BOUTROS v Minister for Immigration

[2017] FCCA 2271

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOUTROS v MINISTER FOR IMMIGRATION [2017] FCCA 2271

Catchwords:
MIGRATION – No further stay waiver request – condition 8503 – review of decision of delegate of the Minister – whether the delegate erred in his interpretation of the terms “compassionate” and “compelling” – no jurisdictional error – application be dismissed.

Legislation:

Migration Act 1958 (Cth), s.41

Migration Regulations 1994 (Cth), reg.2.05

Cases cited:

Terera v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570

Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590

Applicant: YOUSSEF BOUTROS

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1847 of 2016

Judgment of: Judge Smith

Hearing date: 22 August 2017

Date of Last Submission: 22 August 2017

Delivered at: Sydney

Delivered on: 22 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Ms G Doyle, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1847 of 2016

YOUSSEF BOUTROS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Lebanon who arrived in Australia on 29 May 2014 as the holder of a visitor visa.  That visa was subject to condition 8503.  That condition, otherwise known as the “no further stay” condition provided:

   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 power to impose such a condition arises under s.41(2A) of the Migration Act 1958 (Cth) (Act). However, under s.41(2A) of the Act, the Minister may “in prescribed circumstances” waive the condition. Those circumstances are prescribed for the purposes of s.41(2A) of the Act by reg.2.05(4) of the Migration Regulations 1994 (Cth) (Regulations). 

3. Regulation 2.05(4) provides:

   Conditions applicable to a 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;  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 in original)

4. On 8 June 2016, the applicant made a written request to the Minister, to waive condition 8503 principally because, as he stated, he had to look after his sister, who was in a “very bad condition”.  On 21 June 2016, a delegate of the Minister decided to refuse to waive condition 8503.  There was no obligation on the delegate to give reasons, or detailed reasons, for that refusal, however, the delegate did so briefly in a document entitled “Decision Record”.  I set those reasons below (without alteration):

   Reasons

   I have assessed the request by the client and the reasons for my decision are detailed below. A request for a condition 8503 waiver has been made by the client. Under migration law, the Minister cannot waive condition 8503 unless the client meets the relevant legal provisions that are specified in the Act and the Regulations.

   The circumstances of subregulation 2.05(4) have not been met by the client on the date I made my decision. Subregulation 2.05(4) states that:

   …

   Circumstances are outside of your control

   In your request you have stated that your sister is pregnant and has some medical conditions of concern. You further state you would like to support her emotionally and physically. Your sister’s pregnancy is a circumstance that is considered a natural progression of her relationship with her husband. Although your sister’s pregnancy is not within your control, the personal choice that you are making to provide care and support in the knowledge of your immigration status is within your control. Therefore, I am not satisfied that this circumstance is a circumstance that is outside of your control and does not meet the requirements of the provisions that are set out in Reg 2.05(4).

   Circumstances are both compelling and compassionate

   
   

   I acknowledge that your desire to remain in Australia to care for your sister is compassionate 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.

   In your request you have stated that there is no one else in Australia that can provide support and care for you sister. Your sister has a husband who has supported her and his family since 2005, almost 10 years prior to your arrival in Australia. Further, the medical documents you have provided do not confirm any medical condition that would seriously impact your sister’s health. You sister has a medical plan in place with her doctor and this is confirmed in the document you have provided from Dr Anna Thai dated 24 December 2015. Therefore, I am not satisfied that your circumstances are sufficiently forceful that it would lead me to make the decision to waiver the no further stay condition 8503.

   In considering all the information you have provided to support your request to waive condition 8503, I have assessed these claims against the criteria in Reg 2.05(4). I am not satisfied your circumstances are circumstances that meet all the criteria set out in the Regulations and therefore the condition 8503 has not been waived under sub-section 41(2A) of the Act.

   Decision

   As I find that the circumstances in subregulation 2.05(4) and 2.05(4AA) are not met by the client, I therefore refuse the request by the client for a waiver of condition 8503.

   (Emphasis in original)

Considerations

Ground one

1. The applicant now seeks judicial review of the delegate’s decision.  The first ground of the application is that:

   The Department did not distinguish the difference between compelling and compassionate. 

2. That ground must be rejected because the delegate accepted that the applicant’s desire to remain in Australia to care for his sister was compassionate, but did not consider that the circumstances were compelling. 

3. The delegate understood that the word “compelling” was used in this condition in its ordinary sense, which was consistent with authority of the Federal Court in decisions such as Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 and Terera v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570. The delegate properly understood that there was a difference between the two terms in the condition, and did not fall into the error alleged by ground 1.

Ground two

1. The second ground is that:

   My sister’s circumstances are compelling. 

2. That ground does no more than argue that the delegate made a wrong conclusion based upon the material before it. The question of whether something is “compelling” involves some level of judgment by an individual decision-maker. That judgment is entrusted to the Minister pursuant to the Act. It is not one for the Court to decide. For that reason, the second ground is not made out.

3. There were a number of alternative reasons for which the delegate came to his decision.  Each of those was a cumulative requirement of the discretion to waive condition 8503.  I can find no error in the delegate’s conclusion concerning whether or not the circumstances in question were “compelling”.  For that reason alone, I must conclude that the delegate had the authority to refuse to grant the waiver required of him. 

Conclusion

1. That conclusion, in addition to the reasons for which I have rejected the applicant’s grounds, means that the application must be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       22 September 2017