AQP16 v Minister for Immigration

[2019] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQP16 v MINISTER FOR IMMIGRATION [2019] FCCA 3197

Catchwords:
MIGRATION – Non-reviewable decision of the Respondent – refusal to waive a No Further Stay condition 8503 – whether the Respondent considered the totality of the applicant’s claims – invitation to engage in merits review – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), r.2.05

Applicant: AQP16

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 1018 of 2019

Judgment of: Judge Street

Hearing date: 7 November 2019

Date of Last Submission: 7 November 2019

Delivered at: Sydney

Delivered on: 7 November 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms K Morris
Clayton Utz

ORDERS

1. The name of the applicant is to be suppressed and that there is to be no publication or recording of the applicant’s full name. The applicant is to be identified on the Court file and in these proceedings as “AQP16”.

2. The name of the respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

3. The application is dismissed.

4. The applicant pay the respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 7 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1018 of 2019

AQP16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a non-reviewable decision of the Respondent made on 16 April 2019, refusing to waive a No Further Stay condition 8503. 

2. The applicant is a citizen of Lebanon and on 2 April 2019 applied for waiver of the No Further Stay condition 8503.  The applicant provided material in support of that application, in particular to her being very sick and also referring to an alleged sexual assault that occurred in Lebanon.   The application identified that all the applicant’s children except one live in Australia and the applicant alleged that her circumstances are compelling and compassionate because she is sick and has the majority of her children here in Australia.

3. The delegate identified the information that was before the delegate and, having considered the documents and information provided by the applicant, the delegate found the circumstances of sub-reg 2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) have not been met by the applicant on the date of decision.  The delegate set out the requirements of that provision and in particular paragraph (a) which refers to:

   (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

4. The delegate expressly referred to the alleged sexual assault and noted that the information presented confirms that that occurred allegedly on 1 September 2013, prior to the grant of the visa and accordingly, is not capable of constituting compelling and compassionate circumstances. 

5. The delegate also referred to the applicant’s statement of being sick and her wish to remain in Australia to be cared for by her children and that the majority of them reside in Australia.  The delegate also identified that those five children had been residing in Australia prior to the grant of the visa on 7 November 2013. Having considered the circumstances, the delegate did not find the claims presented have resulted in major change to the applicant’s circumstances, which have developed since the grant of the visa on 7 November 2013.

6. The delegate was in that regard no doubt referring to the fact that the applicant has five children residing in Australia. The delegate was correct in identifying that in those circumstances they do not of themselves constitute compelling and compassionate circumstances, which have developed over which the applicant has no control.

7. Within the meaning of sub-reg 2.05(4)(a) of the Regulations, the delegate also referred to the medical evidence that was adduced and was not satisfied that it demonstrates the applicant’s medical conditions have developed since the grant of the visa and was not satisfied that the medical conditions have resulted in a major change to the applicant’s circumstances since the grant of the visa. 

8. The delegate also turned to the requirement that the circumstances must be compelling and compassionate. The delegate correctly acknowledged that the desire to remain in Australia with her children is a compassionate circumstance.

9. The delegate also took into account the applicant’s medical conditions and was satisfied the applicant could seek treatment for these conditions outside Australia. 

10. It is apparent from the delegate’s decision that the delegate made express reference to the Tribunal hearing transcript dated 9 February 2016 in respect of the protection visa that was provided by the applicant in her application.  The delegate took into account that the applicant may still be suffering symptoms of psychological distress and was satisfied the applicant is able to seek this support outside Australia.

11. The Tribunal also referred to the applicant’s claim as to her desire not to live alone and referred to the opportunity to consider appropriate living arrangements for the applicant upon her departure. Having considered all the information, the delegate found the circumstances presented were not sufficiently forceful to waive the condition. The delegate was not satisfied the circumstances are compelling. 

12. The delegate was not satisfied the circumstances meet the requirement to support the waiver of condition 8503 and was not satisfied that the circumstances in sub-reg 2.05(4) and 2.05(4AA) of the Regulations were met. The delegate refused the applicant’s request for waiver of condition 8503.

Before this Court

1. These proceedings were commenced on 26 April 2019.  On 23 May 2019, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed she understood the nature of the hearing as explained by Court. 

3. From the bar table, the applicant maintained that she wished to remain in Australia because nearly all her children were here and the applicant also made reference to her current medical conditions.

4. It is apparent that the delegate took into account both those matters in the delegate’s decision. Nothing said by the applicant from the bar table identified any jurisdictional error by the delegate in determining whether or not to waive the No Stay condition. 

5. The applicant’s submissions from the bar table otherwise invited the Court to engage in merits review. This Court has no power to grant relief based on the merits of the matter or on compassionate or discretionary grounds. Nothing said by the applicant identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:

   1. The Delegate of the Minister failed to accept that I suffer serious medical condition here in Australia and the severity of the medical condition has resulted in a major change to my circumstances even though I was beaten and sexually assaulted in Lebanon but the deterioration of my physical and mental condition occurred and developed after I entered Australia.

   2. The Delegate failed to accept that I have a genuine risk to return to Lebanon and failed to consider my claim for protection visa in Australia.

Ground 1

1. In relation to ground 1, the two matters referred to in respect of the medical condition, being the sexual assault and beating, were both referred to and taken into account by the delegate.  In substance, ground one invites impermissible merits review. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the applicant asserts a genuine risk of harm upon return to Lebanon and that there was a failure to consider that claim for protection. While it is correct that the applicant annexed the transcript of the unsuccessful protection application, the grounds in a No Further Stay waiver request made no reference to the applicant’s claimed fear of harm upon return to Lebanon as being a relevant consideration in respect of the request for the No Stay waiver.

2. Further, to the extent that the transcript was annexed, it is apparent that the delegate took the transcript into account and that the basis for the protection claim that had been there advanced was the sexual assault that had occurred prior to the granting of the visa and accordingly, is not capable of meeting the requirements insofar as the alleged incident is concerned under sub-reg 2.05(4)(a) of the Regulations. It is apparent that the delegate expressly considered that incident in the delegate’s reasons. No jurisdictional error is made out by ground 2. 

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 November 2019 and the parties were provided sealed copies of the Court’s orders.

Associate: 

Date: 28 November 2019