in the Delegate’s refusal to grant that waiver. Moreover, there is no other error capable of amounting to jurisdictional error apparent on the face of the Delegate’s letter.

Conclusion

1. Accordingly, the proceeding before this Court should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 April 2016