Anani v Minister for Immigration

[2014] FCCA 899

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANANI v MINISTER FOR IMMIGRATION [2014] FCCA 899

Catchwords:
MIGRATION – Review of decision of Minister for Immigration – where applicant made second application for exemption to condition 8503 – where delegate found only difference in applications issue of applicant’s father-in-law’s health – whether delegate misinterpreted “compelling circumstances” – whether delegate misapplied law – where applicant provided little evidence about father-in-laws condition – whether delegate required to make inquiries – whether jurisdictional error.

Legislation:  

Migration Act1958 (Cth)
Migration Regulations 1994 (Cth), r.2.05

Babicci v Minister for Immigration, Multicultural & Indigenous Affairs [2005] FCAFC 77

Applicant: SAM ALMOG ANANI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 289 of 2013

Judgment of: Judge Raphael

Hearing date: 22 April 2014

Date of Last Submission: 22 April 2014

Delivered at: Sydney

Delivered on: 22 April 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs assessed in the sum of $3,500.00.

3. The name of the Respondent be amended to ‘Minister for Immigration and Border Protection’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 289 of 2013

SAM ALMOG ANANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. Mr Anani is an Israeli citizen of Lebanese extraction.  He first came to Australia on 3 September 2009 as a tourist.  The tourist visa had attached to it condition 8503.  Condition 8503 is what is described as a “no further stay” condition that is in the following form: 

   “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remainsin Australia.” 

   Although it is intended by that condition that an applicant should not remain in the country after the visa has expired, there are provisions which allow the Minister to consider a request for waiver of that condition. Those circumstances are found in subsection 41(2)(a) of the Migration Act 1958 (Cth) and regulation 2.05(4). That latter regulation is in the following form:

   (4)  For subsection 41(2A) of the Act, the circumstances in which the Minister may waive aconditionof 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 thecondition, 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 thecondition, 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 thecondition, the request is in writing.

2. After Mr Anani arrived in Australia, he made application for a protection visa.  This was permitted under the condition.  His application was unsuccessful.  He applied for review of that decision from the Refugee Review Tribunal but was again unsuccessful.  Notwithstanding this lack of success, Mr Anani does not appear to have been removed from the country, and, during the continuation of his stay here, he met and married his wife, Musnaliah Chouman on 22 June 2012.  Having married Ms Chouman, he made a request for waiver of condition 8503.  If granted, this would enable him to apply for a spouse visa, as Ms Chouman is an Australian citizen.  That application for waiver was considered by a delegate of the Minister and on or around 21 August 2012 the delegate advised Mr Anani that the application had been declined. 

3. On 23 January 2013 a second request to waive condition 8503 was received.  In that request Mr Anani claimed that there would be extreme hardship for him if he was to depart Australia and leave behind his wife, as he claimed that, on her own, she would be unable to meet the financial responsibilities and she would suffer because of his absence from her.  Mr Anani made a further claim that his father-in-law had undergone a heart operation and that his health was critical, and that Mr Anani is supporting the father-in-law.  He made a final claim that his employer, Tempe Tyres, needed his services as a specialist machinist.

4. Because the application that Mr Anani was making was the second application, subparagraph (b) of regulation 2.05(4) came into play.  This is important, because much of Mr Anani’s submissions to this court were based upon his original grounds for seeking the waiver.  In a matter such as this, it is the delegate’s duty to look at the differences rather than to the claims made if those claims are not different from those previously put forward.  In fact, in this case, the delegate gave thorough consideration to all the submissions made by Mr Anani, and came to the conclusion, firstly, that his marriage and subsequent financial responsibilities to his wife, whilst being a major change in his circumstances, were not circumstances outside his control.  Mr Anani’s decision to get married in 2012, whilst understandable, was certainly something that he could have avoided.  It was a decision that he took and was clearly one within his control.  On the other hand, the delegate accepted that the condition of Mr Anani’s father-in-law was a matter beyond his control.  Regrettably, however, Mr Anani did not provide much in the way of detail of his father-in-law’s illness, not even telling the delegate when the operation took place or what the current prognosis was.  An applicant for this type of waiver is as obliged as any other applicant to the Department to establish the grounds upon which he seeks the satisfaction of the Minister, and it is not for the Minister to go seeking particulars in order to make the applicant’s case for him.

5. The delegate considered whether the circumstances that Mr Anani had put forward were both compelling and compassionate.  As the court has indicated, the situation had not much changed since the earlier decision.  The delegate found that the inability of Ms Chouman to meet the financial obligations of the couple’s current residence represented circumstances of a compassionate nature, but did not represent circumstances of a compelling nature.  The delegate came to the same conclusion about the health of Ms Chouman’s father.  It did not consider that the need of the employer, so far as evidence of it was given, constituted a circumstance of a compelling or compassionate nature.  The delegate did acknowledge that the potential separation of family members was a compassionate circumstance but did not believe that the nature of those represented were compelling.  The delegate came to the view that Mr Anani did not meet all the relevant criteria.

6. It is to be remembered that Mr Anani married Ms Chouman before the first waiver claim was made.  So the circumstances of his wife, particularly those suffering from his absence should he be required to leave the country, were exactly the same.  Likewise, the position regarding his employment was no different between the first and second applications.  It would appear that the only difference between them was the circumstance of his father-in-law’s health. 

7. On 18 February 2013 Mr Anani filed an application with this court seeking judicial review of the delegate’s decision.  The delegate’s decision is not one which can receive a merits review from the Migration Review Tribunal.  He had two grounds of application – the first being:

   “The Officer who made the decision acknowledged my marriage to Nadia Chouman, Australian citizen, yet failed to understand the compassionate and compelling circumstances if we are forced to be apart.  On one hand the Officer accepted compassionate circumstances yet on the other hand denied compelling circumstances as a result of his failure to understand the definition of compelling circumstances.”

8. Mr Anani has not enlightened the court as to what he believes is the correct definition of compelling circumstances but Ms Carr in her helpful written submissions refers the court to the decision of the Full Bench of the Federal Court in Babicci v Minister for Immigration, Multicultural & Indigenous Affairs [2005] FCAFC 77. The Full Court held at [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…”

   And at [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 [the relevant regulation] should be waived.”

9. It is true that the delegate in the decision record does not explain in any length what he considers compelling circumstances to be, but for the court to enter into a debate about this matter would seem to it to be applying a merits review test rather than a test as to the legality of the decision.  Provided that the delegate had before him sufficient evidence upon which to judge what might or might not constitute compelling circumstances, there would not appear to be any jurisdictional error raised unless, of course, the court was persuaded that no reasonable decision-maker could make such a decision in all the circumstances.  That is not the case here.  What Mr Anani may have failed to appreciate is that compassionate and compelling are not the same, and that they must be considered separately.

10. The second ground of application is:

    “The Officer of the Department misapplied the law and misinterpreted the law.”

    In his oral submissions to me, Mr Anani said that the delegate could not recognise the difference between the first application and the second application.  I do not think this is correct.  I think that the delegate attempted to look at the situation as required by law to see whether or not the two applications were substantially different.  The fact is that the only real difference between the two applications was that of Mr Chouman’s health.  But the delegate went further than this and considered all of Mr Anani’s claims.  Mr Anani told the court that the delegate did not differentiate between the humane aspect and the compelling circumstance but this is exactly what he did. 

11. Mr Anani told the court that his wife would suffer a serious shock if he left but this is a piece of evidence that the court is unable to take into account.  Mr Anani also complained that the delegate did not make inquiries about his father-in-law’s condition but the law is now clear on matters such as this, there is no obligation upon the a delegate to make such inquiries;  the obligation lies upon the applicant to satisfy the delegate and provide the necessary evidence so to do.

12. It follows from the above that the court does not believe that Mr Anani has shown that the delegate fell into jurisdictional error in the manner in which he reached his decision.  For that reason, the application must be dismissed and Mr Anani must pay the respondent’s costs which I assess in the sum of $3,500.00.  The name of the respondent should be amended to read Minister for Immigration and Border Protection.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 May 2014