CDV16 v Minister for Immigration

[2018] FCCA 2526

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDV16 v MINISTER FOR IMMIGRATION [2018] FCCA 2526

Catchwords:
MIGRATION – Application to review decision of a delegate of the Respondent not to waive condition 8503 – whether delegate ignored evidence or claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.41(2)(a)

Migration Regulations 1994 (Cth), reg.2.05(4), Schedule 8 condition 8503

Cases cited:

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16;

(2014) 309 ALR 67

Applicant: CDV16

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2093 of 2016

Judgment of: Judge Barnes

Hearing date: 24 August 2018

Delivered at: Sydney

Delivered on: 24 August 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2093 of 2016

CDV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for judicial review of a decision of a delegate of the Respondent Minister dated 27 July 2016 to refuse to waive visa condition 8503 (the “no further stay” condition), which had been imposed on the Applicant’s visitor visa.

2. Condition 8503 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) has the effect that the holder of a visa subject to this condition is not entitled to be granted a substantive visa, other than a protection visa, whilst remaining in Australia. However, under s.41(2)(a) of the Migration Act 1958 (Cth) (the Act) and reg.2.05 of the Regulations, the Minister may waive such condition in specified circumstances.

3. Under reg.2.05(4), the circumstances are, relevantly, that since the person was granted the visa subject to the condition, compelling and compassionate circumstances have developed over which the person had no control and that resulted in a major change to the person’s circumstances; and, if the Minister has previously refused to waive such condition, that the Minister is also satisfied that the circumstances are substantially different from those previously considered. Any waiver request must be in writing.

4. The Applicant arrived in Australia in April 2013 as the holder of a visitor visa to which condition 8503 applied.  He lodged an application for a protection visa, which was unsuccessful.  That decision was affirmed by the then Refugee Review Tribunal.

5. Relevantly, for present purposes, on 19 March 2015 the Applicant applied to the Minister (in writing) for a waiver of condition 8503.  In his application he sought a waiver on the basis that in August 2014 he had married an Australian citizen with whom he had commenced a relationship in September 2013.  He claimed that he wished to lodge a partner visa application.  He claimed that his wife had multiple medical conditions and that he was her carer and a father figure to her children.  He provided a supporting letter from a medical practitioner.  He also claimed (without elaboration) that there was a risk of harm to him if he returned to Egypt. 

6. On 26 March 2015, a delegate of the Minister refused to waive condition 8503.  The Applicant sought judicial review of that decision. 

7. In addition, on 30 March 2015 the Applicant lodged a second application for waiver, relying in essence on the same circumstances.  A letter from his migration agent addressed these circumstances.  It was claimed that the Applicant’s wife had various medical conditions (back pain and other ailments) and that the Applicant provided her with care as well as social, psychological and financial support to her and her youngest son.  The claim that he feared harm in Egypt was repeated.  Documentation provided to the Department included a copy of an excerpt from the Department of Foreign Affairs and Trade website, smartraveller.gov.au, being an update on Egypt as at 6 March 2015 as well as a copy of the Applicant’s marriage certificate and a copy of the letter from his wife’s medical practitioner dated 18 March 2015. 

8. In response to the second waiver request, on 10 April 2015 a delegate of the Minister refused to waive condition 8503 on the basis that the Applicant’s circumstances were not substantially different from his previous application. 

9. On 27 April 2016 Judge Smith made orders by consent, remitting the first waiver application for reconsideration by the delegate on the basis of a Ministerial concession that the delegate had asked the wrong question by misconstruing the words “compelling and compassionate circumstances”, specifically by considering whether the circumstances met departmental policy in substitution for the question asked by the Regulations.

10. The delegate wrote to the Applicant by letters of 18 and 23 May 2016 (sent to different addresses) in connection with reconsideration of his waiver request and invited him to provide any further information he wished to have considered.  There is no evidence of any response to this invitation.

11. By a further letter of 14 June 2016 the Applicant was invited to comment on adverse information received by the Department.  The letter stated that the Department had conducted checks to confirm the information the Applicant had provided in his waiver request and that during this process had received information which did not support the request.  It referred to the fact that among the claims presented in the waiver request were claims that the Applicant’s wife had been reliant on him as her carer due to her various medical issues and that he had provided social, psychological and financial help to her and provided a father figure to his stepson. 

12. The letter of 14 June 2016 put to the Applicant that the Department had received information that he was no longer in a relationship with his wife and that they had not been residing together since October 2015.  It explained that this did not support his claims and gave him the opportunity to provide comment within 28 days. 

13. In the decision notified to the Applicant on 27 July 2016, a delegate refused to waive the “no further stay” condition.  The delegate referred to having received adverse information on 23 May 2016 which was put to the Applicant on 14 June 2016 for comment and continued:

    On 11/07/2016 we received your correspondence in relation to the adverse information received.  Your letter claims that the information is incorrect in that you and your wife officially separated on 29/05/2016.

14. The Applicant’s letter received by the Department on 11 July 2016 is not in the courtbook.  The solicitor for the Respondent advised the court that the Department cannot locate this letter.  I will return to this issue in considering the grounds relied on in these proceedings.

15. In the decision record of 27 July 2016 the delegate went on to point out that the basis for the waiver request was that the Applicant wished to remain in Australia to act as his wife’s carer.  The delegate acknowledged that the Applicant and his wife had been residing together as a married couple previously, but found that despite the Applicant’s disagreement regarding the date of separation, the fact remained that by the Applicant’s own admission, the relationship had officially ceased.  Therefore the delegate gave no weight to the Applicant’s claims that he resided with his wife and acted as her carer as well as acting as a father figure to her children. 

16. The delegate considered the Applicant’s claim there was a risk of harm if he returned to Egypt, but found that the information he had provided was general and did not demonstrate that he would be in any specific danger if he departed Australia and returned to Egypt. 

17. The delegate found that the information presented did not lead him to consider that the Applicant’s circumstances were “forceful or driving, especially to a course of action to waive the no further stay condition”. The delegate concluded that, after consideration of the information provided to support the claims, he did not find the Applicant’s circumstances compelling and did not accept that the circumstances met the requirements to waive condition 8503 under reg.2.05(4). Therefore the delegate refused the request for a waiver of condition 8503.

18. The Applicant sought review by application filed in this court on 4 August 2016.  He filed a supporting affidavit which attached a copy of the decision notification.  On 13 June 2017 he filed a further affidavit attaching a statement which he adopted.  He was cross-examined.  A bundle of documents was annexed to the affidavit of 13 June 2017, consisting of a STARTTS report in relation to the Applicant dated 12 January 2016 addressed “To Whom It May Concern” in relation to the Applicant’s request for secure accommodation and financial assistance; a letter said to be from his wife dated “3/2015” (sic) also addressed to “To whom it may concern” seeking financial assistance and referring to hardship and financial difficulties experienced by her and the Applicant; an electricity account dated June 2015 addressed to the Applicant; and a letter from a specialist doctor dated 8 May 2017 in relation to the Applicant’s symptoms of sleep disordered breathing.  I asked the Applicant about these documents.  He thought he might have sent them to the Department, but he was not sure.

19. Before considering the grounds of review I note that in circumstances where I was informed by the solicitor for the Minister that the Department did not have, and could not locate, a copy of the Applicant’s letter received by the Department on 11 July 2016 responding to the Department’s concerns as referred to in the delegate’s reasons for decision, the Applicant was given the opportunity to give evidence in this respect, in particular in relation to his response to the Department to the adverse information that was put to him by letter of 14 June 2016 to the effect that that he and his wife were no longer in a relationship and that the information the Department had was that they had not been residing together since October 2015.

20. The Applicant’s evidence was consistent with the delegate’s description of his reply received by the Department on 11 July 2016 as correspondence and a letter which stated that the information from the Department was incorrect, in that the Applicant stated that he and his wife had officially separated on 29 May 2016.  The Applicant acknowledged sending such a response.

21. In his evidence and in cross-examination, the Applicant confirmed that he and his wife had separated in May 2016.  He explained that his response to the Department of July 2016 consisted of one document, which he described as a declaration, in which he also proffered contact details for four friends who could attest to the truth of his claims.  He did not suggest that his response went beyond addressing his marital status and the time of separation from his wife and providing information as to named friends who could give supporting information in relation to his previous relationship.  He also confirmed that the substance of what he informed the Department in his response received by the Department on 11 July 2016 consisted of what he told the court and what he stated in the statement attached to his affidavit of 13 June 2017.

22. In that document, he explained that, soon after he was informed of the April 2016 remittal by this court (which he recalled was sometime in May 2016), his wife read the letter and said they needed to see a lawyer.  The lawyer read the letter to them and informed him he had won the case.  His wife visited her doctor.  She then told the Applicant she no longer wanted to live with him and that she wanted a divorce from him.  She “kicked [him] out” of the house.  He claimed that friends tried to intervene get them back together.  He also suggested that his wife had come to the conclusion that she would only accept getting back with him for him to get residency in Australia for the price of AU$50,000.  He refused to pay this amount, claiming that their marriage was only for the sake of love. 

23. He also stated in the statement attached to his affidavit that a week after receiving the letter stating he had won the case, his wife had approached the Department of Immigration and “filed a report against” him, telling Immigration that he had left the house 10 months earlier and that she did not know anything about him.  He claimed she had fabricated these claims so that he would get kicked out of Australia.  He explained that he had been still residing with his wife in the house “much longer” (that is, after October 2015) and that the friends for whom he had provided contact details could attest to this.  However the Applicant confirmed that he was “kicked out” of the house in May 2016.

24. In his statement and his oral evidence, the Applicant also explained that subsequently his wife had successfully applied for a divorce.  He complained of the effect of the divorce on him.  In oral submissions, the Applicant also complained of the effect of the Department’s actions on his relationship with his former wife. 

25. Although it is extremely unfortunate that the Department is apparently unable to locate the Applicant’s response received by the Department on 11 July 2016, he has been given, and has taken, the opportunity to explain precisely what he provided to the Department in response to the adverse information.  The Applicant’s evidence in this respect does not indicate or raise any concern that the delegate overlooked any fact or evidence.

26. It is the case that in the reasons the delegate did not refer in any detail to the content of the letter received by the Department on 11 July 2016 beyond the reference to the fact of separation and the Applicant’s claim that this occurred on 29 May 2016 (rather than in October 2015).  However this does not establish that the delegate overlooked relevant evidence or claims in circumstances where, as the Applicant has confirmed today, in his letter he told the delegate that he and his wife separated in May 2016 and his evidence was that his friends could support his claims that he and his wife were together until May 2016.  What was relevant for the purposes of the decision and was taken into account by the delegate, was the Applicant’s concession that the relationship had broken down, in the sense that the parties had separated.  That was so, notwithstanding that the Department had earlier received different advice as to the date of separation.  In these circumstances, it was not necessary for the delegate to refer further to any additional information in the Applicant’s response. 

27. It is not disputed that the parties had separated prior to the delegate’s decision of 27 July 2016.  There is no suggestion that there was any other relevant consideration or evidence included in the Applicant’s response as described in his oral evidence. 

28. Hence, on the material before the court and despite the unfortunate absence from the courtbook of a copy of the Applicant’s response to the adverse information, it has not been established that the delegate fell into jurisdictional error in relation to this letter or the information therein. 

29. Turning to the grounds in the application as elaborated on in oral submissions, the first ground is a contention that the decision was affected by error of law.  It is contended that the Department “originally had no right to refuse the second waiver request” lodged on 30 March 2015 as it ignored the medical certificate supporting the application. 

30. Insofar as this is a complaint about the delegate’s decision of 10 April 2015 in relation to the application of 30 March 2015, the subject of these proceedings is the delegate’s decision of 27 July 2016.

31. In any event, as explained in his oral submissions, the Applicant was referring in this ground to the medical certificate dated 18 March 2015 from Dr Kanawati which related to his wife’s medical conditions and referred to the fact that the Applicant was best suited to being her carer. The delegate’s decision of 10 April 2015 acknowledged receipt of this letter but the decision turned only on reg.2.05(4)(b) and whether circumstances were substantially different from those previously considered.

32. Insofar as this ground may be taken as a contention that the delegate should have had regard to the medical certificate in the decision of 27 July 2016, the delegate acknowledged that the Applicant had provided documents and information including, relevantly, acknowledging the Applicant’s claims that his wife suffered from medical conditions and that he was her carer.  However, in circumstances where the subsequent evidence from the Applicant was that the relationship had ceased, it was not necessary for the delegate to refer expressly to the medical report of 18 March 2015.  I note generally that it is not necessary for a decision-maker to refer expressly to every piece of evidence and every contention made by an applicant.  It was open to the delegate to place no weight on the Applicant’s claims regarding his support for his wife as a circumstance supporting waiver of condition 8503 where, as conceded by the Applicant, he was no longer in a relationship with his wife at the time of the 27 July 2016 decision.  In such circumstances, the medical certificate was not material to the delegate’s assessment of the Applicant’s claims.  In the circumstances of this case, even if the delegate had failed to consider the medical evidence, it was not a critical piece of evidence that had to be referred to expressly consistent with the principles considered in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [56]. Any failure to consider the medical certificate could not survive the delegate’s findings that the Applicant and his wife were no longer in a relationship and that therefore no weight was given to the Applicant’s claims that he resided with his wife and had acted as her carer as well as a father figure to her children.

33. The remarks that the Applicant made today, to the effect that he thought he might have sent a copy of the bundle of documents annexed to his affidavit of 13 June 2017 to the Department (although he was not sure), is not such as to establish that the delegate failed to take into account any integer of his claims or, indeed, any critical centrally relevant evidence in a manner constituting jurisdictional error.  Insofar as he suggested that he may have given this bundle of documents to the Department, if he did so, he cannot have done so prior to the delegate’s decision, as the specialist’s report is dated 8 May 2017.  Also I note that none of these documents address the issues that he relied on in support of his waiver request. 

34. Ground 1 is not made out.

35. Ground 2 is that the information received by the Department that the Applicant and his wife were separated “is because of the negligence from the Department which caused harm and trauma to both”.

36. The Applicant expressed concern in oral submissions today in asking why, if he and his wife had separated in October 2015, had the Department waited until June 2016 to raise this with him.  He also expressed concern that what occurred after the remittal had in some way had a negative effect on him and his wife and had perhaps contributed in some way to their separation.  Such concerns are not, however, indicative of jurisdictional error. 

37. The evidence (including that of the Applicant) does not suggest that the Department was told about a separation in October 2015 prior to May 2016.  In any event, this became relevant when the delegate started to consider afresh the Applicant’s waiver application after the remittal.  It did so in May 2016 and wrote to the Applicant in June 2016. 

38. Further, consistent with the delegate’s decision, the letter annexed to the Applicant’s affidavit of 13 June 2017 suggests that his wife approached the Department in April or May 2016 (after the remittal) and that she (falsely) told the Department that they had separated in October 2015 (rather than in May 2016).  In any event, the actual date of separation does not have to be determined for the purpose of the present proceeding.

1. Further, even if there had been some “negligence” in this respect on the part of the Department (which has not been established on the material before the court) that is not indicative of jurisdictional error. 

2. I also note that there is no suggestion that the Applicant raised any concerns with the Department such as he now raises in ground 2 of the application in support of his waiver application.  Nor did he suggest that he had done so in his evidence today.  This ground is not made out. 

3. The third ground in the application is that the delegate “failed to consider the risk of harm in returning to Egypt contrary to the smart traveller information available at the time of the application”.  The ground suggests that this information was included in a supplementary courtbook filed in April 2016.  This appears to be a reference to a courtbook in relation to the earlier judicial review proceedings.

4. In any event, included in the courtbook for these proceedings is a copy of the Smart Traveller website information dated 6 March 2015 provided to the Department by the Applicant’s migration agent on 30 March 2015.  It was provided in support of the agent’s claim that the Applicant did not believe it was safe in Egypt and his observation that DFAT was advising Australian citizens to reconsider their need to travel to Egypt in what were said to be tumultuous and dangerous times in that country. 

5. First, I note that while the Applicant had unsuccessfully applied for a protection visa, the delegate did not rely on that fact or even refer to it in the context of the waiver decision the subject of these proceedings. Rather, appropriately, the delegate considered the Applicant’s claim that he was at risk of harm in returning to Egypt in light of the information he provided in support of the waiver application.  There is no suggestion that any other information was provided to the delegate in that respect.  It was reasonably open to the delegate to regard the information provided as general information and to be of the view that it did not demonstrate that the Applicant would be in any specific danger if he were to depart Australia and to return to Egypt.  That information was 2015 information that was general in nature and did not relate to the specific circumstances of the Applicant or a person such as the Applicant.  No jurisdictional error is established on this basis.  Ground 3 is not made out.

6. Finally, in submissions in reply the Applicant referred to the fact he had been in Australia without causing any problem or committing any offence and wished to stay in Australia.  I explained to him that the court had no power to grant him a waiver or a visa, or to take humanitarian grounds into consideration in these proceedings.  He then complained about the Department’s actions and the fact that when his waiver application was initially refused, the Department had told him that he had to leave Australia.  He claimed that this caused stress and unhappiness for him and, implicitly, for his then wife and that this should have been taken into account. 

7. These concerns are not matters that the Applicant raised with the Department in support of the waiver application or at the time of the 2016 reconsideration that arose clearly on the material before the delegate.  The Applicant’s concerns in this respect do not establish jurisdictional error. 

8. As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.  I will hear submissions in relation to costs.

9. The Applicant has been unsuccessful.  It is appropriate he meet the Respondent’s costs.  The amount sought is reasonable in light of the nature of this and other similar matters.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  7 September 2018