Dogolau v Minister for Immigration
[2012] FMCA 529
•18 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOGOLAU v MINISTER FOR IMMIGRATION | [2012] FMCA 529 |
| MIGRATION – Review of decision by a delegate of the Minister for Immigration & Citizenship to refuse to waive condition 8503 of the applicant’s tourist visa – whether there were compelling and compassionate circumstances beyond the applicant’s control – whether the applicant’s relationship with an Australian citizen was a compelling and compassionate circumstance beyond the applicant’s control. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.41 Migration Regulations 1994 (Cth), reg.2.05, sch.8 |
| Kumar v Minister for Immigration [2000] FCA 793 Nguyen v Minister for Immigration [2001] FCA 360 Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 |
| Applicant: | MELI DOGOLAU |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 137 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 June 2012 |
| Date of Last Submission: | 18 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2012 |
REPRESENTATION
The applicant appeared in person and was assisted by a Fijian interpreter.
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 23 January 2012, is dismissed.
The applicant pay the costs of the respondent fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 137 of 2012
| MEL DOGOLAU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of a delegate of the respondent (“the Delegate”).
The applicant claims to be a citizen of the Republic of the Fiji Islands (“Fiji”).
Background
The applicant arrived in Australia on 6 November 2008 having departed legally from Fiji on a passport issued in his own name and with a single entry Tourist Visitor visa issued on 3 November 2008 and expired on 6 December 2008. Condition 8503 was imposed on the visa.
On 21 November 2011, the applicant was granted a Bridging E (class WE) General (subclass 050) visa which ceased on 14 December 2011.
On 13 December 2011, the Applicant lodged an application to request the respondent exercise his power to Waive 8503 No Further Stay Condition which had been imposed on the applicant’s Tourist Visitor visa.
On 22 December 2011, the Delegate refused the applicant’s request to have the condition waived.
On 23 January 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
The relevant sections to the decision to waive 8503 condition are s.41 of the Act and reg.2.05 of the Migration Regulations 1994 (Cth) (“the Regulations”).
Condition 8503 is provided in Sch.8 of the Regulations and states:
“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.”
Section 41(2A) of the Act states:
“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).”
Section 41(2)(a) of the Act states:
“Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
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”
Regulation 2.05(4) of the Regulations states:
“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.”
The applicant’s material in support and the decision of the Delegate
The applicant’s supporting material and the decision of the Delegate are accurately summarised in the written submissions of the respondent, filed 8 June 2012, as follows:
“9. The Applicant’s request for condition 8503 to be waived was supported by a letter dated 19 November 2011 from Ms Kales Pennina Luffman. The letter raised the following issues in support of the Applicant’s request:
(a) While in Australia, the Applicant met Ms Luffman (an Australian citizen) and they formed a relationship and now live together;
(b) The Applicant has separated from his wife;
(c) The Applicant’s children are living with his brother in Fiji;
(d) The Applicant and Ms Luffman wish to get married and start a family. Ms Luffman said she has seen a doctor regarding IVF treatment;
(e) The Applicant’s house in Fiji was ‘caught’ in the floods of 2009 and he no longer has a home to return to in Fiji; and
(f) The Applicant would, if he remains in Australia, continue to perform domestic duties while Ms Luffman performed paid work.
10. The Applicant also submitted in support of his application an ultrasound request form and a doctor’s certificate confirming Ms Luffman’s history of infertility (CB 3-4).
11. The Delegate was provided with an internal document dated 22 December 2011 referred to as a ‘Minute – Submission to Delegate’ (the ‘Minute’)(CB 12-15). After referring to the conditions in Regulation 2.05(4), the Minute states:
(d) Were the circumstances outside the client’s control?
No. Mr Dogolau’s decisions to remain in Australia to seek protection and then commence a relationship with Ms Luffman do not constitute circumstances beyond his control.
Mr Dogolau was made aware of the No Further Stay condition and of its implications on his ability to apply for a further visa onshore when his visa was granted.
(e) Are the circumstances both compelling and compassionate?
No. Mr Dogolau requests to waive the no further stay condition to remain in Australia and apply for a spouse visa as he wishes to marry, and start a family with Ms Luffman. Mr Dogolau also claims he is unable to return to his home in Fiji following flooding in 2009.
While Mr Dogolau’s claim of being unable to return to his home in Fiji is noted, no evidence has been provided in support of this claim.
In terms of Mr Dogolau’s relationship with Ms Luffman, under the relevant 8503 policy provisions, a relationship with an Australian Resident or Citizen would not in itself constitute such a change in circumstances to be beyond the visa holder’s control or to constitute compassionate or compelling circumstances (CB 14).
12. On 12 December 2011 the Delegate notified the Applicant by letter of the refusal to waive the visa condition (the ‘Delegate’s letter’)(CB 16-18). The Delegate’s letter stated:
While I accept that your relationship with Ms Luffman began after your visa was granted, a relationship with an Australian citizen or resident would not, under policy, normally constitute a situation that would be regarded as being beyond your control.
Also, while the claim of being unable to return to your home in Fiji is noted, no evidence has been provided to support this claim and it remains to be unfounded.”
The proceeding before this Court
The applicant was unrepresented before this Court but had the assistance of an interpreter.
On 20 March 2012, the applicant attended a directions hearing before me. I explained to the applicant that the ground of the application made a bare unparticularised assertion and did not by itself disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of the ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.
The applicant confirmed that he relied on the ground contained in the application filed on 23 January 2012 as follows:
“The delegate overlooked important information submitted in letter dated 19/11/11.”
The applicant was invited to make submissions in support of the ground and in support of the application generally.
I asked the applicant what was the information that he said the Delegate overlooked in Ms Luffman’s letter, dated 19 November 2011. At first, the applicant said that his partner was pregnant and it would be very difficult for her to be pregnant alone. I said to the applicant that I could not see where in the letter there was an assertion that his partner was pregnant and the applicant clarified his answer to be that they wished to have children, that she was not presently pregnant and was experiencing some difficulty in becoming pregnant.
The applicant also said that the Delegate had overlooked the information he gave about his home in Fiji being flooded.
Mr Dogolau sought an adjournment from this Court to provide unspecified documents to support his claim of damage to his home as well of further submissions in support of his application.
However, he confirmed that any documents he may be able to obtain had not been provided to the Delegate. I explained to the applicant that in those circumstances, any such material would not assist the applicant in demonstrating jurisdictional error on the part of the Delegate. However, the applicant’s initiating application was filed on 23 January 2012.
As stated above, the applicant appeared at a first directions before me on 20 March 2012 on which occasion he was directed to file and serve all evidence in support of his application by 12 April 2012 and written submissions two weeks prior to today’s hearing.
The applicant has had sufficient time both to put on evidence of any request to the Delegate to provide identifiable documents and has had sufficient time to obtain any such documents in existence to place before this Court. There was no evidence provided by the applicant as to the nature of any such material or of any attempt by him to obtain any such material.
Further, the applicant has had sufficient time to file and serve written submissions. I confirmed with the applicant at the end of his oral submissions and again at the end of the respondent’s counsel’s submissions whether there was anything further he wished to say in support of his application. The applicant did not identify any particular issue in respect of which he wished to have further time to make submissions. I understood his request to be unspecified and general.
In the circumstances, the applicant’s request for an adjournment was refused.
The Delegate’s decision letter makes clear that the Delegate was not satisfied of the applicant’s claim that he could not return to his home in Fiji in light of the absence of any evidence in support.
The Delegate accepted the applicant’s relationship with Ms Luffman began after he entered Australia but did not accept that it constituted a circumstance beyond the applicant’s control for the purposes of 2.05(4) of the Regulations.
The Delegate noted that there was no other information provided which would indicate that compelling and compassionate circumstances over which the applicant had no control had developed since the grant of the visa on 3 November 2008.
The Delegate’s letter referred to the correct legislative regime in considering whether to waive condition 8503 of the applicant’s tourist visa.
The Delegate’s letter acknowledged that the reason the applicant sought the waiver was because he wished to remain in Australia to marry and start a family with his de facto partner and that he could not return to his home in Fiji due to flooding in 2009. The Delegate’s letter identified the material provided by the applicant in support of his waiver application.
There is nothing in the Delegate’s letter to support the applicant’s contention that the Delegate overlooked or failed to consider any aspect of his claims.
The Delegate’s letter is consistent with the Minute, dated 20 December 2011, that preceded the Delegate’s letter and upon which it was based. Those documents, together with the applicant’s documents in support, were contained in the bundle of documents marked “Relevant Documents” filed by the respondent on 1 March 2012, and marked Exhibit 1R.
In the circumstances, it was open to the Delegate to conclude that the applicant’s relationship with Ms Luffman was not a matter outside his control. Whether a particular circumstance was outside the control of the visa holder for the purposes of reg.2.05(4) of the Regulations is not a matter for the Court (Kumar v Minister for Immigration [2000] FCA 793 at [20]).
It was also open to the Delegate to find that the applicant’s relationship with Ms Luffman was not a compelling and compassionate circumstance within the meaning of reg.2.05(4) of the Regulations. In Nguyen v Minister for Immigration [2001] FCA 360 at [12], Marshall J found that marriage to an Australian citizen without more can rarely ever constitute a compelling and compassionate circumstance for the purposes of reg.2.05(4) of the Regulations.
It was open to the Delegate not to be satisfied that the applicant was unable to return to his former home in Fiji due to the floods in 2009.
Moreover, I note that there would not appear to be any requirement in the Act that written reasons for decision not to waive a visa condition be given, nor that any such reasons set out all the material to which regard has been had (see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J).
In the circumstances, the Delegate’s decision not to waive the 8503 condition of the applicant’s visa was made according to law.
Accordingly, the proceeding before this Court, commenced by way of application filed on 23 January 2012, should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 18 June 2012
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