Dannawi v Minister for Immigration
[2017] FCCA 286
•14 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANNAWI & ANOR v MINISTER FOR IMMIGRATION | [2017] FCCA 286 |
| Catchwords: MIGRATION – Review of decision by a delegate of the Minister for Immigration and Border Protection – whether the decision of the delegate of the Minister for Immigration and Border Protection is affected by jurisdictional error – whether the delegate of the Minister for Immigration and Border Protection erred by misconstruing or misapplying regulation 2.05(4) of the Migration Regulations 1994 (Cth) – whether the delegate of the Minister for Immigration and Border Protection asked the wrong question – whether the applicants were denied procedural fairness – whether the delegate of the Minister for Immigration and Border Protection failed to take into account a relevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth), reg.2.05 |
| Cases cited: Thongpraphai v Minister for Immigration [2000] FCA 1590 Terera v Minister for Immigration (2003) 135 FCR 335 Adriayani v Minister for Immigration [2011] FCA 117 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| First Applicant: | HIBA DANNAWI |
| Second Applicant: | ROWAYDA ELSAITARI |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1849 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 15 February 2017 |
| Date of Last Submission: | 15 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Patrick Knowles |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Counsel for the Respondents: | Mr Mark Cleary |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1849 of 2015
| HIBA DANNAWI |
First Applicant
| ROWAYDA ELSAITARI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the first respondent dated 15 June 2015 (“the Delegate”).
The first applicant applied to waive the ‘No Further Stay’ condition imposed on her visitor visa (“the Applicant”) on the basis that she is required to care for her elderly mother, who is suffering from a multitude of health ailments. The second applicant is the daughter of the Applicant and her claims are entirely dependent on those of the Applicant.
Background
On 15 May 2013, the Applicant arrived in Australia on a visitor visa.
On 11 June 2015, the Applicant lodged an application with the Department of Immigration and Citizenship (“the Department”) to waive the ‘No Further Stay’ condition.
On 15 June 2015, the Delegate refused the Applicant’s application to waive the ‘No Further Stay’ condition.
On 6 July 2015, the Applicant filed an application in this Court seeking judicial review of the Delegate’s decision.
Legislative framework
Pursuant to s.41(2A), if satisfied a number of matters prescribed in reg.2.05(4) of the Migration Regulations 1994 (“the Regulations”), the first respondent may waive a condition of a kind prescribed in s.41(2)(a) of the Act. Relevantly, those sections provide as follows:
“Conditions on visas
…
General rules about conditions
…
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, 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) while he or she remains in Australia; or
…
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).”
Regulation 2.05(4) of the Regulations is as follows:
“(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.”
Procedural History
The procedural history of this matter is accurately set out in counsel for the applicant’s submissions as follows:
“2. The Applicants arrived in Australia on 15 May 2013 (CB 1). Their visitors visas were subject to condition 8503, which is known as a “no further stay” condition. That condition had the effect that the Applicants were not, after entering Australia, entitled to the grant of a substantive visa, other than a protection visa, whilst they remained in Australia: s 41(2)(a) of the Act and schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”).
3. On 11 June 2015, the Applicants made a request to the Minister to waive the no further stay condition (CB 1-2). That Application relevantly stated that:
(a) The First Applicant’s father had died;
(b) The First Applicant was the sole carer for her mother, who suffers from serious medical conditions and needs assistance on a “day to day basis”; and
(c) The First Applicant is the only person available to act as her mother’s carer and the First Applicant’s siblings are unable to assist in this care (CB 2).
4. In support of the waiver application, the Applicants provided a number of documents, including:
(a) A letter dated 18 September 2014 from Dr Sarah Abdo, an endocrinologist. The letter detailed the diabetes management program undertaken by the First Applicant’s father (CB 25);
(b) Correspondence between the First Applicant and the Department of Immigration and Border Protection regarding a request for the exercise of the Minister’s personal power under s 417 of the Act;
(c) A statement from Dr Marwon Aloe stating that the First Applicant’s sister, Rawya Darinawi, suffered from a range of medical conditions and was unable to care for her mother (CB 24); and
(d) A statement from Dr Kurdo Saeed, General Practitioner, stating that the First Applicant’s mother was 88 years old, regularly attends his medical centre, and has suffered from a range of conditions between 2009 and 2015 including arterial fibrillation (an abnormal heart rhythm), renal impairment and arthritis (CB 31-33).
DECISION OF THE MINISTER TO REFUSE TO WAIVE THE CONDITION
5. The circumstances in which the Minister may, pursuant to s 41(2A) of the Act, waive the “no further stay condition” are prescribed by Reg 2.05(4) of the Regulations. Relevantly, in order to waive the condition in this case, the Minister had to be satisfied that:
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.
6. The delegate of the Minister accepted that the First Applicant’s mother suffered from “a multitude of health ailments”. However the delegate found that the Applicants had not provided information to establish that the First Applicant’s mother “requires constant care” or that the “first applicant is required to provide that care”. The delegate further stated that he was not satisfied that there had been a change in the health of the First Applicant’s mother, and hence a change in the Applicants’ circumstances, since the grant of their visitors visas (CB 35).
7. The delegate went on to state:
Whilst I acknowledge that the circumstances around your Mother's health are compassionate in nature and you would like to remain in Australia to care for her, I must also make a finding that the circumstances are compelling. Compelling circumstances are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia. Based on the information provided by you, I do not accept that your circumstances are compelling and that you have no alternative than to remain in Australia (CB 35).
8. Accordingly, the delegate declined to waive the “no further stay” condition.”
The proceeding before this Court
The Applicant was represented before this Court by Mr Patrick Knowles, of counsel.
By consent, the Applicant was given leave to rely upon the grounds in an Amended Application filed in Court. Those grounds are as follows:
“1. The delegate of the Minister erred by misconstruing or misapplying reg.2.05(4) of the Migration Regulations 1994 (Cth) or, alternatively, asking the wrong question.
Particulars
The delegate incorrectly construed the requirement of "compelling and compassionate circumstances" to mean a requirement that the Applicants be faced with a situation where they have no choice, or little choice, but to seek to stay in Australia.
2. The delegate erred by failing to accord the Applicants procedural fairness.
Particulars
The delegate was required to give the Applicants the opportunity to ascertain the issues relevant to the determination of their request for waiver of the visa condition. In breach of this obligation, the delegate did not inform the Applicants that the following matters were issues relevant to his decision:
- whether the First Applicant's mother required constant care;
- whether the First Applicant was required to provide any care required by her mother; and
- whether the medical condition and care requirements of the First Applicant's mother changed after the grant of the Applicants' visas.
3. The delegate erred by failing to take into account a claim made by the Applicants, or alternatively by failing to consider or evaluate relevant evidence.
Particulars
The delegate failed to consider the effect of the death of the First Respondent's father on the circumstances of the Applicants, and in particular how the father's death might affect the extent to which the First Respondent was required to care for her elderly mother.
The delegate failed to consider and evaluate evidence suggesting that the First Applicant's siblings were unable to care for the First Applicant's mother.”
Ground 1
Ground 1 asserts that the Delegate erred by misconstruing or misapplying reg.2.05(4) of the Regulations, or alternatively, asking the wrong question.
Regulation 2.05(4) requires the Delegate to consider whether “compelling and compassionate circumstances” had developed since the Applicant was granted her visa, over which the Applicant had no control and that had resulted in a major change to the Applicant’s circumstances.
The Delegate accepted that the circumstances concerning the health of the Applicant’s mother were compassionate, but found that they were not compelling. The Delegate found that compelling circumstances are “generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia”.
Counsel for the Applicant contends that this characterisation of “compelling circumstances” by the Delegate puts a gloss on the statutory test and sets the bar too high.
In support, counsel for the Applicant referred to Thongpraphai v Minister for Immigration [2000] FCA 1590, where O’Loughlin J held at [21]:
“There is little doubt that both words [“compelling and compassionate”] call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.”
Counsel for the Applicant also referred to Terera v Minister for Immigration (2003) 135 FCR 335 where Kenny J stated at [25] (“Terera”):
“ In a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of reg 2.05(4)(a). When a visa-holder requests the Minister, or Ministerial delegate, to waive a "no further stay" condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.”
(Emphasis added).
Counsel for the Applicant submitted that no part of the text of reg.2.05(4) requires that the circumstance be one where an applicant has “little or no alternative but to stay in Australia”.
However, an extract taken from the Procedures Advice Manual 3 (“PAM3”) was tendered and marked Exhibit 3A. At paragraph 14.4 of Exhibit 3A, “compelling circumstances” are said to be “generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia.”
Counsel for the respondent referred to the decision of Adriayani v Minister for Immigration [2011] FCA 117 (“Adriayani”), where Foster J referred to a Minute prepared for the delegate’s consideration in assessing circumstances of an applicant against requirements of reg.2.05(4) of the Regulations. That Minute also stated that “compelling circumstances are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder has little or no alternative but to seek to extend their stay in Australia”. Whilst the construction of “compelling circumstance”, as characterised in Adriayani was not challenged before Foster J, neither did Foster J suggest that those words did not reflect a proper characterisation of the meaning of “compelling circumstance” insofar as the words are used in reg.2.05(4) of the Regulations.
Further, in reaching its conclusion as quoted above, the Delegate was not satisfied that the Applicant’s mother required constant care, or that the Applicant was required to provide that care. Further, the Delegate found that the “extensive list of ailments” from which the Applicant’s mother was suffering dated back some six years. The Delegate was not satisfied that there was a change to the Applicant’s mother’s health that would be considered a major change to the Applicant’s circumstances since the grant of her visa as required by reg.2.05(4)(a) of the Regulations.
The question for the Delegate was whether in the circumstances of this case, compelling circumstances developed since the visa was granted over which the Applicant had no control, and which resulted in a major change to her circumstances. That is a factual exercise undertaken by the Delegate which depended entirely upon the facts of the case under consideration, particularly, the circumstances of the Applicant (see Terera at [25]).
The Delegate’s conclusion that it did not accept that the Applicant had no alternative but to remain in Australia was based on the evidence and information before it and which was plainly considered by it.
Accordingly, it was open to the Delegate to conclude that the Applicant’s circumstances were not compelling for the reasons it gave.
I am not persuaded that the Delegate misconstrued or misapplied reg.2.05(4) of the Regulations, or alternatively, asked itself the wrong question in considering whether the Applicant met that criteria.
Otherwise, I accept the submission of counsel for the first respondent that whether or not compelling circumstances existed, the Delegate had found that there had been no change to the circumstances of the Applicant’s mother’s health which would have been considered a major change to the Applicant’s circumstances since the grant of the visa.
In reaching that conclusion, the Delegate had considered all the information before it.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Delegate failed to accord the Applicant procedural fairness. The particulars in support of Ground 2 assert that the Delegate was required to give the Applicant the opportunity to ascertain the issues relevant to the Delegate’s determination of the Applicant’s request for a waiver of the ‘No Further Stay’ condition. The particulars assert that in breach of that obligation, the Delegate did not inform the Applicant that the issues relevant to the decision were whether the Applicant’s mother required constant care, whether the Applicant was required to provide any care required by her mother, and whether the medical conditions and care requirements of the Applicant’s mother changed after the grant of the Applicant’s visa.
In support, counsel for the Applicant referred the Court to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) and SZBEL v Minister for Immigration (2006) 228 CLR 152 (“SZBEL”) in the following terms:
“The precise requirements of procedural fairness will necessarily depend on the legislative context and particular factual circumstances: SZBEL v Minister for Immigration (2006) 228 CLR 152 at [26]. Nevertheless, ordinarily, procedural fairness requires that the person affect [sic] be ‘given the opportunity of ascertaining the relevant issues’: SZBEL at [32] approving the statement of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (“Alphaone”). In particular, the person affected is:
(a) ‘entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn’; and
(b) ‘entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by…the subject which is not an obvious and natural evaluation of the material’: Alphaone at 591.”
Counsel for the Applicant submitted that the critical issues upon which the Delegate’s decision turned were whether the Applicant’s mother was “incapacitated to the extent that she requires constant care”; whether the Applicant was required to provide that care; and, whether the Applicant’s mother’s health had changed since the Applicant was granted the visa. The Applicant was not invited to an interview with the Delegate and did not have the opportunity to seek merits review of the Delegate’s decision. In the circumstances, counsel for the Applicant submitted that fairness requires the Delegate to put the Applicant on notice of those matters critical to the decision.
Counsel for the Applicant submitted that it was not obvious that the information and material provided by the Applicant in support of the waiver application was insufficient to establish her mother’s medical conditions over that time. Counsel for the Applicant submitted that given the Delegate’s acceptance that the Applicant’s mother suffered from “an extensive list of ailments”, procedural fairness required the Delegate to inform the Applicant that an explanation was required to establish that the Applicant’s mother’s condition had deteriorated since the Applicant was granted her visa.
There is no obligation in the Act requiring the Delegate to invite the Applicant to a hearing of her request to waive the ‘No Further Stay’ condition. Neither is there any statutory obligation on the Delegate to produce reasons for the decision. However, in providing the reasons that it has, it is common ground that those reasons should be without error.
In considering whether the Applicant was denied procedural fairness, I have had regard to a document tendered and marked Exhibit 2A, titled “Waiving Visa Condition ‘No Further Stay’”. It was the Applicant’s application to enliven the jurisdiction of the Delegate to consider her request. Exhibit 2A is an information document which includes the following information:
“Requesting a waiver of a ‘No Further Stay’ condition
You cannot request a 'No Further Stay' condition be left off your visa at the time you apply for the visa. If you are in Australia holding a visa with 'No Further Stay' condition imposed on it and your circumstances change, there is provision to waive the condition in limited circumstances.
The circumstances in which the minister might waive a 'No Further Stay' condition are:
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
ii. that resulted in a major change to the person's circumstances
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
c. if the person asks the minister to waive the condition, the request is in writing.
If you do request a waiver of a ‘No Further Stay’ condition, the departmental officer who considers your request must be satisfied that all the-above requirements apply in your case, namely that
• the circumstances that have developed since you were granted the visa are both compassionate and compelling
• you had no control over these circumstances
• these circumstances have resulted in a major change to your personal circumstances.
Waiver is not automatic. Each request is decided by assessing your particular circumstances against the above legal requirements.”
Those were the critical issues that the Delegate was required to consider. The particular matters referred to in the particulars in Ground 2 are no more than the evidence upon which the Applicant was relying in seeking to satisfy the Delegate that she met the relevant criteria.
The Delegate’s letter lists all the documents to which it has had regard, and the Applicant does not identify any other document to which the Delegate should have had regard. The Delegate’s considerations and findings as to whether the Applicant’s mother was incapacitated to the extent that she required constant care, whether the Applicant was required to provide that care, whether the medical condition and care requirements of the Applicant’s mother changed after the grant of the visa, all form part of the evidence which the Delegate was required to have regard to in considering whether the Applicant met the criteria in reg.2.05(4) of the Regulations. The Delegate’s findings of fact were open to it on the evidence and material before it and for the reasons it gave.
It is well established that a decision maker in the position of the Delegate is not obliged, as a general rule, to expose his or her mental processes or provisional views to comment before making the decision (see Alphaone at 590-591; SZBEL at [29]).
As stated above, Exhibit 2A sets out clearly the role of the Delegate in considering an application to waive the ‘No Further Stay’ condition and the matters that the Delegate must decide.
In the circumstances, there has been no denial of procedural fairness to the Applicant of the nature particularised in Ground 2.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Delegate failed to take into account relevant evidence, being the effect of the death of the Applicant’s father on the circumstances of the applicants; and, how the father’s death might affect the extent to which the Applicant was required to care for her elderly mother. Ground 3 also asserts that the Delegate failed to consider and evaluate evidence suggesting that the Applicant’s siblings were unable to care for the Applicant’s mother.
Counsel for the Applicant submitted that the Applicant’s father had died after the grant of her visitor visa and such event was capable of producing a “major change” in the Applicant’s circumstances; and, that the father’s death had an obvious potential to bear upon the extent to which the Applicant would be required to care for her 88-year-old mother.
Counsel for the Applicant submitted that the omission to mention the death of the Applicant’s father and the potential it might have had on the relevant criteria in reg.2.05(4) of the Regulations amounted to jurisdictional error. Counsel for the Applicant submitted that the Delegate was required to consider the essential aspects of the Applicant’s claims that were squarely raised on the material submitted by the Applicant. In support, counsel for the Applicant referred to NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [58].
Counsel for the Applicant also referred to the Delegate’s finding that the Applicant had not provided “any information” that the Applicant was required to provide the care that her mother required. Counsel for the Applicant submitted that that finding was not open to the Delegate in circumstances where the Applicant had stated in her application that her siblings were unable to provide the care her mother required, and that the Applicant had provided a letter to the Department detailing the various medical conditions affecting the Applicant’s siblings. In particular, counsel for the Applicant referred to a letter from Dr. Aloe stating that the Applicant’s sister suffers from a range of conditions that made her unable to care for her mother. Counsel for the Applicant submitted that the Delegate’s reasons made no reference to this evidence. Counsel for the applicant submitted that the omission to do so supported the contention that the Delegate’s statement, that there was no information suggesting that the Applicant was required to provide the care required for her mother, gave rise to an inference that the Delegate had overlooked the evidence or, at best, failed to evaluate it, thereby falling into jurisdictional error.
However, in summarising the Applicant’s request for a waiver of the ‘No Further Stay’ condition, the Delegate referred specifically to the Applicant’s claim that her mother “has no one else who can care for her”. The Delegate then listed all the documents provided by the Applicant, including Form 1447, which stated that her father had died. The Delegate referred to the report from Dr. Aloe that the Applicant’s sister was unable to care for her mother. In my view, there is no reason to infer that the Delegate did not evaluate the evidence before it.
Moreover, the Delegate commenced its letter by stating “after careful consideration of the relevant legislation and all the information and claims you have presented in your request”. Coupled with the specific identification of all the information and the reasons provided by the Delegate, there is no reason to draw the inference contended for by the Applicant.
As stated above, the Delegate’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
In the circumstances, the Delegate’s decision not to waive the ‘No ‘Further Stay’ condition is not affected by jurisdictional error.
The application should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 March 2017
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