El Etri v Minister for Immigration
[2010] FMCA 898
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL ETRI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 898 |
| MIGRATION – Delegate’s decision – waiver of visa condition precluding on‑shore visa application – open to delegate to find that applicant’s circumstances not beyond his control and not ‘compelling’ – application for judicial review dismissed. |
| Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth), r.2.05, Sch.8 Item 8503 |
| Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 SZFOP v Minister for Immigration [2010] FMCA 438 SZGBR v Minister for Immigration [2005] FMCA 824 SZIAI v Minister for Immigration & Citizenship [2009] HCA 39 |
| Applicant: | HAFEZ EL ETRI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1884 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 11 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1884 of 2010
| HAFEZ EL ETRI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr El Etri entered Australia on 1 November 2008 on a sponsored family visit visa (subclass 679). The visa was valid until 1 February 2009, and had attached to it a condition in terms of Migration Regulations 1994 (Cth) Sch.8, item 8503:
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.
Mr El Etri remained in Australia on bridging visas, while he sought to obtain residence by applying for a protection visa, but he was unsuccessful. He then applied for a waiver of Condition 8503 on 10 August 2010, to allow him to seek other on-shore visas.
Power to waive an 8503 condition is conferred on the Minister by s.41(2A) of the Migration Act “in prescribed circumstances”. Regulation 2.05(4) contains the preconditions to that discretion.
2.05Conditions 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.
In the present case, Mr El Etri’s application for a waiver presented the “details of your reason for requesting a waiver” as follows:
I wish to apply for a consideration of my waiver to 8503 if no further stay in Australia as I was offered an employment opportunity within my field of expertise. If required I can supply a letter & any other supporting documents from the company that offered me the job as they need my skills to upgrade their employees in training and coaching and further their skills and business opportunity to expand within the company. I would like to be considered for the waiver request and I would like to be considered of an interim visa whilst my application for temporary skilled Migration Visa subclass (457) is in progress. I am a highly experienced T Form worker & a one form work needs my skills to train their apprentices.
The application was accompanied by some financial statements from a company “A one Formwork and Construction”, and by no other material in support.
A delegate of the Minister made a decision on the application on 13 August 2010, by signing a submission prepared by another officer. The delegate did not himself record his reasons for refusing the application, other than stating in the letter informing Mr El Etri of the decision:
Specifically, it was not accepted that since you were granted the visa that was subject to the 8503 condition that circumstances have developed over which you had no control and resulted in a major change to your circumstances and are both compelling and compassionate.
In effect, this indicated that none of the three conditions in reg.2.05(4) had been established to the delegate’s satisfaction.
It might be possible to infer that the delegate accepted the reasoning in the submission before him concerning these matters. It contained the following assessment:
ASSESSMENT OF THE CIRCUMSTANCES OF THE CLIENT AGAINST SUBREGULATION 2.05(4):
a)If the client has previously had a request for a waiver of condition 8503 and the condition was not waived, are the circumstances provided in relation to this particular request substantially different from those considered previously?
N/A. This is the first waiver request from the client.
b)Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
Yes. Mr Hafez El Etri travelled to Australia on a Sponsored Family Visitor Visa with a $10,000 Bond to visit his Aunt. Mr El Etri remained in Australia beyond his visa validity period and applied for Protection. This application was refused.
Mr El Etri now claims he has been offered employment in Australia and would like to apply for a Temporary Business Visa and remain in Australia.
c)Did the circumstances result in a major change to the client’s circumstances?
No. Mr El Etri was granted a three month Sponsored Family Visitor Visa to visit his Aunt in Australia.
Mr El Etri’s decision to remain in Australia beyond his visa validity period and apply for Protection does not constitute a major change to his circumstances.
d)Were the circumstances outside the client’s control?
No. Mr El Etri made a conscious decision to remain in Australia beyond his visa validity period, apply for Protection and pursue employment in Australia.
These decisions are completely within his control.
e)Are these circumstances compelling?
No. Mr El Etri would like to remain in Australia and apply for a Temporary Business Visa as he has an opportunity to commence employment with a local company.
However, Mr El Etri is currently a holder of a bridging visa E following an unsuccessful application for Protection.
Departmental records confirm that Mr El Etri has a fully paid ticket to return to Lebanon on 22 August 2010. Mr El Etri was aware of his No Further Stay condition on his Sponsored Family Visitor Visa but still remained in Australia.
Mr El Etri’s decision to pursue employment in Australia does not constitute circumstances of a compelling nature.
f)Are these circumstances compassionate?
No. Compassionate circumstances do not exist as Mr El Etri would like to remain in Australia to pursue employment opportunities.
Although there are some uncertainties arising from the terseness of the assessment, it appears to me that the recommending officer identified the relevant ‘circumstances’ which had developed since the grant of the subclass 679 visa, as encompassing Mr El Etri’s situation after deciding to remain in Australia to pursue a protection visa and employment. It appears to me that it was open, as a matter of law, for the assessing officer to assess those circumstances adversely in relation to each of the reg.2.05(4) conditions, and for the delegate to have accepted such an assessment.
In particular, I note that the test of “compelling circumstances” is a demanding test inviting an imprecise value judgment by a determining officer (see SZGBR v Minister for Immigration [2005] FMCA 824 at [20] citing Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285). It was clearly open to the delegate to conclude that Mr El Etri’s circumstances did not have this quality.
Mr El Etri has now applied to the Court to set aside the delegate’s decision and to remit the matter for further consideration. I have power to make those orders only if I am persuaded that the decision was affected by jurisdictional error, and I do not have power myself to decide whether the visa condition should have been waived.
Mr El Etri’s application has as its only ground that “the delegate failed to recognise the major changes and circumstances since the visa was granted”. This has not been clarified by any amended application or written submission.
Today, Mr El Etri made, as I understood him, four essential points in his oral submissions. They were:
i)The delegate had not considered “new information” about his proposed employment sponsorship and the personal skills which he had to take that employment.
ii)Contrary to the opinion of the assessing officer and the delegate, in Mr El Etri’s opinion, his obtaining employment in Australia was very important to him and his life and provided an important reason for him staying in Australia. He also suggested that the delegate had not taken into account the circumstances of his refugee visa application and that Mr El Etri still considers himself to be a refugee.
iii)The delegate had not explained his reasons for forming the opinions given in the letter notifying the decision.
iv)The delegate and Department had not requested him to provide more information concerning his qualifications for the proposed employment.
I have considered everything which Mr El Etri has said to me, but do not consider that he has identified any jurisdictional error.
I can find no evidence that the delegate did not take into account the information provided by Mr El Etri when making his application for waiver. It was of short compass and, in my opinion, has undoubtedly been taken into account.
Reg.2.05(4) required the delegate to form his own opinions as to the character of the circumstances shown in the waiver application. In particular, its conditions do not turn upon the opinion of the applicant for a waiver as to the importance or compelling and compassionate qualities of the new circumstances. Those adjectives refer to a mental state required to be achieved by the decision-maker (see SZFOP v Minister for Immigration [2010] FMCA 438 at [17].
In relation to Mr El Etri’s history of seeking a protection visa, this is a matter of which the delegate was probably aware from the recommending officer’s assessment, and probably took into account, although perhaps not in favour of Mr El Etri. I am unable to detect any defect in relation to that consideration which could vitiate the delegate’s decision.
The delegate was not obliged under the relevant provisions of the Migration Act to give a full statement of reasons addressing all of the material facts and considerations (see SZFOP at [9]).
Nor, in my opinion, was there any obligation on the Department or delegate to seek more information which might have assisted Mr El Etri to establish the necessary conditions, before the power to waive arose. In this respect, they were in the same position as an immigration tribunal (see SZIAI v Minister for Immigration & Citizenship [2009] HCA 39 at [1]).
For all the above reasons, I am not satisfied that the delegate’s decision was affected by any jurisdictional error, and I therefore dismiss the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 22 November 2010
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