De Fry v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 260
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
De Fry v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 260
File number: MLG 646 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 27 February 2025 Catchwords: MIGRATION – Application to review decision of the delegate where the delegate refused to waive visa condition 8503 – whether delegate was in error by failing to take account of claims and evidence or acting unreasonably, or applying the wrong test as to whether circumstances were ‘compelling’– no error established – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2.
Migration Regulations 1994 (Cth) Sch 8 cl 8503.
Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812
Boutros v Minister for Immigration and Border Protection (2019) 166 ALD 108
Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899
SZRSX v Minister for Immigration, And Migrant Services and Multicultural Affairs [2021] FCA 1065
Number of paragraphs: 32 Date of hearing: 30 January 2025 Place: Melbourne Solicitor for the Applicants: Self-Represented litigants Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 646 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RALPH HERBERT DE FRY
First Applicant
SHERRYL FRANCISCA DE FRY
Second ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application filed on 7 March 2019 be dismissed.
3.The Applicants pay the Respondent’s costs of the proceeding, fixed in the sum of $5,300.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
INTRODUCTION
This is an application to review a decision made by a delegate of the Minister (‘delegate’) on 5 February 2019. In her decision, the delegate declined to waive visa condition 8503 in respect of the Visitor (Class FA) (Subclass 600) visas (‘visas’) held by the Applicants (Court Book (‘CB’) 78-80).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicants are citizens of Sri Lanka. On 31 May 2017, the Applicants were granted the visas (CB 71).
The visas were subject to schedule 8, clause 8503 of the Migration Regulations 1994 (Cth). That provision relevantly stated that ‘The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia’.
On 4 February 2019, the Applicants requested a waiver of visa condition 8503 as they wished to remain in Australia to provide care and assistance to family members (CB 70).
On 5 February 2019, the delegate decided not to waive visa condition 8503 for the Applicants (CB 78-80).
The Applicants filed their Application for review in this Court on 7 March 2019 (‘Application’). The Application was accompanied by an affidavit in support from their solicitor.
The Applicants appeared before me unrepresented. They did not file any amended application or outline of submissions despite being given the opportunity to do so and relied simply on the Application and the affidavit of their previous solicitor. The Minster relied on his written outline of submissions. The Minister also filed a Court Book.
THE DECISION OF THE DELEGATE
The decision of the delegate is of reasonably short compass. It is reproduced below:
The client’s claims
In this decision record, the term ‘client’ refers to the person(s) requesting waiver of visa condition 8503.
The clients have requested a waiver of the no further stay condition 8503 because they wish to remain in Australia to provide care and assistance to family members.
Information and evidence considered
I am a delegated decision maker under subsection 41(2A) of the Migration Act 1958. In reaching my decision, I have considered the following:
•relevant legislation contained in the Migration Act and Migration Regulations 1994
•information contained in the Department's Procedures Advice Manual 3
•documents and information provided by the applicant(s)
•relevant information held on Departmental files.
Findings
Based on the information before me, including the documents and information provided by the client in support of the waiver request, I find that the circumstances for waiver of no further stay condition 8503 are not met by the client.
Reasons
You have made a request for a condition 8503 waiver. I have assessed your request and the reasons for my decision are detailed below. The Minister cannot waive condition 8503 unless the relevant criteria in the Migration Act and the Migration Regulations are satisfied.
The circumstances of subregulation 2.05(4) have not been met by the client on the date I made my decision. Subregulation 2.05(4) states that:
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.
I have addressed the requirements, as relevant to the case, in particular, addressing those that have not been met below.
The circumstances must be compelling and compassionate
‘Compassionate’ circumstances (which are also not defined in the legislation and must be given their ordinary meaning) involve the concept of ‘compassion’ which is a feeling of sorrow or pity for the sufferings or misfortune of others, or sympathy. Compassionate circumstances give rise to these feelings. I acknowledge that the clients’ desire to remain in Australia and provide care to Mr De Fry’s sister and assistance to his niece is a compassionate circumstance.
I must also consider whether the circumstances are compelling. 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 the decision-maker to make a decision to waive the condition.
The request contains a statement which provides detailed information in regard to the clients’ current circumstances. It is stated that Mr De Fry’s sister, Mrs Vivekananda Rajah, has had a substantial increase in the need for care as a result of her medical conditions. I acknowledge medical documentation provided which confirms that Ms Rajah suffers from multiple medical conditions including cognitive impairment, depression and a risk of falls. Medical documentation provided further states that Ms Rajah requires 24 hour supervision to ensure her safety. Up until now it is stated that Ms Rajah’s daughter, Ms Ingrid Rudolph, was caring for her but Ms Rudolph is no longer able to do so as a result of having suffered two strokes, her ongoing work commitments and Ms Rajah’s increase in care requirements. It is stated that Ms Rudolph still maintains her full time employment, and that whilst strokes have not completely prevented her from working or providing some sort of care to her mother, it has increased her reliance of others, including the clients, to assist in looking after Ms Rajah. As a result of these circumstances the clients are seeking a waiver to allow them to remain in Australia to provide ongoing care to Ms Rajah, as her doctors are of the opinion that the condition of her health will not improve in the future.
Based on the information provided I accept that Ms Rajah requires a significant level of care. It is stated that Ms Rudolph and her husband are employed full time and therefore unable to stay home and look after Ms Rajah. It is further stated that they are unable to afford to place Ms Rajah in a nursing home, nor does anyone, including Ms Rajah want to proceed with the residential care option. In addition to this, it is stated that Ms Rajah is strongly refusing to go into an aged care facility. I have considered this information and I acknowledge that it is not the preference for Ms Rajah or her family to enter into residential care. However, I have considered that this is nonetheless an option which is available to the family. I acknowledge claims that this would isolate Ms Rajah from her family who she is used to seeing every day. However, whilst I acknowledge that time spent with family may be reduced, I have considered that it is open to Ms Rajah’s daughter and son-in-law in Australia to consider maintaining a substantial level of contact with Ms Rajah in the event that her residence may change. I have further considered that the clients also have the option to consider returning to Australia to visit Ms Rajah until such time that they consider any permanent visa pathways which may be available to them. Having considered the circumstances entirely I am not satisfied the circumstances are sufficiently forceful to waive the condition.
In considering all the information the client has provided to support the request to waive condition 8503, I have assessed these claims against the criteria in Regulation 2.05(4). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations and therefore the condition 8503 has not been waived under sub-section 41(2A) of the Act.
Decision
As I find that the circumstances in subregulation 2.05(4) and 2.05(4AA) are not met by the client, I therefore refuse the request by the client for a waiver of condition 8503.
THE APPLICATION
The Application contains two Grounds of Review. They are as follows:
1.The delegate of the Respondent made a decision that was legally unreasonable and/or the delegate of the Respondent failed to consider claims/evidence relevant to the decision.
Particulars
In exercising the power under s.41(2A) of the Migration Act and reg 2.05(4) of the Migration Regulations, the delegate failed to consider the evidence/claims regarding the applicants' intention to apply for an 836 visa, as stated in answer to question 16 in the application for waiver of the no further stay condition. The delegate's reasons included the following sentence that made no sense in light of the answer to question 16:
“I have further considered that the clients also have the option to consider returning to Australia to visit Ms Rajah until such time that they consider any permanent visa pathways which may be available to them.”
2.The delegate of the Respondent erred in law by impermissibly fettering its discretion or asking itself the wrong question in its purported application of the Minister's Department's policy (“Departmental Policy”).
Particulars
Instead of applying s.41 (2A) of the Migration Act and reg 2.05(4) of the Migration Regulations to consider whether in light of the claims and evidence compelling and compassionate circumstances had developed over which the applicants had no control that resulted in a major change to the persons' circumstance, the delegate considered that the circumstances "must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition" and concluded: "Having considered the circumstances entirely I am not satisfied the circumstances are sufficiently forceful to waive the condition". The delegate's language reveals application of a different test to that stipulated in reg 2.05(4).
I asked the Applicants what they wished to say in support of their Application. They told me that the delegate had failed to take account of compassionate circumstances that affected Ms Rajah, a family member.
The point made by the Applicants in oral submissions cannot succeed. It is abundantly clear from the reasons given by the delegate that the delegate was aware of, and took into account, the compassionate circumstances that affected Ms Rajah. The delegate acknowledged the Applicants ‘desire to remain in Australia and provide care to Mr De Fry’s sister and assistance to his niece’. The delegate also accepted that Ms Rajah requires a significant level of care.
I next turn to deal with the Grounds raised in the Application.
Ground One asserts unreasonableness or alternatively, failure to consider claims or evidence relevant to the decision. In addressing this Ground, it is important to bear in mind two matters.
First, the delegate was not under any obligation to provide reasons for the decision: see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] (Allsop J); Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 at [11]. Notwithstanding that, consistent with good administration, the delegate produced a decision record.
Second, the consequence of the delegate not being under any obligation to provide reasons for decision (when a claim such as the present one is pressed) has been explained by the High Court of Australia in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25] (‘Plaintiff M64’). There, the High Court (French CJ, Bell, Keane and Gordon JJ) at [25] said:
It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision (5), and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate (6).
The point above is one to be borne in mind when assessing Ground One of the Application. The Applicant may ask the Court to infer there was a failure to consider evidence or claims, but it is difficult to draw that inference where there is no obligation on the decision maker to provide reasons.
In Ground One, the Applicants assert there was a failure by the delegate to consider their intention to apply for an 836 visa. Both Applicants had indicated in answer to question 16 of their application to waive visa condition 8503 that they intended to apply for a subclass 836 visa.
The delegate did not expressly in her reasons refer to an 836 visa. That does not mean, however, that the delegate failed to consider the intention of the Applicants to remain in Australia to apply for an 836 visa. The Applicants were seeking the waiver of visa condition 8503 to enable them to make an application for a visa while in Australia. That was the underlying basis for the application before the delegate and it could not have escaped the delegate’s attention that the Applicants wished to pursue an application for a substantive visa to care for Ms Rajah. In fact, the delegate stated expressly at the outset that the Applicants wished ‘to remain in Australia to provide care and assistance to family members’. Later, the delegate stated that ‘I acknowledge that the clients’ desire to remain in Australia and provide care to Mr De Fry’s sister and assistance to his niece is a compassionate circumstance’. When these matters are considered in conjunction with what the High Court said in Plaintiff M64, there was not a failure by the delegate to consider claims or evidence advanced by the Applicants as contended for under Ground One.
Under Ground One, the Applicants also assert unreasonableness on the part of the decision maker. The Ground itself does not clearly articulate what aspect of the delegate’s decision was unreasonable. The Applicants did not clarify this at the hearing. As best I can understand it, having read the Ground, the Applicants contend that the statement by the delegate that ‘I have further considered that the clients also have the option to consider returning to Australia to visit Ms Rajah until such time that they consider any permanent visa pathways which may be available to them’ makes no sense in light of their answer to question 16.
In my view, the delegate’s reasons do not disclose unreasonableness. As I stated above, the delegate was plainly aware, from all the circumstances, that the Applicants wished to remain in Australia. The delegate’s reasons are not rendered unreasonable or inconsistent simply because the delegate noted that the Applicants had the option to consider returning to Australia to provide periodic care to Ms Rajah. The delegate was simply noting an option available to the Applicants in the course of determining whether to waive visa condition 8503. The reference to the Applicants considering ‘any permanent visa pathways’ is clearly a reference to them considering those pathways while outside Australia.
In Ground Two, the Applicants take issue with the way in which the delegate assessed whether there were ‘compelling’ circumstances. Again, the Applicants did not develop this point in oral submissions. Within Ground Two, however, the assertion is that the delegate committed an error of law, fettered her discretion, or asked herself the wrong question by considering that the circumstances that confronted the Applicants must be ‘sufficiently forceful’ in order to waive the relevant visa condition. The ultimate suggestion seems to be that the delegate applied the wrong test when deciding whether there were, inter alia, ‘compelling’ circumstances to waive visa condition 8503.
Various decisions of the Federal Court disclose that the manner in which the delegate approached the matter before her, on this issue, was uncontroversial.
In Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272 (‘Farhat’), Kenny J noted at paragraph [10] that:
The delegate acknowledged that the medical evidence, provided by way of a report dated 22 May 2014 from Dr Ishrat Ali, a consultant psychiatrist, was to the effect that the appellant’s wife, Ms Salami, was suffering from a psychiatric condition and was in need of care. The delegate also noted that the appellant had become a father figure to Ms Salami’s youngest son. The delegate stated, however, that he did “not find that this represents compelling circumstances”, in the sense that they were sufficiently forceful to justify a decision to waive the 8503 condition.
Then at [27], Kenny J stated:
I accept the Minister’s submission that there was no error disclosed in this case in the delegate’s statement that the word “compelling” was to be given its ordinary meaning and that, in the present context, “compelling” circumstances referred to circumstances that were “sufficiently forceful” to lead the decision-maker to waive the 8503 condition. There was no error in this regard on the part of the Circuit Court judge.
In Boutros v Minister for Immigration and Border Protection (2019) 166 ALD 108, Perry J noted at paragraph [21] of her reasons:
Secondly and in any event, I do not consider that the first limb of ground 1 raises a jurisdictional error. In this regard, while the delegate accepted that the appellant’s desire to remain in Australia to care for his sister is compassionate, he did not accept that the appellant’s circumstances were compelling for the purposes of reg 2.05(4)(a). In so finding, the delegate explained that:
The term “compelling” is not defined in the migration legislation. It is therefore given its ordinary meaning. “Compelling” means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.
Then, at paragraph [23] of her reasons, Perry J stated:
It might be thought, with respect, that there is a degree of circularity to the delegate’s understanding of the criterion that the appellant’s circumstances must be compelling in the sense that the circumstances “must be suffıciently forceful that they lead the decision-maker to make a decision to waive the condition”(emphasis added) (subject, of course, to the appellant meeting the other prescribed criteria). Allowing for some looseness of language in the delegate’s expression of the test, that construction is broadly consistent with that adopted by the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206; [2015] HCA 50 (Plaintiff M64/2015). In that case the High Court considered the proper construction of cl 202.222 of Sch 2 to the Regulations which prescribed, as a criterion for the grant of a visa, that the Minister was satisfied that there are “compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to” certain considerations set out in para (a) to (d) of cl 202.222. In that context, French CJ, Bell, Keane and Gordon JJ held that:
31. … 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.
See also Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [21]…
In SZRSX v Minister for Immigration, And Migrant Services and Multicultural Affairs [2021] FCA 1065, Jagot J at [6] noted that the delegate there had considered that:
… (d) the applicant’s desire to remain with her partner, given the lack of additional supporting information, is not sufficiently forceful to constitute a compelling circumstance, and (e) based on the available information, the applicant’s claimed fear for her life if she returned to Fiji is not sufficiently forceful to constitute a compelling circumstance. As a result, the delegate was not satisfied that the prescribed circumstances in reg 2.05(4) existed and the waiver application was refused.
Then at [9], Jagot J stated:
I agree. I am unable to discern any legal error in the reasoning of the delegate. Its approach to the two limbs of the applicant’s claimed circumstances (her wish to make a partner visa application and her fear of returning to Fiji) accorded with the statutory requirements. The delegate’s emphasis on the circumstances needing to be both compassionate and compelling, in the sense of sufficiently forceful to conclude that the condition should be waived, is consistent with principle: Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [22]-[23]; Farhat v Minister for Immigration and Border Protection [2018] FCA 93 at [27].
The decisions referred to above (particularly Farhat) are relevant to the present matter. The delegate did not commit any error when she, in addressing what constitutes ‘compelling’ circumstances, stated that the circumstances must be ‘sufficiently forceful’. The use of that language does not disclose any error of law or misapplication of any legal test as contended for by the Applicants in Ground Two.
For all of the above reasons, the Applicants have failed to make out the Grounds of Review contained within the Application, or identify any other error. The Application must therefore be dismissed.
The Minister has been entirely successful. He seeks costs in the amount of $5,300 which are less than the scale of costs set out in schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). In the circumstances, it is appropriate to award costs to the Minister in the sum sought and I will make an order to that effect.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 27 February 2025
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