BVY20 v Minister for Immigration
[2020] FCCA 1247
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVY20 v MINISTER FOR IMMIGRATION | [2020] FCCA 1247 |
| Catchwords: PRACTICE & PROCEDURE – Application in a case seeking summary dismissal pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) of the substantive application – whether there are reasonable prospects of success – factors considered – no reasonable prospects of success – application in a case allowed – substantive application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), r.13.10 |
| Cases cited: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 Hariady v Minister for Immigration [2018] FCCA 407 Chung v University of Sydney [2001] FMCA 94 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 ANA18 v Minister for Home Affairs [2018] FCA 1854 WZATH v Minister for Immigration & Anor [2014] FCCA 612 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 BQN16 & Anor v Minister for Immigration & Anor [2019] FCCA 481 |
| Applicant: | BVY20 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3957 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 May 2020 |
| Date of Last Submission: | 14 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Applicant: | In person (by telephone) |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Legal Representative for the Respondent: | Mr M. Gao (by telephone) |
ORDERS
The substantive application made on 19 December 2017 is dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $3667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3957 of 2017
| BVY20 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application in a case made by the Minister on 6 June 2018, seeking summary dismissal pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCCA Rules”) of the applicant’s substantive application made on 19 December 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the delegate of the Minister which refused the waiver of a condition attached to the applicant’s student (guardian) visa (“the visa”).
The application in a case seeks the following orders:
“1. The Applicant’s application for review of a decision of a delegate of the Respondent filed on 19 December 2017 be dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
2. The Applicant pay the costs of the Respondent.”
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”), the affidavit of Hongyi Gao, solicitor, made on 6 June 2018 and filed with the application in a case on the same date, and a supplementary bundle of relevant documents (“SCB” – “RE2”).
Background
The applicant is a citizen of China (item 4 at CB 2 and CB 4 – CB 6). She arrived in Australia on 26 June 2007 (item 5 at CB 2 and CB 5) on a student (guardian) visa, which expired on 31 December 2008 (item 5 at CB 2).
The visa was subject to a number of conditions (SCB 1 – SCB 3). Amongst these was condition 8534. It was in the following terms (at SCB 3):
“Condition- 8534
The holder will not be entitled to be granted a substantive visa, other than:(a)a protection visa; or
(b)a student visa the application for which must be made on form 157P or 157P (Internet); or
(c)a Subclass 497 (Graduate — Skilled) visa; or
(d)a Subclass 580 (Student Guardian) visa;
while the holder remains in Australia.”
On 6 December 2017 the applicant made an application to waive what was described as the “no further stay” condition (see “No Further Stay waiver request – Form 1447” at CB 2 to CB 3). She made a number of claims in explanation of her change of circumstances, and attached relevant documents, including copies of pages of her passport, and two documents titled “consultation notes” from a medical practitioner (CB 4 to CB 8). The applicant noted that she intended to apply for a Medical Treatment (subclass 602) visa if her request was approved (item 16 at CB 3).
The “reasons for waiver” provided by the applicant included:
i.“A. My circumstances has a big change after my arrival. I applied for protection visa due to my strong fears of my ex-husband’s violence and mistreatment. Though my application was rejected by DIBP, AAT and Court, I am still scared that I will be in danger if I returned. In addition, my health condition has been unwell recently. I have been sufferred from stomach discomfort for about a year time, also have a number of other medical issues (refer to doctor certificate). I want to undertake medical treatment in Australia. It is impossible for me to return to China to conduct such a treatment.” [Errors in the Original.] (item 15.A. at CB 3);
ii.“B. Due to the past years’ life pressure which caused my stomachache [sic] worse. This situation is beyond my control as I can only take this treatment in Australia.” [Errors in the Original.] (item 15.B. at CB 3);
iii.“C. I will be in very dangerous situation and my health condition will get worse and worse if I returned to my home country. The Doctor here has referred me to conduct further treatment in Australia. I wish my 8534 condition can be waived so that I can apply for subclass 602 in Australia.” [Errors in the Original.] (item 15.C. at CB 3).
The Delegate’s Decision
The applicant was notified on 14 December 2017 that her request for waiver of the “no further stay condition 8534” had been refused, as she did not meet the requirements of reg.2.05 of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 9 to CB 13).
The applicable elements of reg.2.05 were, at the relevant time, in the following terms:
“Regulation 2.05
Conditions applicable to 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.
…
(5A) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has completed the course for which the visa was granted; and
(b) has a genuine intention to apply for:
(i) a General Skilled Migration visa; or
(ii) a Subclass 132 (Business Talent) visa; or
(iii) a Subclass 186 (Employer Nomination Scheme) visa; or
(iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
(6) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.
Note: Regulation 2.07AH deals with applications for visas by persons for whom condition 8534 has been waived under subregulation 2.05(6).”
The delegate found that the applicant’s circumstances were not “compelling and compassionate” within the meaning of reg.2.05(4) of the Regulations (CB 11 – CB 13).
The delegate noted that while the applicant’s claims to fear her ex-husband, and the “discomfort” she may have been experiencing from her medical issues, were “compassionate”, the delegate had to determine whether they were also “compelling”. The delegate noted (at CB 13.2):
“…The term 'compelling' is not defined in the migration legislation. It must be 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 making her decision, the delegate took into account that the applicant’s stated fear for her safety, due to potential violence from her ex-husband if she returned to China, was a “perceived threat” (CB 13.3). The delegate noted that the applicant had: “…not been in her home country for over ten years” and that there was: “…no evidence to show that there [was] any danger to the [applicant] if she were to return” (CB 13.3).
In considering the applicant’s medical reasons for the “waiver request”, the delegate noted that the applicant had received treatment for various ailments, taking into account findings from various “medical examinations” (CB 13.4 – CB 13.6). The delegate found (at CB 13.6):
“…Although it may be the client's preference to remain in Australia and seek medical treatment, based on the evidence, I am not satisfied that she would not be able to receive treatment in her home country. Therefore I am not satisfied that her circumstances are sufficiently forceful to waive the condition.”
The delegate assessed the applicant’s claims against the criteria in reg.2.05(4). She was not satisfied that the applicant’s circumstances met all the criteria. In addition, the delegate found that the applicant’s circumstances did not meet subregulations 2.05(5), 2.05(5A), and 2.05(6). The delegate therefore refused the request by the applicant for a waiver of condition 8534 (CB 13.8).
The notification letter informed the applicant that there was: “…no right of merits review” for the decision (CB 9). Specifically, under the heading “Review rights”, the notification letter stated (at CB 9.5):
“There is no right of merits review for this decision. This decision is not reviewable by the Administrative Appeals Tribunal and no further assessment of this waiver request can be made. Under the Act, the Minister does not have a general discretion to intervene in a case such as this.”
The applicant previously held a Bridging C (class WC) Bridging C (subclass 030) visa which expired on 12 October 2017. At the time of the refusal of the waiver request the applicant did not hold a visa, and therefore remained in Australia “unlawfully” (CB 9.6).
The applicant filed an application on 19 December 2017 seeking judicial review of the decision of the delegate.
The Substantive Application to the Court
The grounds of the applicant’s substantive application were contained in a written “attachment” to her application to the Court, filed on 19 December 2017. Those grounds are in the following terms:
“1. I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears to return to my home country to apply for subclass 602.
2. I provided with DIBP my compelling reasons for my waiver request, however they did not accept it. I am very disappointed that DIBP ignored the fact that I am unable to return to my home country and I do have medical problem need to be treated here.
3. DIBP did not show any concerns to my waiver evidence, I don’t think I have been fairly treated.”
[Errors in the Original.]
In addition, under the heading “Orders sought by the Applicant”, the applicant included “Orders sought” which were in the following terms:
“1. I disagree with Immigration’s decision. They did not consider that I have compelling and compassionate grounds to request for waiver of 8534 condition on my initial entry visa.
2. They did not consider the fact of my strong fears to return to my home country to apply for subclass 602. I have provided sufficient information and evidence to support my waiver request, however DIBP did not give a good consideration of my actual situation was out of my control.
3. DIBP should waiver the 8534 condition and allow me to apply for subclass 602 in Australia.”
[Errors in the Original.]
Before the Court
The applicant first appeared before the Court on 1 February 2018, where orders were made, by consent, by a Registrar of this Court, for the timetabling of the filing of documents, including that the applicant file and serve an amended application by 8 May 2018. No amended application was filed. The applicant and the respondent were also given the opportunity to file and serve written submissions 14 days and 7 days, respectively, before the hearing.
On 6 June 2018, the Minister filed an application in a case for summary dismissal of the application made on 19 December 2017, pursuant to r.13.10(a) of the FCCA Rules, on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding.
On 23 April 2020 the parties were notified that the Minister’s application in a case had been listed for hearing on 14 May 2020. The Minister filed written submissions on 30 April 2020. No further documents were filed by the applicant.
The Minister’s Application in a Case
The Minister’s application relies on r.13.10(a) of this Court’s rules. The Court’s power to summarily dismiss a substantive application, such as the one made by the applicant now, derives from s.17A of the Federal Circuit Court of Australia Act 1999 (Cth). That section, I note for current purposes, mirrors s.31A of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).
Relevant Principles: No Reasonable Prospect
The term “no reasonable prospect” of success in the context of s.31A of the FCA Act, but with relevance to the current case, was considered by the High Court in Spencer v Commonwealth [2010] HCA 28 (“Spencer”). For current purposes what is respectfully of note is as follows.
One, the power to dismiss an application summarily is not to be exercised lightly. The consideration of whether to dismiss summarily requires great caution (Spencer at [26] and see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125).
Two, as was said in Spencer at [26]:
“26. Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant[53]. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.”
[Footnote Omitted.]
Three, the criterion of a “reasonable prospect” of success means a “real” rather than a “fanciful” prospect (Spencer at [22]).
Four, the concept of “no reasonable prospect of success”: “…does not mean that a case must only be hopeless or bound to fail to fall within this concept, although it is certainly included (Shammas v Canberra Institute of Technology [2014] FCA 71 at [50] per Foster J (“Shammas”), with reference to Singh v Super City Home Loans Pty Ltd [2011] FCA 646 (“Singh”) and Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”))”. (In Prosser v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga [2014] FCCA 1476 at [28]). (See also Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 (“Jefferson Ford”) in Hariady v Minister for Immigration [2018] FCCA 407 at [20]).
Five, and further, the Court should draw all reasonable inferences in favour of the non-moving party. (See Jefferson Ford at [124], [126] and [132]).
Six, there may be circumstances, for example, where an applicant in the substantive proceedings is not legally represented, as in the current case, where a Court should independently consider whether an arguable case, with reasonable prospects, based on the material before the Court, could be made out. (See Chung v University of Sydney [2001] FMCA 94 at [14], upheld on appeal in Yo Han Chung v University of Sydney & Ors [2002] FCA 186).
The Applicant’s Submissions
Before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. The Minister was represented by a solicitor in the employ of his solicitors.
Before the Court, after hearing the Minister’s submissions on his application in a case, the applicant submitted that it was “not fair” to say that she did not meet the relevant requirements for the waiver of the condition on her visa. She repeated what is set out in the grounds of the substantive application by saying that the delegate did not consider her situation and did not consider that she would have problems if she returned to China. The applicant also repeated that she wanted to stay in Australia for the purposes of medical treatment.
The applicant also explained that she had applied for “refugee status” (which was unsuccessful including on judicial review) and would be persecuted if she were to return to China. She argued that even if she did not meet the requirements “before”, the delegate did not look at the future. She emphasised this by asking: “…who knows what will happen in China?”.
Consideration
The terms of the grounds of the substantive application are set out above at [18]. In essence, the applicant complains that her reasons for requesting the waiver are “strong”, she provided compelling reasons to argue for the waiver, but the delegate did not accept, or was not persuaded by (“not show any concerns”), these reasons, or her evidence.
No particulars are provided to explain the grounds, nor did the applicant seek to particularise or explain her grounds before the Court so as to even indicate legal error on the part of the delegate. It is clear, in light of the applicant’s submissions to the Court, that the grounds were an expression of her grievance with the delegate’s decision.
As the Minister submits, the lack of particularity alone may be sufficient to warrant dismissal of the substantive application (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], SZNXA v Minister for Immigrationand Citizenship [2010] FCA 775 at [21], ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59], WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] (upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969); see also BQN16 & Anor v Minister for Immigration & Anor [2019] FCCA 481 at [4] and cases cited therein).
In any event, the grounds, even at best for the applicant, do not rise above an emphatic disagreement with the delegate’s reasoning and findings. As such they do not indicate, let alone reveal, some reasonable prospect of success in establishing jurisdictional error in the delegate’s decision.
As set out above, the delegate found that the applicant’s circumstances could be compassionate, but were not compelling. The delegate gave reasons for this, probative of the material before her.
That is, there was no evidence (after her 10 years in Australia) that even suggested she would be harmed by her former husband or that she would not be able to receive treatment for her medical conditions in China.
The delegate’s findings were all reasonably open on what was before her. She gave cogent reasons to explain those findings.
Nor is there any indication that the delegate misunderstood the term “compelling” as it appears in the condition 8534, or that she failed to properly apply it to the facts as found. (See Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [31]).
I also considered whether the assertions under the heading of “Orders sought by applicant” in the substantive application raised any argument which could have some reasonable prospect of success.
However the applicant’s assertions here, again, are no more than an emphatic expression of disagreement with the delegate’s reasoning and findings.
I have taken the view that the words “did not consider”, as they appear at 1 and 2 of the orders sought, are focused on the outcome of the delegate’s decision. That is, that notwithstanding what the applicant has described as her “strong fears”, the delegate did not accept that compelling circumstances existed to waive the condition.
However, I note, lest this be said to be some claim of a failure to engage with her claims, that the delegate did consider the applicant’s claims and evidence in the sense of an intellectual engagement with what the applicant had put forward.
For the sake of completeness, I also note in her decision record the delegate set out the terms of subregulation 2.05(5), and found, amongst other things, that the applicant did not meet the circumstances set out in that subregulation (CB 13.7). The application for the waiver of the condition was made on 6 December 2017. The delegate’s decision was made on 14 December 2017. Subregulation 2.05(5) was repealed on 1 July 2016 (Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016).
This means, given the date of the request for the waiver and the date of the delegate’s decision, the matters set out at that subregulation were no longer relevant, nor could they assist the applicant in obtaining the waiver. Before the Court the Minister suggested that it may be that the delegate referred to this subregulation because it was in existence at the time that the student guardian visa was granted to the applicant in 2007 and to which condition 8534 attached.
Whatever the intention of the delegate in referring to this subregulation, what remains is that at the time of the decision, it was not available to assist the applicant. In any event, on the evidence before the delegate, there was no error in the delegate making that finding because there was nothing to indicate that the applicant had been granted any of the visas referred to in the repealed reg.2.05(5).
Before the Court the applicant complained that although she had applied for, and been refused “refugee status” in Australia, she would still be harmed if she were to return to China. This submission does not assist the applicant now given that the delegate specifically addressed the applicant’s claim made in support of the waiver request that she feared her ex-husband’s violence in China and that that was the reason for her applying for a “protection visa” (see item 15.A. at CB 3).
Conclusion
In all, the Minister has established that there are no reasonable prospects of success in the substantive application. Before the Court the applicant did not point to any factual or evidentiary dispute at all, let alone one that would warrant the application proceeding to a final hearing.
The Minister’s application in a case should be allowed. The substantive application is to be dismissed pursuant to r.13.10(a) of the FCCA Rules. I will make the appropriate order.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 May 2020
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