BWO20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 557
•24 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 557
File number: SYG 455 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 24 June 2024 Catchwords: MIGRATION – application for judicial review of a decision made by a delegate of the Minister to refuse to waive condition 8503 – whether the delegate erred in assessing whether there were compelling circumstances – where the applicants disagree with the factual findings and conclusions of the delegate – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) reg 2.05, Sch 8
Cases cited: Boutros v Minister for Immigration and Border Protection [2017] FCCA 2271
Boutros v Minister for Immigration and Border Protection [2019] FCA 851
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 11 June 2024 Place: Perth (via Microsoft Teams) Applicants: The second applicant appeared in person Counsel for the Respondent: Ms S Sangha Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 455 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWO20
First Applicant
BWP20
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants are to pay the respondent’s costs fixed in the amount of $4,800.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants arrived in Australia as holders of Visitor (Subclass 679) visas (visitor visas). Those visas were subject to condition 8503, commonly referred to as the ‘no further stay’ condition, which precluded them from being granted another substantive visa, other than a protection visa, while they remained in Australia. The applicants applied for condition 8503 to be waived so that they could seek a visa that would enable them to remain in Australia and care for the first applicant’s mother, who was an Australian citizen. That application was refused by a delegate of the Minister. The applicants did not have any right to seek merits review of the delegate’s decision and instead they applied for judicial review of the delegate’s decision. The Court has jurisdiction to review the delegate’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicants rely on two grounds of review which allege that the delegate made a jurisdictional error:
(a)by failing to see that the circumstances of the first applicant’s mother were exceptional and compelling and that the first applicant’s mother had no access to services available in Australia; and
(b)by misunderstanding the severity of the first applicant’s mother’s health conditions and the need for the first applicant to be her carer.
For the reasons explained below, the applicants have not established that the delegate’s decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
VISA APPLICATIONS AND DECISIONS
The first applicant is the mother of the second applicant, who is now an adult.
The applicants entered Australia in 2012 on visitor visas that were valid for three months from their date of arrival.
Application for waiver of condition 8503
On 23 January 2019 the applicants applied for waiver of condition 8503. In the first applicant’s application form:
(a)she gave the following information about any major change in her circumstances since the grant of her visa:
My mother is now totally dependent on me, I am dedicated to her. I bath her and attend to personal hygiene and I’m irreplaceable.
(b)she gave the following information about the reasons she had no control over these circumstances:
It was out of my control my mother’s health has deteriorated. I’m looking after her in all aspects, she needs my care on day to day basis.
(c)she gave the following information about why her circumstances were compassionate and compelling:
My mother is now physically mentally and psychologically dependent on me, any separating will harm her. She is very attached to me and she has no female replacement.
The applicants provided some documents in support of their application. One such document was a letter from the first applicant’s mother’s doctor dated 19 January 2019 which said:
[The first applicant’s mother] has been a patient of this practice since June 2012. She suffers from chronic medical conditions. Her main support, both from a physical and mental health perspective, is her daughter… [Her daughter] provides personal care and assistance with all activities of daily living to her mother. [The first applicant’s mother’s] health would be greatly impacted if [the first applicant] were not able to continue supporting her.
Another document provided in support of the application was a letter of support from the first applicant’s cousin, who was, at the time of writing, about to become a registered nurse and who had 17 years’ experience as an aged care worker. The letter stated that the first applicant was looking after the personal care needs of her mother and that both the first applicant and her mother were feeling depressed at the thought of separation.
The delegate’s decision
The delegate made a decision on 24 January 2019 refusing to grant the applicants a waiver of condition 8503.
The delegate identified that the applicants requested a waiver of the no further stay condition because the first applicant’s mother was dependent on the first applicant for day to day support and assistance and they therefore wanted to remain in Australia permanently and lodge an application for a carer visa. The delegate further identified that the condition 8503 could be waived if the circumstances of reg 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) were met.
The delegate considered the requirement that there must be compelling and compassionate circumstances that have developed over which the applicants had no control and which resulted in a major change to the applicants’ circumstances.
The delegate accepted that the first applicant’s mother’s ongoing medical conditions were compassionate. The delegate then proceeded to consider whether the first applicant’s circumstances were also compelling. In so doing, the delegate noted that the term ‘compelling’ was not defined in the Migration Act and that it should be given its ordinary meaning. This required that the circumstances must be sufficiently forceful to lead the decision-maker to make a decision to waive the condition.
After considering the information in the first applicant’s application form, the letter from her mother’s doctor and the letter of support from her cousin, the delegate accepted that the first applicant’s mother’s health would be impacted if the first applicant were not able to support her. However, the delegate considered that, if the applicants were unable to support her, as an Australian citizen, the first applicant’s mother had options to seek access to services available in Australia. While the delegate accepted the first applicant had a desire to support her mother and a preference to remain in Australia and apply for a carer visa onshore, the delegate considered that there was an offshore option available to the applicants. Any period of separation, which may cause distress, would be temporary in nature.
The delegate found that the applicants’ circumstances were not sufficiently forceful to waive the condition. Therefore, the delegate concluded that the circumstances in reg 2.05(4) of the Regulations were not met by the applicants.
JUDICIAL REVIEW APPLICATION
The applicants filed their application on 27 February 2019 and therefore made the application within 35 days of the date of the delegate’s decision, as required by s 477(1) of the Migration Act.
The applicants raise two grounds in their application (reproduced without alteration):
1. The Delegate of the Minister failed to see that the circumstances of my mother are exceptional and compelling and my mother has no access to services available in Australia and that I have been her carer since I came to Australia and now her health deteriorated badly.
2. The Department misunderstood the severity of my mother’s health and her need for me as her carer.
The evidence before the Court comprises an affidavit of the first applicant filed on 27 February 2019, annexing a copy of the delegate’s decision, the court book filed on behalf of the Minister on 7 June 2019 and an affidavit of service of Jessica Elizabeth Schultz filed on behalf of the Minister on 4 June 2024.
HEARING OF THE JUDICIAL REVIEW APPLICATION
The application for judicial review was listed for hearing on 11 June 2024 by Microsoft Teams. The applicants did not connect to the hearing by Microsoft Teams, however, my associate called the applicants on the telephone number provided in the application and the second applicant participated in the hearing by telephone.
There was some confusion at the start of the hearing as to which of the two applicants was appearing at the hearing and whether the second applicant wanted the first applicant connected to the hearing. However, after that confusion was alleviated the second applicant confirmed that she was appearing at the hearing on behalf of both applicants.
The second applicant requested that the hearing be adjourned to another day, so that she could talk to a lawyer and review the materials. I declined this request. The application has been on foot for over five years. The applicants were notified of the hearing date in February 2024 and the second applicant attended a callover in January 2024, at which I explained to her the directions that were in place and the documents that they were required to file ahead of the hearing. It was the applicants’ responsibility to be ready for the hearing and to consult a lawyer in a timely manner if that was what they wished to do. There was no basis for adjourning the hearing to another day.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the delegate’s decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the delegate’s decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the delegate’s decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT), where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Relevant legislation
Condition 8503 is set out in Schedule 8 of the Regulations and, at the time the applicants were granted visitor visas in 2012, it provided:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, whilst the holder remains in Australia.
The circumstances in which the Minister may waive condition 8503 are set out in reg 2.05(4) of the Regulations, which relevantly provides:
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.
Matters raised in the second applicant’s oral submissions at the hearing
At the hearing I reminded the second applicant of the grounds in the application and invited her to make submissions addressing those grounds or otherwise explaining why she believes the delegate made a jurisdictional error.
The second applicant submitted that the applicants had already provided a lot of information and it was only she and her mother who were available to assist her grandmother. She also said that her grandmother passed away in February 2023. She submitted that the delegate made the wrong decision and should be punished. She submitted that the application was very straightforward and should have been accepted.
Insofar as these submissions address the delegate’s decision, they simply express disagreement with the delegate’s decision. Disagreement with a decision, even emphatic disagreement, does not, of itself, establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
I have no evidence before me in relation to the death of the first applicant’s mother and second applicant’s grandmother. However, I have no reason to doubt the information provided by the second applicant that her grandmother has passed away. The grandmother’s death is a circumstance that changed after the delegate’s decision and does not affect whether or not there is a jurisdictional error in the delegate’s decision. Whether the delegate’s decision is affected by jurisdictional error is to be assessed based on the circumstances that existed at the time of that decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J).
Counsel for the Minister submitted that the applicants’ pursuit of this judicial review application in circumstances where the claimed basis for making the application for waiver of condition 8503 no longer exists is an abuse of process. This submission was raised in the course of requesting a quick decision to dispose of this application. When I invited Counsel for the Minister to address whether the grant of relief would be futile if I find a jurisdictional error in the delegate’s decision, Counsel for the Minister submitted that if the matter were to be remitted to the delegate, the applicants would be invited to make further submissions, which would then be considered by the delegate. There is therefore no submission before me that the grant of relief, if jurisdictional error is established, would be futile. The death of the first applicant’s mother and second applicant’s grandmother is not determinative of the outcome of this judicial review application.
The matters raised in the second applicant’s oral submissions do not establish jurisdictional error.
Ground 1
By ground 1, the applicants assert that the delegate erred by failing to consider that the first applicant’s mother’s circumstances were exceptional and compelling, and that she could not access services in Australia, that the first applicant had cared for her mother since her arrival in Australia and that the first applicant’s mother’s health had deteriorated.
I accept the Minister’s submission in response that this ground amounts to an expression of disagreement with the delegate’s decision and invites the Court to engage in impermissible merits review. As discussed above, disagreement with the delegate’s decision does not, of itself, give rise to jurisdictional error.
Further, the Court cannot review the merits of the delegate’s decision and cannot determine for itself whether there are compassionate and compelling circumstances. As Judge Smith said in Boutros v Minister for Immigration and Border Protection [2017] FCCA 2271 at [9]:
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.
Those comments were approved on appeal in Boutros v Minister for Immigration and Border Protection [2019] FCA 851 (Boutros) at [25]-[26].
In Boutros, Perry J also considered the meaning of the term ‘compelling’ and referred to the High Court’s judgment in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50, where French CJ, Bell, Keane and Gordon JJ said at [31] (footnotes omitted):
… 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.
The delegate’s understanding of the term compelling is consistent with this explanation. The delegate said:
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 a decision-maker to make a decision to waive the condition.
To the extent that the ground asserts that the delegate failed to consider certain factors, it is not established. The applicants assert that the delegate failed to consider that the first applicant’s mother’s circumstances were ‘exceptional and compelling’. Regulation 2.05(4) of the Regulations requires that ‘compelling and compassionate’ circumstances have developed. It does not require consideration of whether there were ‘exceptional’ circumstances. The delegate considered whether the circumstances were compelling and compassionate, finding that the circumstances were compassionate but not compelling. As discussed in the context of ground 2 below, the delegate’s finding that there were not compelling circumstances was open to the delegate on the evidence.
The applicants assert that the delegate failed to consider that the first applicant’s mother could not access services in Australia. However, there was no claim before the delegate to the effect that the first applicant’s Australian citizen mother could not access professional support and health care services available to Australian citizens. The delegate was satisfied that the first applicant’s mother would be able to access services in Australia.
The applicants assert that the delegate failed to consider that the first applicant had cared for her mother since her arrival in Australia and that the first applicant’s mother’s health had deteriorated. The delegate considered and accepted that the first applicant cared for her mother and that the first applicant’s mother’s health had deteriorated.
The delegate therefore did not make a jurisdictional error by failing to consider the matters referred to in the applicants’ ground. Ground 1 is not established.
Ground 2
By ground 2, the applicants assert that the delegate misunderstood the severity of the first applicant’s mother’s medical conditions and the need for the first applicant to be her carer.
The Minister submitted that the ground constitutes disagreement with the delegate’s assessment of evidence and findings, and referred again to the delegate’s acceptance that the first applicant’s mother’s health would be impacted by a decision not to waive condition 8503, but that, as an Australian citizen, she would be able to access services in Australia.
I do not accept that ground 2 gives rise to jurisdictional error. If the first applicant’s mother’s medical conditions were more severe than the delegate appreciated, that would be a mistake of fact and would not, without more, amount to jurisdictional error. In assessing whether the ground might give rise to any jurisdictional error, I have treated the ground as an assertion of illogicality or irrationality. A decision may be illogical or irrational if it is one that no logical or rational person may reach on the material before the decision-maker, if only one conclusion is open on the evidence and the decision-maker does not reach that conclusion, if the decision was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135].
The findings that the delegate made in relation to the first applicant’s mother’s medical condition were open on the evidence before the delegate and cannot be said to be illogical or irrational.
As can be seen from the extracts of the application form and the evidence above, minimal detail was given by the applicants about the first applicant’s mother’s medical conditions. I make the following observations about the evidence before the delegate and the findings made by the delegate:
(a)The only information about the nature of the applicant’s mother’s medical condition was that she suffered from ‘chronic medical conditions’. The delegate accepted that the first applicant’s mother had ongoing medical conditions.
(b)There was evidence that the first applicant’s mother’s health would be greatly impacted if the first applicant could not continue to support her mother, without any meaningful detail to enable the delegate to form any view as to precisely what that impact would be. The delegate accepted that the first applicant’s mother’s health would be impacted if the first applicant could not support her, but also found that any separation would be temporary as the applicants had options available to them to apply for a visa offshore.
(c)While there was evidence that the first applicant provided support with the activities of daily living, and that the first applicant considered she was the only person who could provide that support, the only specific examples provided by the first applicant was that she bathed her mother and assisted with personal hygiene. The delegate made no finding that the first applicant’s mother did not need assistance with the activities of daily living, but rather found that she would be entitled to access services in Australia. The evidence before the delegate did not explain why assistance with the activities of daily living could not be provided to the first applicant’s mother, who was an Australian citizen, through services that are available to Australian citizens.
As discussed above, on the basis of these findings, the delegate accepted that the circumstances were ‘compassionate’ but not ‘compelling’. While it may have been open to find that the first applicant’s mother’s health conditions gave rise to circumstances that were compelling, that was not the only possible conclusion in this matter. The delegate’s findings were consistent with the available evidence and the conclusions based on those findings were open to a rational and logical decision-maker.
Ground 2 is not established.
CONCLUSION
The applicants have not established that the delegate’s decision was affected by jurisdictional error. It follows that the application to this Court must be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 June 2024
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