DXJ18 v Minister for Home Affairs
[2019] FCCA 204
•4 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DXJ18 v MINISTER FOR HOME AFFAIRS | [2019] FCCA 204 |
| Catchwords: MIGRATION – Review of a decision by a delegate of the respondent – whether delegate of the respondent’s decision affected by jurisdictional error – whether a delegate of the respondent erred in their application of reg.2.05 of the Migration Regulations 1994 (Cth) – whether a delegate of the respondent considered all claims made by the applicant – whether the findings of a delegate of the respondent were open to it – whether the delegate erred in replicating the reasons in a recommendation prepared by an officer of the Department of Home Affairs – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Act 1958 (Cth), ss.476, 41 Migration Regulations 1994 (Cth), reg.2.05, sch.8 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | DXJ18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1595 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 4 December 2018, 29 January 2019 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Sharon Sangha (Mills Oakley Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1595 of 2018
| DXJ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of delegate of the first respondent (“the Delegate”) made on 4 June 2018 refusing the applicant’s request for waiver of no further stay condition 8534 (“Condition 8534”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework and a summary of the decision of the Delegate.
Background
The applicant arrived in Australia on 21 June 2009 having departed legally from China on a passport issued in his own name and a Student Guardian (Subclass 580) visa subject to Condition 8534.
On 31 March 2014, the applicant lodged an application for a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
On 22 December 2014, the applicant’s application for a Protection Visa was refused.
On 9 April 2018, the applicant lodged a request for waiver of Condition 8534.
On 4 June 2018, the Delegate refused the applicant’s application for waiver of Condition 8534.
On 7 June 2018, the applicant filed an application in this Court seeking judicial review of the Delegate’s decision.
Legislative framework
Pursuant to s.41(2A) of the Act, a Delegate of the respondent may, in prescribed circumstances, in writing, waive a condition of a kind described in s.41(2)(a) of the Act. Section 41 of the Act is as follows:
“Section 41
Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
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
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(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).”
Section 41(2)(a) of the Act refers to Condition 8534, set out in sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”), which stipulates as follows:
“8534 The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b) a Subclass 485 (Temporary Graduate) visa; or
(c) a Subclass 590 (Student Guardian) visa;
while the holder remains in Australia.”
Regulations 2.05(4), (5), (5A) and (6) of the Regulations (as they were at the relevant time) prescribe the circumstances in which Condition 8534 may be waived, as follows:
“Reg 2.05 Conditions applicable to visas
…
(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.
(5) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
has after holding a student visa to which condition 8534 applies, been granted:
(i) a Subclass 497 (Graduate – Skilled) visa; or
(ii) a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with a Subclass 497 (Graduate – Skilled) visa application; and
has not after holding a student visa to which condition 8534 applies, been granted a protection visa.
(5A) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has completed the course for which the visa was granted and
(b) has a genuine intention to apply for:
(i) a General Skilled Migration visa; or
(ii) a Subclass 132 (Business Talent) visa; or
(iii) a Subclass 186 (Employer Nomination Scheme) visa; or
(iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
(6) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.”
The Delegate’s decision
On 4 June 2018, the Delegate refused the applicant’s request for waiver of Condition 8534 on the basis that he did not satisfy the relevant criteria in the Act and the Regulations, namely regs.2.05(4), (5), (5A) or (6) of the Regulations.
The Delegate did not accept that the applicant’s foot pain had resulted in a major change to the client’s circumstances, pursuant to reg.2.05(4)(a)(ii) of the Regulations. The Delegate noted that the applicant had not provided any documentation regarding the severity of the injury.
Whilst, the Delegate accepted the applicant’s claim that he feared returning to China, the Delegate noted that no documentation had been provided that demonstrated that there was a specific threat to the applicant’s safety. Accordingly, the Delegate did not find the applicant’s claim regarding returning to China was a major change to the applicant’s circumstances within the meaning of reg.2.05(4) of the Regulations.
The Delegate accepted that the applicant’s circumstances were compassionate in that he claimed he was concerned for his safety if he returned to China, and that he was suffering from foot pain.
The Delegate considered whether the applicant’s circumstances were compelling, noting that the term “compelling” is not defined in the migration legislation and that it must be given its ordinary meaning.
The Delegate noted that the applicant claimed to suffer from serious pain in both feet and that he is unable to walk normally. The Delegate noted that the applicant had submitted a receipt for an x-ray of the applicant’s right heel on 31 March 2018, and acknowledged the applicant’s claim that he needed to stay in Australia to get his feet treated.
The Delegate found, however, that the applicant had not provided any documentation outlining the severity of the injury or a treatment plan. The Delegate acknowledged that it was the applicant’s preference to remain in Australia for treatment, but was not satisfied that further treatment was urgent and could not be done in China. The Delegate further noted that, considering the availability of mobility assistance through international airports, it was reasonable to find that the applicant was able to travel.
In respect of the applicant’s claims to be a Falun Gong practitioner and to fear for his safety should he return to China due to government persecution, the Delegate noted that no documentation or evidence had been provided to demonstrate a specific threat to the applicant. As such, the Delegate did not find the applicant’s circumstances sufficiently compelling to waive Condition 8534.
The Delegate was not satisfied that the applicant’s circumstances were circumstances that met all the criteria set out in the Regulations and therefore refused to waive Condition 8534 under s.41(2A) of the Act.
In respect of reg.2.05(5) of the Regulations, the Delegate found that the applicant had not been granted a Subclass 497 Graduate Skilled visa; a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa in association with a subclass 497 Graduate Skilled visa; or a Protection visa. Accordingly, the applicant did not satisfy reg.2.05(5) of the Regulations for the waiver of Condition 8534.
In respect of reg.2.05(5A) of the Regulations, the Delegate noted that reg.2.05(5A)(a) of the Regulations, which requires that the visa holder has completed the course for which the visa was granted, was not applicable as the applicant was the holder of a Student Guardian visa. Further, the applicant had not indicated that he had a genuine intention to apply for a General Skilled Migration visa; Subclass 132 (Business Talent); Subclass 186 (Employer Nomination); Subclass 187 (Regional Sponsored); or Subclass 188 (Business Innovation and Investment) visa. Accordingly, the applicant did not satisfy reg.2.05(5A) of the Regulations for the waiver of Condition 8534.
In respect of reg.2.05(6) of the Regulations, the Delegate found that the applicant had not indicated that he was a registered nurse or satisfied the requirements for registration as a registered nurse and thus did not satisfy reg.2.05(6) for waiver of Condition 8534.
Accordingly, having determined that the applicant did not satisfy the relevant criteria in regs.2.05(4), (5), (5A) or (6), the Delegate refused the request by the applicant for a waiver of Condition 8534.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 28 June 2018, the applicant failed to appear at a directions hearing before a registrar of this Court and the application was dismissed pursuant to r.13.03C(1) of the Federal Circuit Court Rules 2001 (Cth).
On 5 July 2018, the applicant applied for reinstatement of his application for judicial review.
On 13 August 2018, the applicant appeared before me for hearing of his application for reinstatement. On that occasion, orders were made reinstating the matter. The applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
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 has no further documents to present to the Court this morning in support of his application.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Delegate, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Delegate was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Delegate, unless the Court is satisfied that the decision of the Delegate is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Delegate rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the grounds contained in the Application, filed on 7 June 2018. There appeared to be three complaints contained under the heading “Final orders sought by applicant/s” and three complaints contained under the heading “Grounds of application”. They are as follows:
“Final orders sought by applicant/s
1. I disagree with Immigration's decision. They did not consider that I have compelling and compassionate grounds to request for waiver of 8534 condition on my initial entry visa.
2. They did not consider the fact of my strong fears to return to my home country to apply for subclass 602. I have provided sufficient information and evidence to support my waiver request, however Department of Home Affairs did not give a good consideration of my actual situation was out of my control.
3. Department of Home Affairs should waiver the 8534 condition and allow me to apply for subclass 602 in Australia.
Grounds of application
[4]. I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears (I practice Falun Gong which is not allowed in China) to return to my home country to apply for subclass 602.
[5]. I provided with Department of Home Affairs my compelling reasons for my waiver request, however they did not accept it. I am very disappointed that Department of Home Affairs ignored the fact that I am unable to return to my home country and I do have medical problem need to .be treated here.
[6]. Department of Home Affairs did not show any concerns to my waiver evidence, I don't think I have been fairly treated.”
(Errors in original)
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The applicant had nothing to say in support of any of the grounds of his application.
I took the applicant through the Delegate’s decision and the relevant legislation and explained the findings made by the Delegate.
Ground 1 asserts that the Delegate did not consider that the applicant had compelling and compassionate grounds for his waiver request.
A fair reading of the Delegate’s decision does not support the applicant’s contention. The Delegate correctly set out the relevant criteria that the applicant was required to meet and its findings in relation to whether the applicant’s circumstances were compelling and compassionate. As stated above, the Delegate did not accept that the applicant’s foot pain had resulted in a major change in his circumstances and, that in any event, no supporting documentation was provided by the applicant other than an x-ray of the applicant’s right heel. The Delegate was not satisfied that further treatment was either urgent or could not be done in China. The Delegate found that the applicant was fit to travel.
The Delegate accepted that the applicant’s circumstances of foot pain and a concern for his safety in China were compassionate. However, in the absence of any evidence of a specific threat to the applicant and the Delegate’s findings in relation to the applicant’s foot injury, the Delegate found the applicant’s circumstances to neither be compelling nor to have resulted in a major change to his circumstances.
Those findings were open to the Delegate on the evidence and material before it. The Delegate’s findings were based on rational grounds and arrived at after considering those factors that were logically probative. The Delegate’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical; probative basis, or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 1 is not made out.
Ground 2 asserts that the Delegate did not consider the applicant’s fear of return to China and that the evidence and information he provided was sufficient to support his waiver request. Ground 2 also asserted that the Delegate did not consider that his situation was out of his control.
As stated above, a fair reading of the Delegate’s decision record makes clear that the Delegate understood the applicant’s fear of returning to China and accepted that such circumstances amounted to compassionate circumstances. However, the Delegate found that there was insufficient evidence or documentation to demonstrate a specific threat to the applicant and that compelling circumstances to waive Condition 8534 did not, therefore, exist.
As stated above, those findings were open to the Delegate on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3 makes a bear assertion that does not demonstrate any error capable of review by this Court.
Ground [4] again is a bear assertion that does not demonstrate any error capable of review by this Court.
Ground [5] asserts disappointment in the Delegate’s decisions and asserts that the Delegate ignored the applicant’s inability to return to China and that his medical problem needed to be treated in Australia.
Ground [5] appears to restate the applicant’s complaint in Ground 1 and Ground 2 which have been dealt with above in these reasons.
Otherwise, the applicant’s complaints in Ground 5 appear more to be a disagreement with the findings of the Delegate. As such, they invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 5 is not made out.
Ground [6] asserts that the Delegate did not “show concern” to the applicant’s waiver evidence and that he had not been fairly treated.
As the summary of the Delegate’s decision makes clear and as is stated above, the Delegate did consider the applicant’s claims and expressed its concerns about the absence of documentation and evidence to support the applicant’s claims.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the absence of any further submission to this Court from the applicant in support of Ground 5, I understand this assertion to be no more than a disagreement with the findings and conclusions of the Delegate. As stated above, such a complaint invites merits review which this Court cannot undertake.
Replication by Delegate of reasons in Recommendation
An issue was raised by me at the hearing with the respondent’s solicitor as to whether the Delegate’s decision could be affected by error where it largely replicated a recommendation provided to the Delegate, a copy of which was provided in the Court Book, marked Exhibit 1R.
The matter was stood over to 29 January 2019 and the respondent was directed to make submissions on the issue. On 7 December 2018, submissions were filed by the respondent. On 29 January 2019, both parties explained that they had no further submissions to make.
The “recommendation” was in a document titled “Submission to Delegate Request for Waiver of Condition 8534” (“the Recommendation”). The Recommendation contained the following headings: Details of the Visa Applicant; a Summary of the Applicants Request/Visa History; the Legislative Criteria to be Satisfied; an Assessment of the Circumstances of the Applicant against reg.2.05(4) of the Regulations; an Assessment of the Circumstances of the Applicant against reg.2.05(5) of the Regulations; an Assessment of the Circumstances of the Applicant against reg.2.05(4) of the Regulations; an Assessment of the Circumstances of the Applicant against reg.2.05(5A) of the Regulations; an Assessment of the Circumstances of the Applicant against reg.2.05(6) of the Regulations; Conclusion; and, Recommendation.
In a box following completion of the Recommendation headed “The Delegate’s Comments”, the Delegate appears to have stated as follows:
“Agree – not waived. I am not satisfied that these circumstances are of the kind set out in sub-regulation 2.05(4) of the Regulations”
The Recommendation is dated 16 May 2018. The Delegate’s decision record is dated 4 June 2018. The Delegate’s decision record contained the following headings: The Client’s Claims; Information and Evidence Considered; Reasons; and, Decision.
I accept the respondent’s counsel’s submission that the Delegate was not applying template reasons. Nor was the Delegate copying extracts from other decisions in similar cases.
In Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518 at 529, Beazley J stated as follows:
“Procedural fairness requires a decision-maker to apply an independent mind to the application subject of administrative action. A decision-maker is entitled to have regard to research and investigations carried out by other as well as to assessments and reports and recommendations prepared by others in the course of the administrative process. A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker” (emphasis added)
I accept that this Court should apply the observations of Beazley J, although obiter dicta.
I further accept that adopting recommendations in the context of a decision that is not an administrative review does not of itself suggest that a decision maker has not brought an independent mind to the relevant issues. I accept that the Delegate made a deliberate decision to adopt the reasons in the Recommendation.
In Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 553, Nicholson J stated that decision makers should not have to engage in unnecessary re-wording simply to avoid an inference that the decision maker did not bring an independent mind to bear. I accept that mere repetition of the reasons the decision maker has concluded are correct, is not sufficient by itself to demonstrate a lack of independence or a failure to discharge the relevant statutory task.
I accept that there was nothing in the Recommendation that required correction or reconsideration. The Delegate’s decision was made in the context of the Delegate’s comment cited above at paragraph 56. The Delegate’s decision record contained headings different to those contained in the Recommendation and was made more than two weeks later.
Moreover, the Delegate had the relevant material as well as the Recommendation for consideration in the Delegate’s decision. The Delegate had clearly expressed his agreement with the Recommendation as cited in paragraph 56 above.
In the circumstances, I accept that no inference arises that the Delegate failed to discharge the statutory duty solely because he largely replicated the content of the Recommendation. Upon receiving the Recommendation, the Delegate was not required to reassess or decide afresh the waiver issue. Rather, the statutory task was to exercise the discretion in the s.41(2A) of the Act.
Accordingly, the Delegate's decision is not affected by jurisdictional error and the proceeding before this Courts should be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 4 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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