Anani v MIMAC
[2013] FCCA 1140
•26 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANANI v MINISTER FOR IMMIGRATION | [2013] FCCA 1140 |
| Catchwords: MIGRATION – Application to review decision of delegate of the Minister not to waive condition 8503 imposed on the applicant’s visa – whether delegate erred in consideration or application of requirements of reg.2.05(4) of the Migration Regulations – no jurisdictional error. |
| Legislation: Migration Act1958 (Cth) s.41 Migration Regulations 1994 (Cth), reg.2.05 |
| Babicci v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 141 FCR 285; [2005] FCAFC 77 Cheema v Minister for Immigration and Citizenship [2011] FCA 121 Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360 Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590 |
| Applicant: | YEHYA YEHYEL ANANI |
| Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| File Number: | SYG 290 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 18 & 26 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the respondent be amended to read Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 290 of 2013
| YEHYA YEHYEL ANANI |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application seeking judicial review in relation to a decision of a delegate of the Respondent refusing the Applicant’s request to waive condition 8503 which was imposed on a tourist visa granted to the applicant in July 2009. The Applicant arrived in Australia in September 2009.
Condition 8503 prevents an applicant from being granted a substantive visa other than a protection visa while in Australia. It is sometimes referred to as a “no further stay” condition. However it is open to an Applicant to seek waiver of such a condition by a delegate of the Minister.
Section 41 of the Migration Act1958 (Cth) (the Act) permits the imposition of conditions on visas under the Migration Regulations 1994 (Cth) (the Regulations). Section 41(2)(a) provides that the Regulations may provide that a visa is subject to a condition that 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”. Condition 8503 in Schedule 8 to the Regulations is such a condition. Section 41(2A) of the Act provides that the Minister may waive such a condition in prescribed circumstances.
The prescribed circumstances are to be found in reg.2.05(4) of the Regulations which is 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.
These provisions are relevant because any substantive visa application (other than a protection visa application) made by the Applicant in Australia would be invalid because he held a visa subject to condition 8503 if the Minister had not waived that condition.
With that background, it is relevant to consider the circumstances of this case. In this instance the Applicant, who had unsuccessfully applied for a protection visa and ministerial intervention, made a first request to waive condition 8503 in August 2012. Included in the material from the departmental file annexed to the affidavit of Adele Juliet Carr affirmed on 23 April 2013 is a summary of the Applicant’s claims made in connection with that first application. Relevantly the note records that the Applicant claimed that there were circumstances beyond his control as he had married an Australian citizen on 19 July 2012, had “obtained employment with one of the biggest wheel businesses in the world” and was “now one of their most valuable members of staff”. He claimed that not approving his waiver request would “impose significant hardship on his family and on his Australian employer and work colleagues”. That application was refused on 25 September 2012.
The Applicant then made a second request that the Minister waive condition 8503 on 23 January 2013. It is the determination of that request that is the subject of these proceedings. The Applicant completed a waiver request form, a copy of which is annexed to Ms Carr’s affidavit. In that form he provided the following four reasons for requesting a waiver of condition 8503:
1. I am married to Zeinab.
2. My wife was carer for her mother, who suffered serious medical condition. After marriage, my wife stopped receiving carer allowance as she became financially dependent on me.
3. I support my wife financially and she is supporting her mother daily. My mother-in-law needs my wife’s support as she suffers depression and other medical conditions.
4. My departure from Australia will harm my wife and her mother and she cannot go back with me to Israel.
Subsequently, supporting documents were provided to the Department, including a letter of support from the applicant’s wife and a Discharge Referral Note from St George Hospital that recorded the results of a visit by his wife to the emergency department on 2 February 2013. It stated that she had presented with vomiting and severe nausea, had no diarrhoea or abdominal pain and had recently found out she was 6 weeks pregnant. The note recorded test results and a diagnosis of morning sickness. The Applicant’s wife was recommended to take a particular medication, ginger and Vitamin B6 in relation to nausea and vomiting.
On 10 February 2013 a delegate of the Respondent notified the Applicant of the refusal of his request to waive condition 8503. The delegate referred to the fact that it was a second request to waive 8503, set out the claims made in the Applicant’s second waiver request form and noted that after the request was made additional documents were provided indicating that the Applicant’s wife was pregnant. The delegate also referred to the fact that a number of other documents had been provided as part of the request, including a personal statement from the Applicant’s wife.
The delegate also described the basis on which the Applicant had made his first waiver request and observed that the Regulations specified that if the Minister had previously refused to waive condition 8503 he or she must be satisfied that the compelling and compassionate circumstances that had developed over which the Applicant had no control “are substantially different from those considered previously”. Having considered the reasons provided in the first and second requests, the delegate found that he was not satisfied that the circumstances in the second request were substantially different.
The delegate then addressed the requirement that “compelling and compassionate circumstances” had developed over which the Applicant had no control that resulted in a major change to his circumstances. While the delegate acknowledged that the Applicant had married an Australian citizen, he stated that “under current waiver policy marriage to an Australian citizen or resident would not normally constitute a situation that would be regarded as being beyond [the Applicant’s] control”. The delegate also acknowledged the Applicant’s claims that his wife was caring for her mother who suffered from serious medical conditions, that since the marriage his wife’s carer allowance had been discontinued and that he was now financially supporting his wife who provided daily support to her mother. However the delegate found that these circumstances did not represent compelling and compassionate circumstances that were beyond the Applicant’s control.
The delegate acknowledged that the harm to the Applicant’s wife and mother from potential separation from the Applicant if he left Australia constituted “compassionate circumstances”, but found that it did not amount to “compelling circumstances”. This concept was said to be generally taken to refer to circumstances that were “involuntary and characterised by necessity such that the visa holder is faced with a situation in which there was little or no alternative but to seek to remain in Australia.”
The delegate continued:
I acknowledge that [the Applicant’s wife] is in the early stages of pregnancy as the Discharge Referral Note from St George Hospital dated 3 February 2013 was forwarded to this office on 4 February 2013. However, [her] pregnancy does not constitute a circumstance which is beyond [the Applicant’s] control as conceiving a child can be a natural result of a marital relationship and in itself does not constitute compelling circumstances.
The delegate concluded that for these reasons he had determined that the Applicant’s circumstances did not meet the requirements to waive condition 8503.
Also in evidence before the Court is a signed internal Departmental Minute described as a Submission to Delegate addressing the waiver request and containing an assessment of the applicant’s circumstances against reg.2.05(4) of the Regulations. The Minute recommended that condition 8503 not be waived. The delegate signed the Minute and recorded his satisfaction that the Applicant had not provided substantially different claims to those provided in his first waiver request and that while claims in the request were of a compassionate nature they did not constitute circumstances of a compelling nature.
Relevantly, the Minute outlined the grounds for waiver given in each written waiver request, referred to the supporting documents provided and to additional documents indicating that the Applicant’s wife was pregnant and had attended hospital on 2 February 2013. The Minute assessed the Applicant’s circumstances against the elements of reg.2.05(4). It submitted that the circumstances provided in relation to the request were not substantially different to those previously considered. In addressing that issue the Minute described the written reasons given in each request.
The Minute writer accepted that the circumstances in the written request for waiver had occurred since the visa which was subject to condition 8503 was granted. The Minute referred not only to the Applicant’s marriage and his employment circumstances, but also to his financial support for his wife as she no longer received the carer allowance and to the information about her pregnancy (even though it was not included in the written request). The Minute writer accepted that the Applicant’s marriage, employment status, his wife’s pregnancy and his subsequent financial responsibility to her had resulted in a major change to the Applicant’s circumstances. While the Minute writer did accept that the mother-in-law’s claimed medical conditions were beyond the Applicant’s control, the officer expressed the view that the circumstances of marriage, the wife’s pregnancy and seeking employment were not beyond the Applicant’s control. The officer referred to policy in this respect.
The Minute Writer stated that the circumstances relied on were not both compelling and compassionate as required under reg.2.05 as while the claims presented in the request were of a compassionate nature, they were said not to constitute circumstances of a compelling nature.
The Applicant sought review of the delegate’s decision by application filed in this Court on 18 February 2013. That application contains two grounds. The first is that:
The Officer who made the decision is totally wrong and overlooked the compelling circumstances involved. He overlooked the contents of the medical report which clearly states that my wife Zeinab Kazan was admitted to St George Hospital for severe nausea and vomiting and other complexities.
The second ground is: “[t]he Officer misapplied the law as the applicant has compelling circumstances.”
Orders made on the first return date gave the Applicant the opportunity to file an amended application and written submissions in advance of the hearing. He did not do so. However at the hearing the Applicant produced a written document said to be submissions which in fact sought to raise additional grounds not raised in the application. The hearing was adjourned in order to give the Respondent the opportunity to respond to such new issues. The Respondent filed a further outline of submissions addressing the additional issues raised. Today the Applicant responded to the Respondent’s further written submissions with a further document in writing.
Before considering the Applicant’s grounds, I note that it has not been established that there is any obligation under the Act for a delegate to give written reasons for a decision not to waive a visa condition such as condition 8503 (see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [25]–[26] per Allsop J). However, as Smith FM accepted in SZGBR v Minister for Immigration [2005] FMCA 824 at [8] and [12], the Court may have regard to any relevant surrounding circumstances, including a departmental Minute or submission to the delegate to assist in understanding the delegate’s notification letter. However in the absence of an obligation to state full reasons, it may be difficult to draw an inference of error from the absence of discussion or a brief discussion or explanation by the delegate in a notification letter (see SZGBR at [13]–[14]).
It is convenient to consider first the grounds in the original application, albeit there is some overlap between these grounds and the grounds raised in written submissions. The first ground in the application in essence appears to be a contention that the delegate overlooked or failed to have regard to the fact that the Applicant’s wife suffered from medical issues arising from her pregnancy in a manner constituting jurisdictional error. In his submissions and reply the Applicant claimed on a number of occasions that his wife’s pregnancy was “complicated”, that it was different from a normal pregnancy, that it was “complex”, that his wife was bed-ridden, that she continued to suffer anxiety and was disturbed she may lose him.
The Applicant confirmed however that the only material in relation to his wife’s pregnancy that was before the delegate at the time of the waiver decision was the Discharge Referral Note and associated documents from St George Hospital referring to her visit to the Emergency Department on 2 February 2013. Insofar as he now contends that the pregnancy was “complicated” in some other way, such information was not before the delegate. The delegate did not fall into jurisdictional error in failing to consider a claim that was not made. Furthermore, the delegate clearly acknowledged that the Applicant’s wife was in the early stages of pregnancy and referred specifically to the Discharge Referral Note from St George Hospital.
The Applicant also appeared to contend that the documents from St George Hospital themselves evidenced an unusually complicated pregnancy such that it raised issues that had to be specifically addressed by the delegate. There is no support in the material before the Court for such a contention. It has not been established that the delegate failed to have regard to the Applicant’s pregnancy or indeed, if it was necessary to do so, to the Discharge Referral Note from St George Hospital.
Not only did the delegate not overlook such circumstances (even though they were not included in the written request required under reg.2.05(4)(c)) but also the delegate considered whether such circumstances were within reg.2.05(4).
The phrase “compelling and compassionate” has been considered in a number of authorities. In Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590, O’Loughlin J said, relevantly, at [21]:
There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account, except where it is appropriate to have regard to their totality.
In Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570, Kenny J referred to these remarks of O’Loughlin J, accepting that in a general sense this was probably correct. However Kenny J expressed a preference not to put any “gloss, by way of explanation, on the plain words of reg 2.05(4)(a)” and made the point that whether the decision-maker finds that compelling and compassionate circumstances as provided for in reg.2.05(4)(a) exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual Applicant.
In other words, it is for the delegate to form his own view as to whether or not the circumstances relied on by the Applicant are compelling and compassionate. The requirements of reg.2.05 are cumulative, hence even if some of the circumstances are found to be compassionate, that would not suffice if such circumstances are not also compelling circumstances over which the Applicant had no control (see Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [16] per Flick J)
As Smith FM stated in SZGBR at [19], the words “‘compelling and compassionate circumstances’ … confer on a decision maker a broad latitude of understanding and assessment of how [the delegate] identifies and weighs relevant circumstances.” In Babicci v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 141 FCR 285; [2005] FCAFC 77 at [23], the Full Court of the Federal Court considered the concept of “compelling circumstances”, and saw no error in construing that notion:
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.
Their Honours continued (at [24]) that on any view of the meaning of the word “compelling”, the circumstances:
...must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in the [relevant regulation] should be waived.
There is nothing in the material before the court to establish that the delegate overlooked any circumstances relied on by the Applicant or erred in his approach to whether the circumstances, including those involving the Applicant’s wife’s pregnancy, were compelling circumstances. Despite the Applicant’s disagreement with the delegate’s approach, the delegate’s finding that the circumstances were not compelling was open on the material before him. Beyond this, insofar as the Applicant contended that the delegate was “wrong” he seeks impermissible merits review. Ground 1 is not made out.
Nor has it been established that the delegate misapplied the law in relation to compelling circumstances in some unexplained manner. Having regard to the approach in Thongpraphai, Terera, Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360 and Babicci, the delegate’s reference to policy to the effect that compelling circumstances generally referred to circumstances that were involuntary and characterised by necessity such that the visa holder was faced with a situation in which there was little or no alternative but to seek to remain in Australia is not such as to establish a misstatement or misunderstanding of the law for the purposes of reg.2.05(4). In particular, the delegate did not fail to address the question arising under reg.2.05(4) of the Regulations.
Disagreement with the delegate’s conclusion does not establish misapplication of the law. As submitted for the Respondent, the Act (in particular s.41(2A)) and the Regulations (in particular reg.2.05(4)) require a subjective assessment which takes into account all of the circumstances and the delegate’s finding in relation to whether or not the circumstances were compelling was open on the material before the delegate. Ground 2 in the application is not made out.
As indicated, on the first hearing day the Applicant filed in court a document in the form of submissions which in fact raised a number of fresh issues. The first contention was that the delegate’s decision was unreasonable, defective and unjust. First, insofar as in his written submission the Applicant suggested that he was not married at the time of his first waiver request and refusal, he conceded in oral submissions today that he was in fact married at that time.
However the Applicant maintained a contention that it was unreasonable for the delegate to find that while constituting compassionate circumstances the separation from his family did not constitute compelling circumstances. It was also said that it was unreasonable for the delegate to find that conceiving a child could be a natural result of a marital relationship and did not, of itself, constitute compelling circumstances.
The Applicant did not rely on any authorities in relation to the notion of unreasonableness. The Minister acknowledged the relatively recent consideration of that issue in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18 in relation to a Tribunal decision to adjourn a hearing as requested. In Li, Hayne, Keifel and Bell JJ at [76] accepted that unreasonableness “may be applied to a decision which lacks an evident and intelligible justification”. As their Honours stated at [68]:
The legal standard of unreasonableness should not be considered as limited to what is, in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it.
Their Honours recognised that “an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified” (at [68]). However, as was stated by French CJ in Li at [30]:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.
In other words, emphatic disagreement with a judgment reached in the course of a decision and describing it as unreasonable because of such disagreement does not necessarily mean that it is a decision that is affected by jurisdictional error (Li at [30] and see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] per Gleeson CJ and McHugh J).
In this case the Applicant’s contentions amount to an emphatic disagreement with the conclusions of the delegate. However they do not go beyond this to establish unreasonableness constituting jurisdictional error. For the reasons set out above and having regard to the authorities in relation to the concept of compassionate and compelling circumstances, it was open to the delegate to reach the conclusions that he did about whether separation and/or conception constituted compelling circumstances. Notwithstanding the Applicant’s disagreement, it has not been established that there was no evident and intelligible justification for the delegate’s conclusions in relation to the absence of compelling circumstances. Similarly, it was open to the delegate to find that pregnancy was not beyond the applicant’s control in the sense that conceiving a child could be a natural result of a marital relationship. No jurisdictional error is established on either of these bases.
The Applicant also contended that his circumstances and those of his family, in particular his wife, had changed completely since his first waiver application and hence that the delegate’s conclusion that his claims were not substantially different to the claims previously considered was wrong and unjustified.
Insofar as the Respondent submitted that no particulars were given in his written submission, the Applicant did explain his view that his wife’s circumstances had changed completely because she became financially dependent on him, stopped receiving a carer allowance and had a complicated pregnancy. Insofar as those matters were said to be attributable to the marriage this was a circumstance which predated the original waiver application. The delegate regarded conception of a child as a natural result of a marital relationship.
The delegate found that the reasons provided in the second request, that is the written request, were not substantially different to those provided in the first request. The second written request did not include the Applicant’s wife’s pregnancy. However the delegate acknowledged the later evidence in that respect. Given that the delegate’s letter was not a full statement of reasons, one would be slow to draw an inference that the delegate had not taken into account the pregnancy of the Applicant’s wife to which he referred prior to making the finding about the circumstances not being substantially different.
As pointed out by the solicitor for the Minister, the requirements of reg.2.05(4)(b) in relation to whether the circumstances relied on in a waiver request are substantially different from those considered previously involve “a subjective assessment” by the Minister’s delegate. As Emmett J stated in Kishore v Minister for Immigration [2002] FCA 240, 117 FCR 147 at [39], even if “the prerequisite of reg.2.05(4)(a) is… objective …[and] capable of review by the Court” (a matter on which His Honour reached no concluded view):
it is clear that the requirements of par (b) involve a subjective assessment by the Minister or the Minister’s delegate. That indicates that the question of whether or not the Minister is satisfied is a question to be determined by the Minister and is not to be the subject of review by the Court.
In any event, the delegate expressly addressed the Applicant’s wife pregnancy and whether that constituted a circumstance beyond the Applicant’s control that was compassionate and compelling. Even if issue might be taken with the delegate’s failure to refer to the wife’s pregnancy in the context of considering whether circumstances had developed that were substantially different from those considered previously, the delegate considered the other requirements of reg.2.05(4) (all of which had to be satisfied for a waiver) in relation to the pregnancy. I am not satisfied that the Applicant has established jurisdictional error on the basis contended for in relation to the delegate’s consideration of whether his claims were substantially different.
The Applicant also submitted that the delegate had failed to “acknowledge” that his wife was financially dependent on him and that her complicated pregnancy amounted to compelling circumstances. It was claimed that the delegate failed to understand and accept who would look after the Applicant’s wife both emotionally and financially.
Insofar as this is a contention that the delegate overlooked the wife’s pregnancy, as set out above I am not satisfied that such a claim is made out. The delegate considered the wife’s pregnancy and referred to the discharge statement from St George Hospital, but ultimately concluded that this was not a compelling circumstance beyond the Applicant’s control in circumstances where pregnancy could be seen as a natural result of a marital relationship.
Nor has it not been established that the delegate overlooked such evidence as there was in relation to any complication in the wife’s pregnancy, given that the evidence before the delegate related only to her attendance at the emergency department of St George Hospital with what was said to be early morning sickness. Insofar as the Applicant is contending that his wife continues to suffer from anxiety or that subsequent complications of pregnancy have prevented her from being a carer for her mother and led to a need for special care for her this was not information that was put before the delegate. The delegate did not fall into error in failing to have regard to what may have occurred since the decision.
It has not been established that the delegate failed to have regard to the Applicant’s claim in relation to his wife’s need for financial and other support. The delegate acknowledged that the wife’s carer’s allowance had been discontinued and that she was said to be dependent on her husband financially. The Applicant’s disagreement with the delegate’s conclusion in this respect does not establish jurisdictional error.
It also appeared to be contended that the delegate should have inquired into the effect the Applicant’s removal from Australia would have on his wife. However the delegate addressed this claim, accepted that potential separation represented compassionate circumstances, but did not accept that it amounted to compelling circumstances. This is not a situation in which there was any obligation on the delegate to make inquiries as to a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (see also Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1).
The Applicant submitted that the delegate erred in failing to provide a full statement of reasons. No authority was cited in support of this proposition. Salazar and SZGBR are to the contrary. No jurisdictional error is established on this basis.
The Applicant also contended that the delegate had not taken into account all the circumstances in the Court Book. It is not clear what is meant by this contention. In any event, it has not been established that the delegate failed to have regard to any of the bases on which the Applicant sought waiver of condition 8503.
In submissions in reply the Applicant appeared to suggest that having regard to the meaning of “compassionate and compelling circumstances” and the cases considered by Smith FM in SZGBR, his circumstances were compelling and compassionate and that hence the delegate had made a serious error contrary to the supporting probative evidence. However, contrary to the contention that the delegate ignored important information, as discussed above the delegate’s conclusion was open on the material before the delegate for the reasons which he gave.
The Applicant suggested that the submissions of the Minister in these proceedings were unreasonable. This does not establish jurisdictional error on the part of the delegate. Nor, as discussed above, does the Applicant’s contention that there was in fact a significant difference between his first waiver application and his second waiver application based on what he described as the complicated pregnancy of his wife, her admission to St George Hospital and her continued financial dependency.
The Applicant also contended that the delegate ignored a handwritten statement from his wife. The delegate is not obliged to give full reasons. A decision-maker’s failure to refer to every item of evidence does not constitute jurisdictional error. In any event, in the summary of documents provided, the delegate referred to the personal statement of his wife, in which she addressed the emotional and financial consequences of her husband going overseas and found that the consequences of separation constituted compassionate (but not compelling) circumstances. No jurisdictional error is established on this basis.
Insofar as the Applicant contended that the delegate “misunderstood” his wife’s circumstances and the definition of “compelling”, it has not been established that on the material before the delegate he misunderstood or ignored the Applicant’s wife’s circumstances. Nor has it been established that the delegate misunderstood or misapplied the concept of “compelling”.
The Applicant’s contention that the delegate did not “justify the difference between first and second application for waiver” does not establish jurisdictional error. The delegate was not obliged to give full reasons. In any event he addressed this issue in the manner considered above, also finding in particular that the Applicant’s claims were not of a compelling nature.
The Applicant’s contention that his circumstances and those of his family met the requirement of “compelling and compassionate circumstances” seeks impermissible merits review and does not establish that the delegate fell into jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. It is appropriate that he meet the costs of the Respondent. The amount sought by the Minister is less than the amount provided for in the Federal Circuit Rules 2001 (Cth) and is appropriate and reasonable in the circumstances of this case.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 August 2013
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