Ark16 v Minister for Immigration
[2017] FCCA 3087
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARK16 v MINISTER FOR IMMIGRATION | [2017] FCCA 3087 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Applicant for judicial review had been granted a Visitor visa subject to condition 8503 “No Further Stay” – request to Minister to waive the condition – Delegate refuses request on basis that no compelling circumstances had been established – Delegate’s decision not affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.31, 338. Migration Regulations 1994 (Cth) |
| Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 |
| Applicant: | ARK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2016 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 March 2017 |
| Date of Last Submission: | 7 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr L Leerdam |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Direct that the Court Book be marked Exhibit A.
Direct that the Notification Letter and Visa Grant Notice, each dated 18 November 2013, be marked Exhibit B.
The Application filed in this Court on 28 July 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2016 of 2016
| ARK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Lebanon aged 28 years, having been born on 6 May 1989.
By Application filed in this Court on 28 July 2016 he seeks by constitutional writs to quash and have redetermined according to law the decision of the Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 July 2016 refusing to waive Condition 8503 of Sch.8 (Condition 8503) to the Migration Regulations 1994 (Cth) (the Regulations), to which his single entry Short Stay Sponsored (Visitor) (Class UL) Sponsored Family Visitor (Subclass 679) visa (Visitor visa) was subject under the Migration Act 1958 (Cth) (the Act).
Relevant Factual and Legal Background
After his arrival in Australia on 19 January 2014 on the Visitor visa the Applicant applied for a Protection visa on 5 March 2014 which was refused by a Delegate of the Minister on 4 August 2014. He applied to the Refugee Review Tribunal (RRT) for a merits review of the Delegate’s decision, but the Delegate’s refusal was affirmed by the RRT on 26 October 2015. The Applicant’s application to this Court for judicial review of the decision of the RRT was dismissed on 10 June 2016.
The Visitor visa was subject to Condition 8503 which is generally known as the “No Further Stay” condition. Its effect is to preclude a visa holder from applying for another visa allowing him to remain in Australia, except for a Protection visa: Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 (Kumar) at [2] per Jagot J.
By s.41(1) of the Act, the Regulations are authorised to provide that visas, or visas of a specified class, are subject to specified conditions.
By s.41(2)(a) of the Act, such Regulations may specifically 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 is such a condition as envisioned by s.41(2)(a).
Condition 8503 states as follows:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
Subclause 679.611 of Sch.2 to the Regulations relevantly made the Visitor visa subject to Condition 8503.
Section 41(2)(a) of the Act permits the Minister (or his or her Delegate) in prescribed circumstances to waive a condition such as Condition 8503. The prescribed circumstances appear in reg.2.05(4) of the Regulations 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.
(emphasis supplied)
On 22 June 2016 the Applicant requested the Minister to waive Condition 8503. To obtain that waiver the Applicant was required to establish that “compelling and compassionate circumstances” had developed “over which he had no control” and which had “resulted in a major change” to his personal circumstances.
Basis of Applicant’s Request for Waiver of Condition 8503
The basis of the Applicant’s request for waiver of Condition 8503 was because his sister, who lives in Sydney, suffered from postnatal depression and has 6 children. He said in his application for waiver as follows:
My sister, Sondos El Samad, has medical condition and requires my assistance & day to day care because she suffers depression and has 6 young children. She previously sponsored my sister, Shadia El Samad, and the visa was refused. I have been looking after my sister, Sondos, and her children since I came to Australia.
My brother-in-law, Aman Hamad, is a Station Duty manager. He works hard long hours & does not have time to look after my sister & 6 children.
I submit letter from Westmead Hospital which was submitted in support of my sister’s application.
I also submit a letter from Granville Bridge Medical Centre. My sister needs me as her carer.
The Applicant further indicated in his request for waiver that if the waiver was granted he would apply for a Carer subclass visa.
Decision of Delegate
The Delegate in his Decision Record found that the Applicant had not met reg.2.05(4) of the Regulations and refused his request for a waiver of Condition 8503.
The Delegate found that since the grant of the Visitor visa there had been no major change to the personal circumstances of the Applicant. The Delegate accepted that the birth of the twins of the Applicant’s sister (on or about 23 November 2015) and her subsequent medical condition, including postnatal depression, was a major change to the circumstances of the sister and her husband. However, the Delegate did not accept that these circumstances resulted in a major change to the personal circumstances of the Applicant himself.
Accordingly, for the purposes of reg.2.05(4) of the Regulations the Delegate found that there had not been a major change to the Applicant’s personal circumstances.
The Delegate then acknowledged that the Applicant desired to provide further care and support to his sister and that the Applicant’s relevant circumstances were therefore compassionate.
However, the Delegate did not accept that the Applicant’s circumstances were compelling. The Delegate recorded that the Applicant’s brother (and therefore his sister’s brother) and the brother’s family, with whom the Applicant had been living, resided in Sydney and the Delegate therefore gave little weight to the statement made in a letter submitted by the Applicant from a social worker, dated 25 January 2016, stating that the sister and her husband had informed her that they had no available family support in Sydney. The Delegate made no finding or comment on how this claim could have been truly made at all, since it was the Applicant’s claim that he had been looking after his sister and her children since he came to Australia on 19 January 2014.
The Delegate also pointed out that there were alternative options for support for the sister in Australia and found that the Applicant’s circumstances were not sufficiently forceful to satisfy reg.2.05(4) and he refused the Applicant’s request for a waiver of Condition 8503.
Grounds of Application
In his Application filed in this Court the Applicant relies on three Grounds, being:
1.The Delegate of the Minister failed to interpret and apply the meaning of compelling which, according to his letter, is not defined in the Migration legislation.
2.The Delegate ignored the state my sister is in which is forceful and failed to ask what will happen to my sister if I am forced to depart Australia.
3.The Delegate of the Minister misapplied the law and misunderstood the suffering of my sister based on the evidence before him.
Consideration
The decision of the Delegate refusing to waive Condition 8503 is not a Tribunal-reviewable decision as provided by s.338 of the Act and therefore is not susceptible to any merits review application. It was therefore necessary for the Applicant to approach this Court with respect to the decision by way of an application for judicial review: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (Ahmed) at [11] per Perram J and Kumar at [4].
I note that there was no obligation on the Delegate to provide reasons for his decision: see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J (as he then was); Kaur v Minister for Immigration and Citizenship [2011] FCA 969 at [8] per Reeves J and Ahmed at [11]. Notwithstanding that the Delegate was under no legislative requirement to provide a statement of reasons for his refusal of a waiver of Condition 8503, he quite properly did so in his Decision Record of 4 July 2016. I note that where the Delegate was not duty-bound to give reasons for his decision it is difficult to draw an inference that the decision has been attended by an error of law by what has not been said by the Delegate: PlaintiffM64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 (M64/2015) at 185 [25] per French CJ, Bell, Keane and Gordon JJ.
Ground 1
Jurisdictional error could conceivably be shown in this case if the Delegate had manifested a legally erroneous view as to what needed to be satisfied with respect to “compelling circumstances”.
However, that is not the case here. In his Decision Record the Delegate said as follows about the meaning of the word “compelling”, and why he was not satisfied that the Applicant’s circumstances were compelling:
However, I do not accept that your circumstances are compelling. The term ‘compelling’ is not defined in the migration legislation. It is therefore given its ordinary meaning. ‘Compelling’ means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.
The meaning given to the word “compelling” by the Delegate accords with the meaning given by French CJ, Bell, Keane and Gordon JJ in M64/2015 at [31] and that of Gageler J at [64].
At [31] of M64/2015 their Honours said:
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted.)
At [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted.)
In Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 the Full Court of the Federal Court comprised of Tamberlin, Conti and Jacobson JJ at [21]-[24] had stated as follows:
[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. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[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 reg 1.20J(1) should be waived.
Finally, in Liu v Minister for Immigration and Border Protection [2015] FCA 1368 Markovic J said in connection with the expression “compelling circumstances” at [39]:
[39]The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria.
In my view the Delegate did not misinterpret or misapply the expression “compelling circumstances” or take a legally erroneous view as to what constituted compelling circumstances.
Accordingly, Ground 1 fails to establish jurisdictional error.
Ground 2
In my view this Ground also fails. In his Decision Record the Delegate did consider the circumstances of the sister of the Applicant if the Applicant left Australia, where he:
a)acknowledged the sister’s postnatal depression;
b)acknowledged that the Applicant would like to remain in Australia longer to provide care and support for her;
c)acknowledged that it was claimed that the sister’s husband worked long and hard hours and did not have time to look after six children;
d)acknowledged the letter from the social worker stating that the sister and her husband had informed the social worker that they had no available family support in Sydney; and
e)nevertheless discounted the statement that there was no family support available in Sydney for the sister because another brother of the Applicant’s sister lived in Sydney with his family and there were alternative options for support for her available in Australia.
As a result of the above it is clear that the Delegate did not fail to consider what would happen to the Applicant’s sister if the Applicant departed Australia.
Accordingly, Ground 2 fails to establish jurisdictional error.
Ground 3
In my view the Applicant has failed to establish that the Delegate misapplied the relevant law. In particular, as found above in connection with Ground 1, the Delegate did not misapply or misunderstand the law in relation to “compelling circumstances”. Further, the Delegate did consider and take into account the position of the sister of the Applicant if he were to depart Australia.
Of course the Applicant is dissatisfied with the Delegate’s decision not to accede to his request to waive Condition 8503. However, this Court is not empowered to engage in a merits review of the Delegate’s decision. As McHugh J said in Re Minister For Immigration And Multicultural Affairs and Others; Ex parte Cohen (2001) 177 ALR 473 at 482 [36]:
[36] If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
Ground 3 also fails to establish jurisdictional error.
Conclusion
In my view the Applicant has failed to establish that the Delegate’s decision is affected by jurisdictional error and the Application is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 15 December 2017
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