Ali v Minister for Immigration

[2013] FCCA 1702

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION [2013] FCCA 1702

Catchwords:
MIGRATION – Tourist visa – no further stay condition – application for waiver of condition.

Legislation:

Migration Act 1958, ss.41, 474

Migration Regulations 1994, reg.2.05

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: FELIX IMRAN ALI

Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 2858 of 2012

Judgment of: Judge Cameron

Hearing date: 6 September 2013

Date of Last Submission: 6 September 2013

Delivered at: Sydney

Delivered on: 6 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The name of the respondent be amended in the Court’s record to the ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application be dismissed.

3. The applicant pay the respondent’s costs fixed in the amount of $3,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2858 of 2012

FELIX IMRAN ALI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Fiji, arrived in Australia on 21 October 2011 as the holder of a three month tourist visa with condition 8503 (No Further Stay) imposed on it. 

2. On 19 January 2012 the applicant lodged an application for a protection visa with the then Department of Immigration and Citizenship (“Department”) alleging that he feared harm from his family in Fiji because of his marriage to his wife in Australia.  On 23 March 2012 the applicant’s application for a protection visa was refused.  He subsequently lodged an application for review with the Refugee Review Tribunal which was unsuccessful.

3. On 28 September 2012 the applicant lodged an application with the Department requesting a waiver of the no further stay condition imposed on his tourist visa.  That request was refused on 23 October 2012.  On 24 October 2012 the applicant lodged a second request seeking a waiver of condition 8503.  On 23 November 2012 a delegate of the respondent (“Minister”) refused the second request.  The applicant has applied to this Court for judicial review of that decision.

4. In these judicial review proceedings, the Court cannot hear the applicant’s request for a waiver of the visa condition. Its task is to determine whether the delegate’s decision was affected by jurisdictional error as that is the only basis upon which it can be satisfied: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Section 41 of the Act allows the Minister to make certain visas subject to particular conditions. It also provides that the Minister may waive one of the visa conditions found in that section. Section 41 relevantly provides:

   41         Conditions on visas

   …

   (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).

2. Regulation 2.05 of the Migration Regulations 1994 (“Regulations”) prescribes the circumstances in which the Minister may waive the condition found in s.41(2)(a). It relevantly provides:

   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; …

Background facts

1. On 19 October 2011 the applicant was granted a conditional three month tourist visa.  A case note made by a departmental officer at the time of the grant of the visa indicated that the applicant’s purpose in travelling to Australia was to attend his wedding.  The departmental officer noted that the applicant was counselled about his visa validity period, the no further stay condition on his visa and the fact that he would not be able to extend his stay while in Australia.  The officer noted that the applicant understood the conditions imposed on his visa.

2. In his initial request for a waiver of condition 8503, the applicant claimed that he was married and wished to remain in Australia with his wife and that he had some problems returning to Fiji.  In his second request, the subject of these proceedings, the applicant claimed that he did not wish to be separated from his wife and that they were not in a good state of mind.  He said that his wife was receiving counselling due to anxiety about his possible departure.  The applicant also said that his wife was receiving fertility treatment in an endeavour to fall pregnant and that therefore they needed to remain together.  In support of his request, the applicant provided the following documents:

   a)a statutory declaration from his wife concerning their relationship;

   b)a discharge referral from Liverpool Hospital showing that his wife had attended the hospital on 7 November 2012 because of unexplained chest pains, was kept overnight and discharged the following day;

   c)a letter dated 9 November 2012 from Dr Gordon Harris stating that the applicant’s wife was depressed, anxious, stressed, had panic attacks due to the applicant’s ongoing visa issues and that due to her mental state it was important that she not be separated from the applicant.  Dr Harris stated that due to the applicant’s wife’s poor health, she could not live for a prolonged period in rural Fiji, whence the applicant came, as the medical facilities there were poor; and

   d)a report dated 12 November 2012 from Dr Kerry Watson, a psychologist, which stated that the applicant’s wife had psychological and debilitating physical symptoms which were directly attributable to the applicant’s visa status.

3. On 23 November 2012 the delegate refused to waive the no further stay condition because he found that the applicant’s circumstances did not meet the requirements for its waiver.  In reaching that decision, the delegate:

   a)noted that the applicant’s second request for a waiver of condition 8503 was substantially different from his first request because he had provided new and different information regarding his wife’s health. The delegate further noted that reg.2.05(4) of the Regulations required that since the grant of the applicant’s visa, compelling and compassionate circumstances over which he had no control had developed which resulted in a major change to his circumstances;

   b)accepted that the applicant’s marriage had occurred after his visa had been granted.  However, the delegate found that the applicant had travelled to Australia for his wedding and had been fully aware of his visa’s validity period and the no further stay condition imposed on it. The delegate therefore found that the applicant’s marriage was not a circumstance which had been beyond his control;

   c)accepted that the applicant’s wife was anxious about his impending departure but found that the applicant was aware before he travelled to Australia that his immigration status did not allow him to stay in Australia indefinitely.  The delegate found that, in those circumstances, the applicant’s and his wife’s anxiety at their possible separation was not unanticipated; and

   d)found that the applicant and his wife’s fertility treatment was a personal decision within the applicant’s control.

4. The delegate’s decision was based on a recommendation made by an officer in the Minister’s department.  Relevantly, the officer noted that in relation to medical conditions of close family members, policy required that she be satisfied that an applicant’s family member required care which could only be provided by the applicant. Whilst accepting that the applicant’s wife might have been anxious about his impending departure, the officer found that medical evidence did not confirm that her condition required full-time care or that the applicant’s departure would place her health and well-being in jeopardy.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The decision maker in his decision of 23/11/2012 failed to independently assess my claim to be at risk of harm in Fiji in considering whether compelling and compassionate circumstances had developed since the grant of the visa as required under regulation 2.05(4) of the Migration Regulations 1994.

   2.The Delegate failed to contact the applicant’s wife’s doctors to confirm the severity of her condition and yet failed to independently assess the wife’s medical condition based on expert medical opinion and not as he claimed in court book page33 stating that “I have considered the information provided in relation to Mr Ali’s wife’s depression and anxiety and while that Ms Begum may be anxious about his impending departure, medical evidence does not confirm that Ms Begum’s condition requires ongoing full-time care etc.”  Such comment is in itself an error of law as it does not come from a qualified person yet the decision maker failed to confirm his comment as he did not speak with the doctors or obtained an independent advice as to the severity of the matter.

   3.The decision maker made comment as a non qualified person on the condition suffered and misunderstood to interpret the compelling and compassionate circumstances and misapplied the law.

2. Additionally, at the hearing of this application the applicant explained why he felt he could not return to Fiji, based on the mistreatment he had previously suffered at the hands of his family there.  He also referred to his wife’s condition.

Ground 1

1. If the delegate failed to consider a matter which he was obliged to consider, he would have failed to exercise properly the power provided by s.41(2A).

2. The matter which the applicant alleged should have been considered was his claim to be at risk of harm in Fiji but no such claim was made in the waiver request lodged on 24 October 2012. Although the applicant did state in his original waiver request lodged on 28 September 2012 that he had “some problems in getting back to Fiji”, the effect of reg.2.05(4) is that the delegate who decided the second waiver request was only to be concerned with matters which had not already been raised in the first request. Consequently, as the applicant did not base his second request for a waiver of the visa condition on a claim of risk of harm in Fiji, the fact that the delegate did not consider such a claim did not constitute error.

Grounds 2 and 3

1. The second and third grounds of the amended application may be dealt with together as both concern the officer’s consideration of the medical evidence which the applicant had submitted in support of his second waiver request.  It is convenient to address the third allegation first.  That allegation implied that only a medically qualified person could decide whether the evidence which the applicant had submitted satisfied the test which would enliven the Minister’s discretion to waive the visa condition.  That is not so.  Importantly, the officer did not question the opinions expressed in relation to the health of the applicant’s wife and thus did not set herself up as having an expertise she was unlikely to have had.  Rather, she acknowledged those opinions but did not accept that they dealt with matters which were beyond the applicant’s control or were unanticipated, conclusions which reflected the relevant test.  Those were factual conclusions open to the officer and ones which did not purport to rely on an expertise which she did not have.

2. The second ground of the application also challenged the officer’s factual conclusions concerning the circumstances arising out of the health of the applicant’s wife on the basis that the officer was not medically qualified.  However, for the reasons already given, the officer did not need such a qualification to make the factual finding she expressed.  In those circumstances, she had no obligation to make her own enquiries of medical experts, including the applicant’s, in order to make an adequately informed recommendation on the request.

Other matters

1. Finally, the matters which the applicant raised at the hearing went to whether the delegate should have waived the visa condition, not to whether that decision was affected by jurisdictional error.  In effect, the applicant invited the Court to replace the delegate’s decision with one that was more favourable to him.  As the Minister pointed out in his address, that course is not open in proceedings for judicial review.  Since those submissions were directed to the merits of the applicant’s request for a waiver of the visa condition, rather than to whether the decision was affected by jurisdictional error, they do not support a finding that it was. 

Conclusion

1. Jurisdictional error on the part of the delegate has not been demonstrated.

2. Consequently, the application should be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  25 October 2013