Ahmed v Minister for Immigration
[2015] FCCA 1070
•28 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION | [2015] FCCA 1070 |
| Catchwords: MIGRATION – No further stay condition – second request – decision that circumstances were no substantially different at the time of the second request – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.41 |
| Atua v Minister for Immigration [2012] FMCA 301 Verlicia v Minister for Immigration [2004] FCA 1529 |
| Applicant: | AHMED SALAH MOHAMMED SAYED AHMED |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2140 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr M Glavac of Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2140 of 2014
| AHMED SALAH MOHAMMED SAYED AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 30 July 2014. The applicant, Mr Ahmed, seeks review of a decision of the Minister’s Department to refuse a request to waive a condition on his visa. That decision was made on 11 July 2014.
The background facts concerning the matter are set out in the Minister’s written submissions filed on 21 April 2015.
Mr Ahmed, a citizen of Egypt, arrived in Australia on 22 October 2012 on his initial visa, which was granted in October 2011. Condition 8503 – “no further stay”, was imposed on the visa. The initial visa was to expire on 6 July 2014.
On 19 March 2014, Mr Ahmed married Barbara Faccioni, an Australian citizen.[1]
[1] Court Book (CB) 5.
On 1 April 2014, Mr Ahmed lodged an application for a partner visa.[2]
[2] CB 7.
Mr Ahmed subsequently made two requests to the Department to waive condition 8503:
a)the first request was made on 1 May 2014 and refused on 14 May 2014 (first waiver request);[3] and
b)the second request was lodged on 1 July 2014 and refused on 11 July 2014 (second waiver request).[4] The second waiver request was rejected because it was not “substantially different” to the first waiver request and accordingly did not satisfy the requirements of regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations).
[3] CB 1-27 and CB 28-35.
[4] CB 36-41 and CB 42-48.
On 30 July 2014, Mr Ahmed filed the present application for judicial review with respect to the second waiver request.
Relevant statutory framework
The Department's power to impose and/or waive conditions relevant to the grant of a visa are set out in ss.41(2) and 41(2A) of the Migration Act 1958 (Cth) (Migration Act). Those sections relevantly provide:
(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).
For the purposes of waiving a visa condition under s.41(2A) of the Migration Act, regulation 2.05(4) provides that:
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)
Delegate’s decision (second waiver request)
Mr Ahmed’s first waiver request sought to waive condition 8503 because of “severe war in my home country”, “my wife is unwell” and “care of my wife and her mother”.[5]
[5] CB 1.
Two months later, Mr Ahmed filed the second waiver request and sought a waiver of condition 8503 on the grounds that:[6]
a)"My wife is currently in Perth as she is caring for her elderly mother"; and
b)"… Both my wife and I need to be together to support each other and support her mother".
[6] CB 36.
The second waiver request was supported by, amongst other material, a medical certificate dated 16 June 2014 stating that Mr Ahmed’s wife cares for her elderly mother and would benefit from Mr Ahmed’s continuing support (Medical Certificate).[7]
[7] CB 38.
On 11 July 2014, the Minister’s delegate considered Mr Ahmed’s second waiver request and found that it was not substantially different from the first waiver request.[8] As such, the delegate was not satisfied that Mr Ahmed’s met the requirements to waive condition 8503, namely regulation 2.05(4).
[8] CB 41.
The Minister’s submissions at [14] set out the essence of the grounds advanced in the show cause application:
a)the Department had medical evidence in support of Mr Ahmed’s request for 8503 waiver yet ignored the compassionate and compelling circumstances of his mother-in-law (Ground 1); and
b)the Department also failed to understand that Mr Ahmed’s wife was unable to assist her mother because of her own illness (Ground 2).
I have before me as evidence the applicant’s affidavit, filed with his show cause application, and the court book filed on 22 September 2014.
Only the Minister made written submissions. I invited oral submissions from Mr Ahmed. Mr Ahmed referred to the difficulties he would experience if required to return to Egypt.[9] I explained to Mr Ahmed that he had made two requests for the condition on his visa to be waived. He is seeking to challenge the second refusal.
[9] CB 16-20.
I agree with the Minister’s interpretation of the Regulations.
The language of regulation 2.05(4) is clear. The applicant must satisfy the criteria in regulation 2.05(4)(a) and regulation 2.05(4)(b). Whilst the power to waive a condition of a visa under s.41(2A) of the Migration Act is discretionary, regulation 2.05(4) prescribes the circumstances which must exist before the discretion to waive the no further stay condition arises.[10] That is, while a discretion to waive exists, such discretion may only be exercised in favour of an applicant if the Minister, or his delegate, is of the view that the circumstances in regulation 2.05(4)(a), (b) and (c) exist.[11] In this matter, the Delegate found that regulation 2.05(4)(b) was not satisfied.
[10] See Verlicia v Minister for Immigration [2004] FCA 1529 at [7].
[11] Atua v Minister for Immigration [2012] FMCA 301 at [30].
I explained to Mr Ahmed that in the case of multiple requests, the Regulations imposed an additional requirement. That is, that the Minister or his delegate must be satisfied that the circumstances relating to the second or multiple requests are different from those considered previously.
Mr Ahmed said that between the first and second decisions he had submitted medical evidence concerning his wife’s condition.[12]
[12] CB 38.
In a report dated 18 June 2014, Dr Richard John of the Kwinana Medical Centre expressed an opinion concerning Mr Ahmed’s wife. Dr John writes that Mr Ahmed’s wife lives in Perth while he lives in Sydney. His wife is unable to move to Sydney because she cares for her mother. She also has her own health difficulties which require regular medical appointments. Dr John writes that Mr Ahmed’s wife would benefit from the support of her husband.
I asked Mr Ahmed why he continues to live in Sydney in these circumstances. He explained that he does not wish to be a financial burden on his family. He explained that his current bridging visa does not permit him to work. His wish is to obtain the right to work so that he can support his family financially. While that may explain Mr Ahmed’s continuing residence in Sydney, there is nothing in the material before me to support a contention that Mr Ahmed’s circumstances had changed significantly between the first and second departmental decisions. In those circumstances, the delegate was effectively bound to reject the second request. Certainly the delegate’s finding was open to him on the material before him such that no legal error is apparent.[13] I otherwise agree with the Minister’s submissions.
[13] In the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone; Ex parte Auva'a [2003] FCA 1506 at [8].
Ground 1
Ground 1 is misconceived. The delegate, looking at the first and second waiver requests, concluded that they were not substantially different and therefore that regulation 2.05(4)(b) was not satisfied. As such, the delegate’s discretion to waive condition 8503 was not enlivened because Mr Ahmed must satisfy the criteria in both regulation 2.05(4)(a) and regulation 2.05(4)(b). In those circumstances, the delegate was not required to consider whether “compassionate and compelling circumstances” of Mr Ahmed's mother in law existed and therefore evidence in support of that claim.
The delegate, when considering the second waiver request, noted that it was lodged because Mr Ahmed claimed he needed to be with his wife to support her and her mother (as his wife is currently in Perth caring for her elderly mother)(emphasis added). The delegate also noted that in the first waiver request, the applicant claimed that:
a)he was unable to return to Egypt due to war;
b)he had married an Australian citizen;
c)his wife and mother required care.
Mr Ahmed’s claims as previously raised were considered and refused by the Department. The provision of the Medical Certificate providing that his mother in law required care does not impact upon the delegate’s factual finding that there was no "substantial difference" between that claim and the claim made in the first waiver request. In any event, the delegate expressly referred to the Medical Certificate in his notification to the applicant of refusal to waive the visa condition.[14] Ground 1 is without merit and must fail.
[14] CB 43 at dot point 3.
Ground 2
By Ground 2, Mr Ahmed seeks to raise matters that were not before the Department. The reasons given by Mr Ahmed in support of his second waiver request are reproduced at CB 36. Critically, those reasons do not include that Mr Ahmed’s wife was unable to care for her mother. Indeed, Mr Ahmed described a situation in which his wife was caring for her mother in Perth, and Mr Ahmed and his wife together "support each other and her mother."
The critical and determinative issue in this case is whether the claims made by Mr Ahmed in the second waiver request were substantially different to those made by Mr Ahmed in the first waiver request. Having found they were not, it was not necessary for the delegate to consider whether compelling and compassionate circumstances had developed as provided for by regulation 2.05(4)(a). That this is so is evident from the conjunctive "and" in regulation 2.05(4) which requires all subparagraphs to be met. Ground 2 must fail.
I conclude that Mr Ahmed has not demonstrated an arguable case of jurisdictional error by the Minister’s delegate. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs in accordance with the scale as it applied at the time the application was filed. Mr Ahmed claims impecuniosity but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 April 2015
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