Darwich v Minister for Immigration

[2016] FCCA 3127

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARWICH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3127

Catchwords:
MIGRATION – Review of a decision of a delegate of the Minister – no further stay condition on visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.41
Migration Regulations 1994 (Cth)

Applicant: JAMAL DARWICH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1770 of 2016

Judgment of: Judge Driver

Hearing date: 5 December 2016

Delivered at: Sydney

Delivered on: 5 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1770 of 2016

JAMAL DARWICH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Mr Darwich sought from the Minister’s Department the waiver of a no further stay condition on his visa because he wishes to apply for a partner visa, having formed a relationship in Australia.  The request was refused by a delegate of the Minister and Mr Darwich seeks judicial review of that decision.  Unfortunately for Mr Darwich, there is no legal basis to disturb the delegate’s decision.  However, the compassionate circumstances which were elaborated upon at the hearing before me today do in my opinion call for some further consideration which might follow from a fresh request to waive the condition.

2. The background facts are set out in written submissions filed on behalf of the Minister on 9 November 2016.   

3. Mr Darwich is a citizen of Lebanon who arrived in Australia on 24 August 2012 as the holder of a Sponsored Family Visitor (Subclass 679) visa[1].  Condition 8503 was attached to that visa which prohibits a visa holder, after entering Australia, from being granted a substantive visa, other than a protection visa, while the visa holder remains in Australia.

   [1] CB 45

4. On 9 June 2016, Mr Darwich lodged a request to waive condition 8503 on the basis of “compelling circumstances”[2]. He claimed that he was now married to an Australian citizen who had three children, they were suffering from depression and anxiety as a result of family violence in his wife’s prior marriage and that his wife and step children would be “aggrieved” if he was required to depart Australian temporarily to apply for a partner visa.  He claimed that his wife and step children had a “fragile state of mental health”[3].

   [2] CB 1-4

   [3] CB 2-3

5. Mr Darwich provided documents in support of his request including orders from his wife’s family law proceedings, interim and provisional apprehended domestic violence orders, medical documents and reports from a psychologist[4].

   [4] CB 5-39

Legislative background

1. The Minister may, in prescribed circumstances, waive a condition that prohibits a visa holder from being granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while in Australia[5].

   [5] Migration Act 1958 (Cth), s.41(2A)

2. Regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) specifies that for the purposes of s.41(2A) of the Migration Act, the Minister may waive a condition in the following circumstances:

   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.

3. Further, regulation 2.05(4AA) of the Regulations specifies that for the purposes of s.41(2A) of the Migration Act, a further circumstance in which the Minister may waive condition 8503 is where the visa holder has a genuine intention to apply for the one of the following visas: a General Skilled Migration visa, a Business Talent (Subclass 132) visa; an Employer Nomination Scheme (Subclass 186) visa; a Regional Sponsored Migration Scheme (Subclass 187) visa; or a Business Innovation and Investment (Provisional) (Subclass 188) visa.

The delegate’s decision

1. On 21 June 2016, the delegate refused the waiver request on the basis that Mr Darwich did not satisfy regulation 2.05(4) or 2.05(4AA)[6].  The delegate found that Mr Darwich’s relationship with his wife and children was a “personal choice”, that he commenced this relationship knowing that he may have to depart due to his migration status, and he took on responsibility for their well-being. The delegate found that this relationship was a decision made by Mr Darwich and was not a circumstance “over which the person had no control” as required by regulation 2.05(4)(a)(i)[7].

   [6] CB 49-54

   [7] CB 53.3

2. The delegate acknowledged that Mr Darwich’s circumstances were compassionate in that he would like to remain in Australia with his wife and her children[8]. However, he was not satisfied that the circumstances were compelling. The delegate noted that the term “compelling” was not defined and was to be given its ordinary meaning of forceful or driving, especially to a course of action[9].  The delegate found that the circumstances must be “sufficiently forceful to lead a decision maker to make a decision to waive the condition”. The delegate considered the documents provided by Mr Darwich but identified the following concerns:

   a)the temporary apprehended domestic violence order issued on 29 March 2011 was only put in place prior to the Court proceedings set for 6 May 2011.  The delegate noted that there was no further evidence that his wife’s previous husband was subject to a permanent order[10];

   b)the terms of settlement for his wife’s divorce revealed that her ex-husband had non-supervised access to his children on a regular basis including during school holiday periods.  On this basis, the delegate did not accept that the ex-husband was a threat to them. The delegate found that there was no evidence to indicate that his wife’s ex-husband was violent or continued to be violent to his children[11];

   c)although Mr Darwich provided multiple assessments and documents from a psychologist and psychiatrist, the documents were out-dated and from the period of his wife’s separation from her first husband (namely, 2011). The delegate accepted that during that period, his wife and her children may have been in need of professional assistance but did not accept that they remain “fragile”. The delegate found that the children had access to their father and there was no information regarding continued psychological support[12].

   [8] CB 53.5

   [9] CB 53.6

   [10] CB 53.7

   [11] CB 53.8

   [12] CB 54.2

3. Accordingly, the delegate found that these circumstances were not “sufficiently forceful” to waive condition 8503. The delegate concluded that regulation 2.05(4) and regulation 2.05(4AA) were not met.

The present proceedings

1. These proceedings began with a show cause application filed on 11 July 2016.  Mr Darwich continues to rely upon that application.  There are three grounds in the application:

   1.The Delegate of the Minister failed to interpret what compelling reasons are.  The Delegate misunderstood my wife and stepchildrens' condition and the degree of violence at the hand of her ex-husband.

   2. The Delegate stated that the term compelling is not defined in the Migration legislation.  Yet failed to ask himself the question what will happen to my wife and her three children if I depart Australia.  The Delegate misunderstood that the circumstances of my wife are strongly and sufficiently forceful and that they should lead him to waive the No Further Stay condition.  The Delegate of the Minister ignored the physical and mental abuse at the hand of her ex-husband and ignored my suffering as a result of physical and mental abuse. And the trauma they will suffer in the absence of the love and support which they now receive.

   3.      The Department granted me a bridging visa to depart Australia today and such request added more stress and trauma to my wife and her children.

2. The application is supported by a short affidavit filed with it which I received, subject to relevance. 

3. I also have before me as evidence the court book filed on 5 October 2016. 

4. Both the Minister and Mr Darwich prepared written submissions and made oral submissions at the hearing before me today. 

5. Mr Darwich spoke briefly and relied upon his written submissions.  He was supported by his wife, Ms Raad, who spoke eloquently on his behalf.  The substance of those submissions is that Mr Darwich has had a very positive impact on the lives of Ms Raad and her children.  It would be unfortunate if that positive impact were to be removed.  The previous request to the Minister to waive the condition focused upon negative issues flowing from Ms Raad’s earlier divorce and issues relating to her former husband.  The more recent and positive issues, in my opinion, merit further consideration.  I am however unable to discern an arguable case of any jurisdictional error by the delegate in the consideration of the previous request.  I agree with the Minister’s submissions concerning the grounds of review in the application.

Grounds 1 and 2

1. Ground 1 contends that the delegate “failed to interpret” compelling reasons and “misunderstood’” Mr Darwich’s and stepchildren’s condition and the “degree of violence”.  Similarly, Ground 2 contends that the delegate failed to “ask itself” what would happen to Mr Darwich’s wife and stepchildren if he departed Australia, and contends that the delegate “ignored” the physical and mental abuse suffered from Mr Darwich’s wife’s ex-husband and the “trauma” they will suffer if he was required to depart Australia.

2. The delegate plainly considered Mr Darwich’s claims regarding the alleged family violence, depression and anxiety suffered by his wife and her children[13]. The delegate also considered the documents provided but was not satisfied that the ex-husband presented a threat to his wife and children in light of the orders of the Federal Magistrates Court (as it then was) granting him non-supervised visits to the children and the lack of current evidence[14].  These grounds seek to impermissibly challenge factual findings made by the delegate.

   [13] CB 54.2

   [14] CB 53.8

Ground 3

1. Ground 3 states that the Department granted Mr Darwich a bridging visa on departure grounds which added stress and trauma to his wife and children. The ground does not allege any error on the part of the delegate.

2. I conclude that Mr Darwich is unable to demonstrate an arguable case of jurisdictional error by the Minister’s delegate.

3. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

4. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  Mr Darwich did not wish to be heard on costs.

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 5 December 2016