ANANI v Minister for Immigration

[2013] FCCA 1685

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANANI v MINISTER FOR IMMIGRATION [2013] FCCA 1685

Catchwords:
MIGRATION – Tourist visa – refusal to waive no further stay condition.

Legislation:

Migration Act 1958, s.41

Migration Regulations 1994, reg.2.05

Applicant: OMER ANANI

Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 297 of 2013

Judgment of: Judge Cameron

Hearing date: 3 September 2013

Date of Last Submission: 3 September 2013

Delivered at: Sydney

Delivered on: 3 September 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr J. Smith

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 $6,100.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 297 of 2013

OMER ANANI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Israel, arrived in Australia on 28 October 2009 as the holder of a three month tourist visa with condition 8503 (No Further Stay) attached to it.  On 3 December 2009 the applicant lodged an application for a protection visa with what was then the Department of Immigration and Citizenship (“Department”) and on 30 March 2010 that application was refused.  The applicant subsequently lodged an application for review with the Refugee Review Tribunal and also sought ministerial intervention.  The applicant was unsuccessful in the application for review and in the request for ministerial intervention.

2. On 23 January 2013 the applicant applied to the Department for a waiver of the no further stay condition imposed on his tourist visa.  On 11 February 2013 a delegate of the respondent (“Minister”) refused to waive the condition.  The applicant has applied to this Court for judicial review of that decision.

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

Relevant legislation

1. Section 41 of the Migration Act 1958 (“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; …

   (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 referred to 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;….

Background facts

1. In his request for a waiver of the no further stay condition imposed on his tourist visa the applicant claimed that he was living with one of his brothers and helping to support his brother’s family.  He stated that he was very attached to his brothers, who had arrived in Australia a month before he had.  The applicant stated that it would be difficult for him to return to Israel because of the trouble and depression he had suffered there and that his life would be at risk there.  He stated that he would not be a burden on taxpayers as he had a full-time job.

2. On 11 February 2013 the delegate refused to waive the condition on the basis that whilst the applicant’s circumstances were of a compassionate nature, they did not constitute circumstances of a compelling nature that had resulted in major changes to his circumstances which were outside his control.  The delegate also noted that the applicant’s claims for refugee status had already been assessed by the Department and the Refugee Review Tribunal as not meeting the criteria for a protection visa and that the applicant’s request for ministerial intervention had been unsuccessful.

3. The delegate’s decision was based on a recommendation made by an officer of the Department.  In making her recommendation, the officer found that although the applicant claimed to be attached to his brothers and wanted to remain in Australia with them, he and his brothers had come to Australia together and therefore the circumstance of him wanting to remain with them was not one which had occurred since his tourist visa had been granted.  She also found that both of the applicant’s bothers held bridging visas which expired in February 2013 and that that circumstance had not resulted in a major change to the applicant’s circumstances.  The officer found that the applicant’s claim that his life was at risk in Israel and that it would be difficult for him to return because of the trouble and depression he had suffered there was not a circumstance which had occurred since the grant of his visa because it related to his life in Israel prior to the grant of the visa.  She found that the applicant’s claim that he would not be a burden to taxpayers because had a full-time job was not a circumstance which had developed over which he had no control and which resulted in a major change to his circumstances.  The officer concluded that although the applicant’s circumstances were “of a compassionate nature”, they were not compelling and recommended to the delegate that the no further stay condition imposed on the applicant’s visa not be waived.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Case Officer refused my application even though I have not yet received the decision.

   2.The Case Officer overlooked my ground since coming to Australia and the circumstances which have developed since my arrival.  The bond between myself and my brothers is so strong and any departure would lead to harm.

   3.The Department when assessing my application for protection visa failed to take into consideration the complementary ground which is the fear of harm and persecution I will suffer if I return to Israel.

Ground 1

1. Although the applicant alleged that he had not received a copy of the Department’s decision on his case, he annexed a copy of it to his affidavit filed on the same day as the application.  Consequently, the first ground of the application fails on the facts.

2. In addresses, the applicant said that neither he nor his authorised recipient had received through the post a copy of the refusal and that he had had to attend the Department to obtain one.  However, even if those circumstances were found to have occurred, that would not mean that the delegate’s decision was affected by jurisdictional error, which is the matter which the applicant must demonstrate in order for him to be successful in these proceedings.

Ground 2

1. In his second allegation the applicant said that the delegate overlooked circumstances which developed following his arrival in Australia and he referred in this regard to his close relationship with his brothers.  Contrary to this allegation, the delegate did consider that question but found that it was not a circumstance which had developed since the applicant’s arrival in Australia.  That conclusion was open on the evidence.

2. In those circumstances, no error on the part of the delegate of the sort alleged in the second ground of the application is made out.

Ground 3

1. The third ground of the application alleged that the Department erred in its consideration of the applicant’s claim for a protection visa.  Two matters need to be noted in relation to that allegation.  First, other than references to the applicant’s protection visa application in the Department’s documents concerning his request for a waiver of condition 8503, there was no evidence before the Court which would shed light on the protection visa application and its determination.  Secondly, the Court has no jurisdiction to review departmental decisions on protection visa applications, its review function being relevantly limited to decisions of the Refugee Review Tribunal.  To the extent that the applicant sought a review of his protection visa application process, the Court does not have power to undertake that task and the evidence is insufficient in any event. 

2. It may be, however, that the applicant alleged that the delegate who considered his request for a waiver of condition 8503 should have taken complimentary protection considerations into account when deciding whether to grant that request.  The delegate was not required to consider whether the applicant satisfied the complimentary protection criteria for the grant of a protection visa because he was not considering the application for a protection visa.  What the delegate was required to consider were the applicant’s circumstances and, relevantly, whether they justified granting his request for a waiver of the visa condition.  To the extent that the information and arguments advanced in support of the applicant’s protection visa application were relevant to that question, the delegate did have regard to that material as his comments of 11 February 2013 on the departmental minute concerning the waiver request make plain.  The relevant material was considered but did not need to be taken into account except in the context of a waiver request, which it was.

3. Consequently, the third ground of the application does not disclose a basis upon which the delegate’s decision should be set aside. 

Conclusion

1. As jurisdictional error on the part of the delegate has not been demonstration, the application will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 October 2013