BGK15 v Minister for Immigration

[2017] FCCA 2605

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGK15 v MINISTER FOR IMMIGRATION [2017] FCCA 2605

Catchwords:
MIGRATION – Application for judicial review of decision of delegate of Minister for Immigration and Border Protection not to waive “no further stay” condition attached to visa – decision made in relation to a second application to waive condition – whether delegate considered medical condition of applicant’s partner – whether delegate was required to consider applicant’s claimed fear of returning to Egypt – whether delegate was required to consider whether there were compelling and compassionate circumstances – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.41(1), 41(2)(a), 41(2A)

Migration Regulations 1994 (Cth), reg.2.05(4), 2.05(4)(a), 2.05(4)(b),

2.05(4AA)

Migration Regulations 1994 (Cth), Schedule 8, cond. 8503

Applicant: BGK15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2158 of 2016

Judgment of: Judge Manousaridis

Hearing date: 20 October 2017

Date of Last Submission: 20 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms C Hillary of

DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2158 of 2016

BGK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of a delegate of the respondent (Minister) made on 3 August 2016 refusing the applicant’s application for a waiver of condition 8503 that had been imposed on the applicant’s Temporary Business Entrant (Class UC) (Subclass 456) visa (456 visa).

Background

1. The applicant is a citizen of Egypt. The applicant was granted the 456 visa on 23 December 2012, and arrived in Australia on 7 January 2013. The visa was subject to condition 8503, which is often referred to as the “no further stay” condition. Condition 8503 is set out in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) and provides:

   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.

2. The applicant applied for a Protection (Class XA) visa on 13 February 2013. A delegate of the Minister refused that application on 26 September 2013 and, on 1 October 2014, the delegate’s decision was affirmed by the Refugee Review Tribunal (Tribunal). The applicant applied for judicial review of the Tribunal’s decision, but a judge of this Court dismissed that application on 10 June 2016.

3. The applicant first applied for a waiver of condition 8503 on 18 July 2016.[1] In the document by which the applicant applied for a waiver (which is headed “No further stay waiver request”), under the heading “reasons for waiver” the applicant stated (errors in original):

   [1] The form by which the applicant applied for the waiver is dated 16 July 2016, which was a Saturday. The delegate noted the request for waiver was made on 18 July 2016, presumably because 16 July 2016 was a Saturday. Nothing turns on this.

   I just became aware that my visa has condition 8503. I have a relationship with an Australian partner and I wish to submit my partner visa application in Australia because I am unable to return to Egypt and apply for offshore because I have a fear of persecution and my life at risk if I return to Egypt. Mr partner… is suffering and has serious medical conditions and unable to go with me to Egypt. Medical report will be provided. Appreciate that the department waive the 8503 soon.

4. The applicant did not provide the medical reports he referred to, despite a request for this information being sent by email on 18 July 2016 by an officer of the QLD Waiver Team. On 26 July 2016 a delegate (first delegate) refused this waiver request.

5. On 26 July 2016 the applicant made a second request for a waiver of condition 8503. Under the heading “reasons for waiver” in the “No further stay waiver request”, the applicant stated (errors in original):

   I have a relationship with an Australian Partner [name and address of partner given] is current suffering and has a serious medical condition (medical health summary sheet is attached) because of my compelling and compassionate situation I’m unable to go to Egypt, leave my partner in this distressful condition. I hope department will waive my 8503 visa condition so that I will be able to help and support my partner.

6. With his waiver request the applicant provided a medical report titled “Health Summary Sheet” relating to the applicant’s partner dated 26 July 2016, being the date the document was printed.[2]

   [2] CB30

7. By letter dated 3 August 2016 the applicant was notified the second waiver request had been refused. The applicant filed an application with this Court on 10 August 2016 seeking judicial review of the delegate’s decision refusing the second waiver request.

Relevant Law

9.Subsection 41(1) of the Migration Act 1958 (Cth) (Act) provides that “[t]he regulations may provide that visas, or visas of a specified class, are subject to specified conditions”. Paragraph (a) of s.41(2) of the Act provides, among other things, that, without limiting s.41(1), the Regulations may provide that a visa or visas of a specified class are subject to a condition that, despite anything else in the 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.

10.Subsection 41(2A) of the Act provides that 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)”. Circumstances for the purposes of s.41(2A) were prescribed by reg.2.05(4) of the Regulations, which provides as follows:

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.

Delegate’s decision

1. The delegate noted that, under migration law, the Minister cannot waive condition 8503 unless an applicant meets the relevant legal provisions specified in the Act and Regulations. The delegate then:

   a)set out reg.2.05(4) and reg.2.05(4AA) (which is not relevant to the issues in this proceeding);

   b)referred to the applicant’s having previously made a request on 18 July 2016 for the waiver of condition 8503 and the reasons for which the applicant then claimed the waiver;

   c)stated the effect of reg.2.05(4) of the Regulations as it applied to the applicant, namely, that “the Minister must be satisfied that compelling and compassionate circumstances have developed since you were granted the Subclass 600 (Visitor) visa that was subject to condition 8503, over which you had no control, and resulted in a major change to your circumstances; and are substantially different from those considered previously”;[3] and

   d)stated the applicant’s claims in his second request “are again based on his partner’s serious medical conditions that require him to remain in Australia”.

   [3] The delegate was incorrect in stating that the applicant was granted a Subclass 600 (Visitor) visa. The applicant was granted a 456 visa. Nothing turns on this, however, because the 456 visa was subject to condition 8503.

2. The delegate concluded:

   Having considered  . . . all of the evidence and claims in the second request under paragraph 2.05(4)(b) of the Regulations, I am not satisfied that the circumstances described in the second request are substantially different to those previously considered. Whilst the client has now provided a list of medications and conditions that affect his partner, I am not satisfied that this additional information represents substantially different circumstances.

Grounds of application

1. The application contains three grounds of application. The applicant, who is not legally represented, made submissions, but none of these were directed to the grounds of application. I will first set out and consider the grounds of application, which are as follows:

   1.The Department refused the first request because medical evidence was not provided within seven days.

   2.Another request was made with the medical condition and the Department failed to consider the contents of the medical certificate and failed to consider the circumstances and fear for the applicant’s life if he was required to return to Egypt.

   3.The Department failed to consider that there are compelling circumstances in this matter.

2. Ground 1 is an assertion of fact. By itself it does not disclose any jurisdictional error by the delegate.

3. Ground 2 claims the delegate failed to consider two matters. The first is the contents of the medical certificate the applicant submitted to the delegate. I am not satisfied the delegate did not consider the medical certificate the applicant submitted with his waiver request. The delegate noted that the “client’s claims in this second request are again based on his partner’s serous medical conditions that require him to remain in Australia”, and that “[w]hilst the client has now provided a list of medications and conditions that affect his partner, I am not satisfied that this additional information represents substantially different circumstances”.

4. The second matter ground 2 claims the delegate did not consider is the applicant’s claimed fear of harm if he were to return to Egypt. It is true the delegate did not consider that matter; but the delegate made no jurisdictional error by not considering it. The applicant did not, in the second “No further stay waiver request” he submitted, give as a reason for the waiver of condition 8503 the circumstances that exist in Egypt or the applicant’s fearing for his life if he were to return to Egypt.

5. Ground 3 claims the Tribunal failed to consider whether there were any compelling circumstances in the applicant’s case. It is true the delegate did not, in her reasons, expressly consider whether there were any compelling circumstances. From that it may be inferred the delegate did not consider whether there were any compelling circumstances. The delegate, however, made no jurisdictional error by not considering that matter.

6. The applicant had previously applied for a waiver of condition 8503 which the first delegate refused. That meant that reg.2.05(4)(a) and (b) of the Regulations required the delegate to be satisfied, not only that compelling and compassionate circumstances developed after the applicant was granted the 456 visa, but that those circumstances are substantially different from the circumstances the first delegate considered. That was an essential pre-condition of which the delegate had to be satisfied before condition 8503 could be waived. It was therefore open to the delegate first to consider whether the circumstances that were before her were substantially different from the circumstances the first delegate considered. That is so because if the delegate were not satisfied the circumstances were substantially different from those the first delegate considered, the delegate’s considering and finding there were compassionate circumstances could not have resulted in the delegate waiving condition 8503 because the delegate would not have been satisfied of the existence of an essential pre-condition to the waiving of condition 8503.

7. The delegate was not satisfied that an essential pre-condition provided for by reg.2.05(4) for the waiving of condition 8503, namely, the circumstances before her were substantially different from those the first delegate considered, was satisfied. That means that even if the delegate were to have considered and accepted the circumstances before her were compelling or compassionate, that could not have resulted in the delegate waiving condition 8503 because the delegate would not have been satisfied the circumstances were substantially different.

8. Ground 3, therefore, fails.

Submissions at hearing

1. At the hearing before me the applicant referred to his having lived in Australia for five years, that he has respected all the hard rules that apply to him; he had worked and paid tax; he is now denied the right to work, to education and to health services; and he was unaware that his visa was subject to condition 8503. The applicant said that when applying for the waiver of condition 8503 he gave two reasons for seeking the waiver - his fear of returning to Egypt, and the illness of his partner. The applicant asked that I take into account these compassionate circumstances.

2. None of these matters reveal any jurisdictional error by the delegate. As I informed the applicant, this Court does not have jurisdiction to consider whether condition 8503 should be waived, or whether there were compassionate circumstances. As I also informed the applicant, whether or not condition 8503 to the applicant’s 456 visa was to be waived was a decision that could only be made by the Minister himself or through his delegate; that the delegate in the case before me could only have waived the condition if the delegate were satisfied that the preconditions for the waiver provided for by the Regulations were satisfied; and that the role of this Court was limited to ensuring that the delegate approached her task according to law.

3. After I informed the applicant of the limits of this Court’s jurisdiction, the applicant again submitted the delegate did not take into account his fear of returning to Egypt or the illness of his partner. These submissions repeated the claims made in ground 2 of the application. As I have already concluded, I am not satisfied the delegate did not take into account the applicant’s partner’s illness. As I have also already concluded, the delegate did not consider any claimed fear by the applicant of returning to Egypt, but the delegate made no jurisdictional error by not considering or taking into account any such claimed fear because, although in his first waiver request, the applicant gave his claimed fear of returning to Egypt as a reason for waiving condition 8503, he did not, in his second application for a waiver, give his fear of returning to Egypt as a reason for the waiver.

Costs and disposition

1. I invited submissions about costs. I informed the applicant that the usual order that is made at the conclusion of a proceeding is that the unsuccessful party must pay the legal costs of the successful party. Ms Hillary, who appeared for the Minister, informed me that, if the Minister were to succeed, the Minister would seek an order for costs set in the amount of $4,800. In response to my invitation to the applicant whether he wished to submit that, if he were to fail in his application, he should not be ordered to pay the Minister’s costs set in the amount of $4,800, the applicant asked whether arrangements could be made for the payment by instalments of any costs that may be ordered against him. I informed the applicant that an unsuccessful party’s inability to meet an order for costs is not a reason for not making an order for costs; and if the applicant were to fail in the proceeding and I were to make an order for costs against him, the applicant would need to enter into negotiations with the Minister’s lawyers about paying those costs.

2. Given I have concluded that the applicant’s grounds have failed, and I am otherwise not satisfied the delegate made a jurisdictional error, I propose to order that the application be dismissed. I am also satisfied that costs should follow the event and propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $4,800.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 October 2017