Cheema v Minister for Immigration
[2010] FMCA 705
•6 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEEMA v MINISTER FOR IMMIGRATION | [2010] FMCA 705 |
| MIGRATION – Review of Minister’s decision not to waive a visa condition – where applicant came to Australia in 2000 on a 3 month tourist visa – condition 8503 prevented him from applying for any visa, other than a protection or temporary visa, whilst in Australia – where relationship with godson in Australia found not to constitute a major change in the applicant’s circumstances – whether Tribunal failed to accept compelling circumstances or failed to consider the information presented. |
| Migration Act 1958 (Cth), ss.41(2)(a), 41(2A) |
| Applicant: | BARINDER CHEEMA |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1336 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 September 2010 |
| Date of Last Submission: | 6 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1336 of 2010
| BARINDER CHEEMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application to review a decision of a delegate made on 26 May 2010, not to exercise a discretion provided to the Minister by s.41(2A) of the Migration Act1958 (Cth) (the “Act”) to waive a condition described in s.41(2)(a) of the Act. Mr Cheema arrived in Australia on 11 November 2000 on a three month tourist visa sub-class 676, upon which condition 8503 was imposed. Condition 8503 is a condition that 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 whilst he or she remains in Australia. Notwithstanding this, Mr Cheema remained in Australia beyond the visa validity period and on 22 December 2000 applied for protection. That application was refused on 23 February, 2001.
It would appear that Mr Cheema’s appeals against that decision wound their way through the Refugee Review Tribunal and the judicial review process until what is described by Ms Buchanan, who appears for the Minister, as “relatively recently”. Nearly 10 years for such an application to be finalised would appear at first sight to be bordering on the excessive. But no doubt there are good reasons for it.
Mr Cheema has a godson who is an Australian citizen called Jatin Sharma. Mr Sharma is now over the age of 18 years having been born on 6 January 1992 according to his driver’s licence [CB 9]. Mr Cheema has sought from the Minister the waiver of condition 8503 which still applies to his long expired visitor’s visa on the grounds that there is a close and strong bond between himself and Mr Sharma which provides the circumstances which the regulations and, in particular, reg.2.05(4) of the Migration Regulations 1994 set out as the criteria upon which the Minister would consider the waiving of the condition. The terms of the regulation are:
“2.05(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.”
When Mr Cheema made his application, he received a letter of acknowledgment dated 24 May 2010 [CB 11]. Thereafter a member of the Department wrote a submission to the delegate [CB 12-15]. The submission to the delegate contained details of the condition, details of the history of Mr Cheema’s stay in Australia and reference to the letters in support of Mr Cheema’s application that had been written, inter alia, by Mr Sharma. The minute proceeds to give an assessment of Mr Cheema against the sub-reg. 2.05(4).
One of the matters considered was whether the circumstances resulted in a major change to Mr Cheema’s circumstances, the first set of circumstances being the existence of his godson. The minute to the delegate was that the claim the godson needed Mr Cheema’s ongoing support and guidance did not constitute a major change to Mr Cheema’s circumstances. One would have difficulty in cavilling with that assessment.
Another of the matters considered by the minute was whether the circumstances were outside Mr Cheema’s control. This was responded to in the minute by saying:
“Mr Cheema made a conscious decision to remain in Australia beyond his visa validity period, apply for protection and become a godfather to his friend’s son. This decision was completely within Mr Cheema’s control.”
It is fair to say that as Mr Sharma was born in India in 1992, it is very possible that Mr Cheema became his godfather before he arrived in Australia, but certainly his decision to remain in Australia beyond his visa validity period was a matter completely within his own control. The minute suggested to the delegate that Mr Cheema’s grounds for not departing Australia were not compelling, but it recognised that there were some compassionate circumstances.
The delegate then considered the minute and signed it indicating that she had read it and approved the views expressed. Mr Cheema now challenges that decision on the basis:
(1) The delegate failed to accept the compelling circumstances.
(2) The delegate failed to consider the information presented.
The delegate’s task in relation to this matter was to consider whether or not the circumstances put forward by Mr Cheema were compelling. This is a matter of fact and degree. What is compelling to one may not be to another. Mr Cheema says that the delegate misunderstood the strong bond between himself and Mr Sharma, but it is for Mr Cheema to have satisfied the delegate that the bond was such that the circumstances became compelling. If he failed to do this, it is his concern and not an indication that the delegate erred in law.
In regard to the second ground of application, Mr Cheema told me today that the delegate had not considered the submission made by Mr Sharma himself [CB 5], but that is not correct, it was specifically referred to in the minute at [CB 13]. In my view all the matters raised by Mr Cheema in his request were taken into account by the delegate when she came to her decision. The decision is a matter of discretion. There is no evidence presented to me that would satisfy me that the discretion miscarried. The application is dismissed. The applicant is to pay the first respondent’s costs which I assess in the sum of $2,500.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 14 September 2010
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