ARA v Minister for Immigration

[2020] FCCA 1948

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARA & ORS v MINISTER FOR IMMIGRATION [2020] FCCA 1948

Catchwords:
MIGRATION – A600 visitor visa – Waiver of a “No Further Stay” 8503 Condition attached to a visitor visa – Whether the respondent failed to apply the correct test pursuant to sub-s 41(2A) of the Migration Act 1958 (Cth) – Whether the respondent denied procedural fairness to the applicants’ – Whether jurisdictional error was made out – No jurisdictional error is made out – The application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.41(2A)

Migration Regulations1994 (Cth), r.2.05(4)

Cases cited:

Commissioner forAustralian Capital Territory Revenue v Alaphone Pty Ltd

(1994) 127 ALR 699

Kaur and Ors v Minister for Immigration and Anor [2018] FCCA 1614

Mala v Minister for Immigration and Multicultural and Indigenous Affairs

(2005) 189 FLR 341

First Applicant: ROWSHAN ARA

Second Applicant: MOHAMMED MINZANUR RAHMAN

Third Applicant: RAZIA SULTANA

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

File Number: SYG 2078 of 2019

Judgment of: Judge Humphreys

Hearing date: 16 July 2020

Date of Last Submission: 16 July 2020

Delivered at: Parramatta

Delivered on: 16 July 2020

REPRESENTATION

Applicants' appeared in person

Solicitors for the Respondent: Mr Lonsdale - Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicants’ jointly and severely pay the Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2078 of 2019

ROWSHAN ARA

First Applicant

MOHAMMED MIZANUR RAHMAN

Second Applicant

RAZIA SULTANA

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURA AFFAIRS

Respondent

REASONS FOR EX TEMPORE JUDGMENT

(As revised from transcript)

Introduction

1. The first applicant is the spouse of the second applicant, Mohammed Mizanur Rahman and the mother of the third applicant, Razia Sultana.

2. On 27 May 2019, the applicants’ lodged an application to waive a “No Further Stay” 8503 condition (“NFS Condition”) attached to their visitors’ visas’. The first applicant and her dependants’ sought to waive the condition in order to lodge a Medical Treatment visa.

3. On 6 June 2019, a delegate of the Minister for Immigration (“the delegate”), advised the applicants’ that the application to waive their current NFS Condition, had been refused.

4. As this decision is not reviewable by the Administrative Appeals Tribunal, the applicants’ have sought judicial review of the delegate’s decision.

The Delegate’s Decision

1. The delegate noted that the Minister could not waive condition 8503, unless the relevant criteria in the Migration Act1958 (Cth) (“the Act”) and the Migration Regulations1994 (Cth) (“the Regulations”), were satisfied. This included sub-reg 2.05(4) of the Regulations, which is as follows:

   2.05(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 the 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 asked the Minister to waive the condition the request is in writing.

2. Further, sub-reg 2.05(4A) of the Regulations, states that:

   (4A) However the Minister must not waive:

   a)   in relation to a Subclass 020 Bridging B visa granted to a person who is an applicant for a Subclass 462 (Work and Holiday) visa – condition 8540; and

   b)   in relation to a Subclass 462 (Work and Holiday) visa – conditions 8503 and 8540.

3. The delegate noted that the first applicant had previously had a waiver request refused. Where the Minister had previously refused to waive the condition, the Minister must be satisfied that compelling and compassionate circumstances have developed since the first applicant was granted an A600 visitor visa that was subject to condition 8503. The circumstances must be ones over which the client has no control and a result of a major change to the first applicant’s circumstances. The circumstances must also be substantially different from those previously considered.

4. A medical certificate dated 22 June 2019 stated that the first applicant “is suffering from hypertension and severe sciatica causing chronic back pain and lags (sic) pain”. The delegate found this recent medical evidence not to be substantially different from that previously considered.

5. As the second and third applicants’ lodged a request to waive condition 8503 based on the first applicant’s medical condition, the delegate considered all circumstances in relation to the matter. The delegate found that the first applicant’s health concerns of sciatica and hypertension did not represent major changes to the second and third applicants’.

6. The delegate noted, that although the term “compelling” is not defined in the Migration legislation, it should be given its ordinary meaning. This includes forceful, or driving especially to a course of action. The circumstances must be sufficiently forceful that they lead a decision-maker to make a decision to waive the 8503 condition. “Compassionate circumstances” are also not defined in the legislation. The delegate found that compassionate circumstances included, giving rise to a feeling of sorrow or pity for the sufferings or misfortunes of others, or sympathy. As the second and third applicants’ did not provide any information regarding their own circumstances, their circumstances were considered to be based on the first applicant’s circumstances.

7. Based on the information provided in the medical report, the delegate was not satisfied that it would be harmful if the first applicant were to return to her home country. The delegate considered that appropriate medical treatment for the first applicant’s conditions, was available in her home country.

8. Accordingly, the delegate refused to grant the waiver application.

Grounds of Judicial Review

1. In an application filed on 13 August 2019, the applicants’ rely upon the following grounds:

Ground One:

The respondent has failed to apply the correct test pursuant to subsection 41(2A) of the Migration Act 1958 (Cth).

Particulars:

In dealing with the applicants claims under subsection 41(2A) of the Migration Act 1958 (Cth), the delegate of the minister explicitly failed to disaggregate the statutory formulae under regulation 2.05(4).

Ground Two:

The respondent denied procedural fairness to the applicant.

The Applicants’ Submissions

1. The applicants’ appeared before the court unrepresented. The applicants’ were assisted by an interpreter. Despite Court orders, no written submissions were filed in support of the application. At the commencement of the hearing, the Court ensured that the applicants’ were in possession of the Court books and that the respondent’s submissions had been interpreted to them. The applicants’ were also provided with a pen and paper to assist them to take notes during the course of the hearing.

2. The applicants’ were advised that if an oral decision was delivered by the Court that day, that they could request a copy of written reasons from the Court registry.

3. The first applicant told the Court that her medical condition had worsened since the delegate’s decision. The second applicant confirmed that his wife was very sick. The Court advised the first applicant, that this was not a matter that went to jurisdictional error and was a matter that only went to merit. The third applicant did not wish to address the Court

4. Following the oral submissions of the legal representative for the respondent, the applicants’ were invited to tell the Court any further matters they wished the Court to consider. The applicants’ stated that they had nothing further to add.

The Respondent’s Submissions

1. The legal representative for the respondent noted that a previous application for the waiver of a no further stay condition had been unsuccessful. Accordingly, in order for the second application (the subject of these proceedings) to be successful, the delegate needed to be satisfied that substantially different circumstances have developed since the first delegate decision was made. The delegate found that the first applicant’s sciatica condition was not substantially different to the circumstances considered in the first delegate’s decision.

2. However, the delegate considered the first applicant’s hypertension condition was a substantially different circumstance, and assessed the first applicant’s circumstances based on this condition. Given that the second and third applicants’ have made no prior request to waive a NFS Condition, the delegate took into account “all the circumstances”.

3. Ultimately the delegate found that the first applicant’s circumstances had not undergone a “major change” as a result of her hypertension condition and that the first applicant’s health concerns did not represent “major changes” to the second and third applicants’. The delegate also found the first applicant’s circumstances were compassionate but not compelling. The delegate was not satisfied that the evidence provided by the first applicant’s in support of the claim that not waiving the NFS Condition would be harmful and that the first applicant could receive medical treatment for her conditions in a home country. Accordingly, the delegate found that each of the applicants’ circumstances were not compelling.

4. In relation to ground one, the applicants’ appear to allege that the delegate failed to apply the correct test under s 41(2A) of the Act and failed to separately consider the claims against the criteria prescribed by reg 2.05(4) of the Regulations.

5. It was submitted by the legal representative for the respondent, that the delegate correctly identified that s 41(2A) of the Act was the source of the power to waive a NFS Condition and that reg 2.05(4) of the Regulations, prescribed the circumstances under which the power may be exercised. The delegate recognised that the first applicant had made a prior application to waive the NFS Condition and that accordingly, the circumstances must be ‘substantially different’ from those considered previously. It was submitted by the legal representative for the respondent, that the delegate did not conflate consideration of whether the applicants’ circumstances were “compelling” and/or “compassionate” (see Kaur and Ors v Minister for Immigration and Anor [2018] FCCA 1614 at [34]). Further, the delegate correctly considered the meaning of the terms “compelling” and “compassionate” and applied this to the reasoning.

6. In relation to ground two, the applicants’ alleged that they were denied procedural fairness. The ground is a bare assertion and no particulars are provided. It is submitted by the legal representative for the respondent that for this reason alone, the ground should be dismissed (see Mala v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 189 FLR 341 at [21]).

7. It was submitted by the legal representative for the respondent, that there is no basis for the claim that the delegate did not meet procedural faintness obligations. The delegate reached dispositive findings that the applicant circumstances did not represent “a major change” and were not “compelling” solely upon the evidence provided by the applicants and the insufficiency of that evidence as opposed to any undisclosed “material fact”. In this context, there was no critical information was required to be but was not put to the applicant before the delegate made her decision.

Consideration

1. Ground one alleges the delegate failed to apply the correct test by failing to explicitly disaggregate the statutory formula under reg 2.05(4) of the Regulations. The Court does not accept this assertion.

2. It is clear from the decision that the delegate correctly instructed themselves as to the relevant law noting that the first applicant had been previously refused a NFS waiver application. The delegate first found that, the request under consideration was not substantially different from those previously considered. That alone would have been sufficient to refuse the application (see reg 2.05(4)(b) of the Regulations).

3. The delegate also noted that in order for the NFS Condition to be waived there needed to be compassionate and compelling circumstances over which the person had no control and that resulted in a major change to the person circumstances (see reg 2.05(4)(a) of the Regulations). The delegate found that the additional condition of hypertension did not represent a major change to the first applicant’s circumstances. That of itself would have been sufficient to deal with the matter and refuse the application.

4. The delegate however, also went on to consider whether or not the circumstances were compassionate or compelling. The delegate correctly instructed themselves as to the meaning of the two terms, finding the first applicant’s circumstances to be compassionate but did not find them to be compelling. There is nothing in the decision record to indicate that the delegate conflated the two terms. Rather, the delegate considered them separately, and gave adequate reasons why they were not compelling. No jurisdictional error is made out.

5. In relation to ground two the Court agrees with the respondent that in the absence particulars it is very difficult to see what basis there is for making an assertion that there was a denial of procedural fairness to the applicants’. It was for the applicants’ to put forward the material upon which they sought to rely. All that was required of the delegate, was to consider properly that information and make a determination. There was no adverse material in the consideration by the delegate, which would not obviously be known to the applicants’ and which as a matter of natural justice would have been required to be identified to the applicants’ so they could comment upon it prior to any decision been made.

6. There is no requirement on a decision-maker to “expose his or her mental processes or provisional views to comment before making the decision in question” (see Commissioner for Australian Capital Territory Revenue v Alaphone Pty Ltd (1994) 127 ALR 699).

7. Ground two reveals no jurisdictional error. Accordingly, the application by the first applicant is dismissed.

8. As the second and third applicants’ application was dependent upon the first applicant’s case succeeding, which it has not, accordingly, their applications must also be dismissed.

9. As the applicants’ are unrepresented, the Court has considered the delegate’s decision and can find no jurisdictional error which has not been articulated.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 21 July 2020