El Khatib v Minister for Immigration
[2006] FMCA 1093
•5 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL KHATIB v MINISTER FOR IMMIGRATION | [2006] FMCA 1093 |
| MIGRATION – Review of delegate of the Minister’s decision – applicant granted a sponsored family visitor visa subject to condition 8503 – after entry into Australia applicant requests that the respondent waive condition 8503 – application to waive condition refused – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.41 Migration Regulations 1994, reg.2.05 |
| Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Mardini v Minister for Immigration [2005] FMCA 1409 SZDUE v Minister for Immigration [2005] FCA 1262 SZEGV v Minister for Immigration [2005] FMCA 1408 SZEGN v Minister for Immigration [2005] FMCA 1410 SZGZT v Minister for Immigration [2006] FMCA 45 |
| Applicant: | MOHAMAD EL KHATIB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG1341 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 20 March 2006, 26 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Arabic interpreter and a McKenzie friend |
| Advocate for the Respondents: | Ms S Hanstein |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1341 of 2005
| MOHAMAD EL KHATIB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 May 2005 for judicial review of the delegate’s decision made on 23 May 2005, refusing to waive condition 8503 that was imposed on a sponsored visitor’s visa sub-class UL679. The applicant seeks unstated relief against the decision of the delegate.
For the purposes of this application, the applicant tendered and applied for the following affidavits to be admitted into evidence:
a)Lima El Khatib, declared and affirmed on 14 July 2005 (first affidavit Lima Khatib);
b)Mohamad El Khatib, declared and affirmed on 2 March 2006 (first affidavit Mohamad Khatib);
c)Mohamad El Khatib, declared and affirmed on 3 June 2006 (second affidavit Mohamad Khatib);
d)Lima El Khatib, declared and affirmed on 22 June 2006 (second affidavit of Lima Khatib).
A Court Book (“CB”) containing the relevant documents prepared by the respondent’s solicitors was filed in these proceedings on 28 June 2005.
Background
The applicant, Mohamad El Khatib, was granted a sponsored family visitor visa sub-class 679 on 10 February 2005 by a Department of Immigration officer located at the Australian Embassy in Beirut. Imposed on the visa was condition 8503, which 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.
On 25 February 2005, the applicant entered Australia. On 2 May 2005, the applicant requested that the respondent waive condition 8503 attached to the visa. A delegate of the respondent decided not to waive the condition on 23 May 2005 (the delegate’s decision). The applicant applied to this Court on 24 May 2005 seeking review of the delegate’s decision.
The relevant legislation as contained in s.41 of the Migration Act 1958 (Cth) states:
Section 41 - Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified 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) …
(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).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
Regulation 2.05(4) of the Migration Regulations 1994 (“the Regulations”) readily provide that:
(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.
Waiver Application
A convenient summary of the wavier application is contained in the respondent’s written submissions prepared by Ms Hanstein and I adopt paragraphs 7 to 15 of those submissions:
7.The applicant’s request for waiver of the condition 8503 appears to comprise a number of documents submitted to the Department.
8.In a document entitled “A Request to have condition 8503 waived” he stated that:
“My sister suffers serious depression and she also obtained a certificate from Health Service Australia as needing a carer. I am the only person in Australia available to give her assistance and to support her emotionally, physically and psychologically as she has no other immediate family here except some regular visits to her social worker, professional counsellor, psychiatrist. I am needed by my sister on a 24-hour basis.”
9.An accompanying letter from Toufic Laba Sarkis, dated 25 April 2005, provided with the request stated that:
“Health Service Australia confirmed [the applicant’s sister’s] need for her brother due to her severe depression and suicidal thoughts. [The sister] lost weight, she also has a cancerous lump under her right arm. She has been brutally tortured and she is psychologically worn out”.
10.Documentation from Health Services Australia Ltd, in respect of a Carer Visa Assessment, included a summary of clinical findings relating to the applicant’s sister’s impairment in terms of “reactive depression from tragic events related to her ex husband’s violence and his abduction overseas of her son. Continuing psychiatric care is needed.”
11.On 13 May 2005, the applicant provided to the Department a statutory declaration, made on 12 May 2005, in which he stated:
“On or about October 2002 I applied for a visitor visa to see my sister Lima who was suffering depression because of her marital problems. My sister stayed with me in Lebanon for approximately one year. My sister returned to Australia approx 2 weeks before me. Her health deteriorated badly and she started to see doctors, counsellors and at present she needs continuous assistance because of her medical condition which is serious”.
12.A report provided by a professional counsellor, dated 18 March 2005, stated that:
“[The applicant’s sister] was referred to me … for counselling (sic) 2 years ago. She was going through a severe depression caused by the kidnapping of her child by her ex-husband. [The applicant’s sister] underwent a few sessions of counseling (sic) in which the right option for her was to go overseas to Lebanon and to try to get her son back. I start seeing [the applicant’s sister] again 3 weeks ago. Her condition has worsened as she had suffered a lot of stress overseas while training to gain custody of her child through several court cases. [The applicant’s sister] was also not allowed to leave the country (Lebanon) during the court cases for religious reasons as she was still considered the wife of her ex-husband. [The applicant’s sister] came back to Australia after the conclusion of the court where she did not gain custody of her child. [The applicant’s sister] still suffers severe depression and it may be a long time before she can pull herself out of her depression”.
13.An email from the professional counsellor to the Department dated 20 May 2005 confirmed that the counsellor provided counselling to the applicant’s sister during the period from 5 September 2003 to 14 February 2004 and then from 17 February 2005.
14.Further letters were sent to the Department by Mr Laba Sarkis on 19 May and 20 May 2005. The letter of 19 May 2005 stated:
“[the applicant’s sister] has suffered sustained physical abuse and has received cruel, inhumane and degrading treatment at the hands of her husband and most importantly the abduction of her son and the forging of her signature by the ex-husband, who is now under investigation.”
15.The letter of 20 May 2005 submitted that the condition 8503 imposed on the Visa should be waived for the following reasons:
(a) Health Service Australia approved her critical situation;
(b) She suffers cancer and urgently an operation is needed;
(c) She is extremely depressed and has suicidal thoughts.
Delegate’s Decision
A convenient summary of the delegate’s decision was contained in the respondent’s written submissions prepared by Ms Hanstein and I adopt paragraphs 16 and 17 of those submissions:
16.By letter dated 23 May 2005, the applicant was informed that his request for the waiver of the condition 8503 imposed on the Visa was refused. The letter stated:
“[b]ased on the information presented, I have determined that you failed to satisfy Reg 2.05(4). Your request to care for your sister who suffers from depression does not constitute a major change in circumstances. There are no compelling circumstances that prevent you from lodging an application for the appropriate visa offshore”.
17.The Departmental Minute, prepared in respect of the applicant’s request for the waiver of the condition 8503 and agreed with by the Delegate, includes the following:
a) the circumstances (set out in the waiver request as compelling and compassionate circumstances) did not occur since the Visa was granted. The applicant did not provide any substantial evidence that circumstances have occurred since the grant of the Visa. The applicant’s sister’s depression was a pre-existing condition.
b) there had not been a major change in the applicant’s circumstances. The applicant had been looking after his ill sister who had been suffering depression for a period of time and whose medical condition was pre-existing at the time of the visa grant;
c) the circumstances were not outside the applicant’s control. He was aware of the condition 8503 and of his sister’s pre-existing medical condition before departing Beirut (and coming to Australia);
d) the applicant’s circumstances were not compelling. His request to look after his sister was noted but evidence provided in support of the waiver request showed the applicant’s sister was receiving community support to assist her with her illness including regular counselling; and
e) the applicant’s circumstances were compassionate in nature.
Application for Review of the Delegate’s Decision
On 24 May 2005, the applicant filed an application for review under s.39B of the Judiciary Act 1903. This application did not include any specific grounds of review. However, under the heading ‘interim or procedural orders sought’, the applicant does list the following two issues that could be interpreted as grounds of review:
1.The decision is extremely unreasonable. We ask DIMIA to apply the law correctly and waive 8503 condition.
2.The Australian citizen has extreme compelling circumstances and was approved by HAS to have her brother with her. (copied without alteration or correction)
On 18 July 2005, the applicant filed an amended application, which contained the following grounds:
1.The Department of Immigration and Multicultural and Indigenous Affairs made a decision which is extremely unreasonable and contrary to the regulations.
2.The Department erred in law in misinterpreting the requirements for waiving the 8503 no further stay condition contrary to the requirements of the Migration Regulation 2.05.
Reasons
The applicant appeared as a self-represented litigant with the aid of an Arabic interpreter and Mr Toufic Laba-Sarkis acting as a McKenzie friend. The Court documents indicate that Mr Laba-Sarkis has been involved with this matter for some time and confirmed to the Court that he was assisting the applicant as a voluntary community worker.
Mr Laba-Sarkis assured the Court that he was receiving no remuneration for the assistance that he was giving the applicant in these proceedings.
Ms Hanstein, appearing for the respondent, indicated that she had a number of objections to raise in respect of the affidavits filed by the applicant in these proceedings. In respect of the first affidavit of Lima Khatib, paragraphs 2 to 9 inclusive were objected to on the basis that this was all new material that was not before the decision maker. Paragraphs 10 and 11 were not in the proper form and could only be considered as submissions. Paragraph 12 was objected to on the ground of hearsay and was in effect a submission. Paragraph 14, with the exception of the first sentence, which could be considered a submission, was objected to on the basis that it was all new material that was not before the delegate. Paragraph 15 was objected to on the basis of relevance and was in effect a submission. Paragraph 16 was objected to on the ground of hearsay and that material had not been put before the delegate and could be nothing more than a submission. I accepted the objections raised by Ms Hanstein and ruled against the admissibility of paragraphs 2 to 16 inclusive. Consequently, the only material left in that affidavit was paragraph 1, which stated, “I am an Australian citizen and a sister of Mohamad El Khatib (the applicant).”
Attached to the first affidavit of Lima Khatib were a range of additional documents which included:
a)Hand written letter from Dr Maher Milad dated 1 July 2005. This document was not before the delegate.
b)Hand written letter from Dr Soraya Alami dated 15 July 2005. This document was not before the delegate.
c)
Copy of the Migration Review Tribunal decision dated
29 September 2003, which addresses the review of the visa refusal – sub-class 679 – genuine visit – adequate funds – clause 4011 risk factor.
d)
NSW Police – statement of a witness in the matter of an AVO/domestic dispute recorded at Bankstown Police Station,
23 April 2003 by Lima El Khatib.
e)Photocopied page of passport of Adam Azzam.
f)Photocopies of various correspondence relating to a Westpac Bank deposit covering a security bond of $10,000 posted by Lima El Khatib as a guarantee that Mr Mohamad El Khatib will comply with the sponsor visitor’s visa conditions.
g)Photograph of Lima El Khatib with her son Adam as a baby.
h)Departmental letter dated 8 December 2003 addressed to Ms Lima Khatib regarding the security deposit to be posted as a guarantee.
The relevance of much of this material is not immediately apparent and is not directly referred to in the first affidavit of Lima Khatib.
In respect to the second affidavit of Mohamad El Khatib, Ms Hanstein raised objections to paragraphs 1 and 6 of that document. The first paragraph was objected to on the ground of relevance and the sixth paragraph in respect of the fact that the material is in the form of a submission and is therefore not evidence.
Ms Hanstein also raised an objection to the role of Mr Laba-Sarkis in these proceedings and referred the Court to the decision of His Honour Emmett J in SZDUE v Minister for Immigration [2005] FCA 1262.
I informed the Court that Mr Laba-Sarkis had appeared in this Court on previous occasions in the role of a McKenzie friend and had been permitted to read to the Court submissions prepared by the applicant, provided that Mr Laba-Sarkis did not attempt to perform the role of a lay advocate. In previous proceedings I had required Mr Laba-Sarkis to file an affidavit setting out his experience and the capacity in which he appeared before the Court (see SZEGV v Minister for Immigration [2005] FMCA 1408; SZEGN v Minister for Immigration [2005] FMCA 1410; Mardini v Minister for Immigration [2005] FMCA 1409; SZGZT v Minister for Immigration [2006] FMCA 45). Mr Laba-Sarkis has also been warned of the possible cost penalties that he may incur if he does perform the role of a lay advocate and circumstances that would justify making a cost order against him.
The applicant in these proceedings had not filed any written submissions prior to the hearing in accordance with the directions made by Registrar Segal on 7 June 2005. When the applicant was asked whether he wanted to make any oral submissions, he indicated that there was issues which he wished to draw to the Court’s attention and asked whether Mr Laba-Sarkis would convey these issues to the Court. It soon became apparent that the applicant did not have any coherent or planned submissions to make to the Court.
In light of the rejection of a substantial part of the affidavit material filed by the applicant and the lack of submissions, I indicated that I intended to adjourn the hearing in order that the applicant could seek advice and properly prepare his application. I indicated to the applicant that I believed that much of the material and the advice that he had received was inappropriate and irrelevant to the issue before the Court, which was a judicial review of the delegate’s decision not to waive the 8503 condition attached to his visa. I granted the applicant leave to file a new affidavit by 5 June 2006 and the respondent to file any further affidavit material by 19 June 2006. The applicant was also to pay costs thrown away by today’s adjournment fixed in the sum of $500. Mr Laba-Sarkis indicated to the Court that he would endeavour to arrange legal advice for the applicant if he could find a member of the legal profession willing to assist. The matter was adjourned to
26 June 2006 at 2.15pm.
The applicant filed two affidavits prior to the rescheduled hearing:
a)Mohamad El Khatib, declared and affirmed on 3 June 2006 and filed on June 2006 (second affidavit Mohamad Khatib);
b)Lima El Khatib, declared and affirmed on 22 June 2006 and filed on 23 June 2006 (second affidavit Lima El Khatib).
The hearing reconvened on 26 June 2006 and Ms Hanstein indicated to the Court that she wished to raise objections to both of the new affidavits. In respect of the second affidavit filed by Mohamad Khatib, objections were raised in relation to paragraphs 9, 10 and 17. The objections to paragraph 9 were that the material was hearsay and was nothing more than a submission. Similarly, in paragraph 10, the first sentence of the paragraph was hearsay and also a submission. In paragraph 17, the last sentence again was a submission and not evidence. These three objections were upheld. In respect to the second affidavit of Lima Khatib, objections were raised in respect of paragraphs 2 to 10 inclusive on the ground that a majority of the material was not before the delegate and the material is nothing more than submissions. These objections were upheld.
When the applicant was invited to make any oral submissions, he was assisted by Mr Laba-Sarkis, who assisted the applicant in making the submissions in English to the Court from a prepared statement. It was acknowledged that the applicant should have applied for the appropriate visa overseas. This was not possible in the circumstances, as when the applicant arrived his sister was suffering from severe depression and required his ongoing assistance. The applicant claimed that he was not told that he could make an application for the appropriate visa when he applied to the Australian Embassy in Beirut. It was claimed that the Embassy had been negligent by not giving him the appropriate advice when he had been applying for his original visa. There was also a submission that the applicant was a Palestinian refugee in Lebanon, but this was not fully developed into any form of submission relevant to these proceedings.
The applicant submits that the letter written to the Department on
20 May 2005, contained important information which was overlooked by the Departmental officer. (CB 25) Further, it was submitted that the Department failed to make enquiries about the issues raised in the letter sent by Mr Laba-Sarkis on behalf of the applicant and his sister. In addition, there were submissions that the applicant’s sister was suffering considerable stress because of these circumstances and the uncertainty as to whether her brother would be able to stay and assist in her care. This was being manifested in her suffering considerable pain induced by this stress.
Ms Hanstein, in her written submissions, submits that the delegate properly considered the compelling and compassionate circumstances contended for by the applicant. These appear to have included that the sister was unwell and required care and that the applicant wished to provide that care. It was open to the delegate, on the material before her, to find that those factors did not amount to circumstances that had developed since the grant of the visa. In particular, it was not open to the delegate to find on the material before her, particularly medical evidence, that the sister’s illness amounted to circumstances developed since the granting of the visa. (The nature of the applicant’s sister’s illness appears to have been depression. While there was a suggestion by Mr Laba-Sarkis that the applicant’s sister had cancer, that is not the claim that was made by the applicant and is not supported by legal evidence provided in support of the waiver request). On that basis alone, the applicant failed to meet the requirements of reg.2.05(4) of the Migration Regulations 1994, such that the power to waive the condition 8503 was not enlivened.
Ms Hanstein further submits that in any event, it was also open to the delegate on the material before her to find that the sister’s illness and the applicant’s desire to care for her did not result in a major change in the applicant’s circumstances. In Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506 at [8] Dowsett J stated:
In subreg 2.05(4), the word "circumstances" is used with three different meanings. In the introductory part of the sub-regulation, the word is used to describe collectively the conditions which will enliven the first respondent's power to waive a relevant condition. The word is then used in par 2.05(4)(a) to describe `compelling and compassionate' factors which must have developed since the issue of the visa. In subpar 2.05(4)(a)(ii), the word is used to describe the whole of the relevant person's position, presumably to the extent that it is relevant to the issue of a visa. The `compelling and compassionate circumstances' must themselves result in a `major change' to the person's "overall" circumstances. This requirement seems to contemplate a comparison of the relevant person's position prior to the issue of the visa with his or her position as a result of the `compelling and compassionate' circumstances.
Ms Hanstein submits that in the present case, it was open for the delegate to find that there was no major change in the applicant’s overall circumstances including on the basis of the evidence of his sister’s illness existing prior to the grant of the visa and his evidence that she was living with him for a year prior to the granting of the visa. Further, the applicant’s sister’s intention to return to Australia apparently also existed prior to the granting of the visa since he retuned to Australia on the day the visa was granted.
Ms Hanstein drew the Court’s attention to the fact that none of the matters that were raised orally by the applicant tie back to the grounds in the amended application filed on 18 July 2005. The grounds raised by the applicant himself appear to be a complaint about what happened in the Australian Embassy in Beirut. The applicant appears to rely on pages 21 and 22 in the Court Book which is a series of emails. These commence with a request to DIMIA, Beirut setting out the applicant’s personal details and saying:
The above named applicant claims that his sister who is A/a Citz has severe depression and he is trying to lodge an application for carer.
I would appreciate background on the imposition of the 8503 condition of his v/v, as there are no records on ICSE OFFSPRING.
Please note that this request is subject to service standards, so your early response would be appreciated.
Then the response sets out that the application was refused at primary stage but remitted by the Migration Review Tribunal, sets out some notes of the primary decision, then states:
There are no notes regarding imposition of 8503 condition as this condition is mandatory for Subclass 679 visas.
Given that the applicant could have and should have applied for a carer visa offshore, I would recommend against approving an 8503 waiver in this case.
Ms Hanstein submits that what these facsimiles show is that in respect of whether the 8503 condition should be waived, the delegate, or the officer preparing the submission for the delegate, was simply making an enquiry as to the circumstances surrounding the imposition of the 8503 condition. The response she received was that it was mandatory for the 8503 condition to be imposed on this type of visa. That is not the case with all types of visa where condition 8503 applies. However, because it was mandatory in this case, that was all the information that the officer in Beirut provided. The comment made by the officer in Beirut was not a recommendation or comment that was solicited by the officer in Australia. The decision in respect of the request to waiver the condition 8503 was made in Australia and it is not apparent from that decision that the decision maker acted on the recommendation of the Beirut officer. It is submitted that nothing arises from the comment of the officer in Beirut or of the processing of the visitor visa application that took place in Beirut.
Ms Hanstein submits that the relevant matter before the decision maker in Australia was whether the circumstances set out in reg.2.05(4) of the Migration Regulations had been met. The question was, since the granting of the visa on 10 February 2005, whether compelling and compassionate circumstances developed over which the applicant had no control and which resulted in a major change in the applicant’s circumstances. The delegate found:
Based on the information presented, I have determined that you failed to satisfy reg.2.05(4). Your request to care for your sister who suffers from depression does not constitute a major change in circumstances. There are no compelling circumstances that prevent you from lodging an application for the appropriate visa offshore.(CB 31.5)
There is also a submission prepared for the decision maker which sets out an assessment against the legislation and is entitled “request for waiver of condition 8503”.(CB 27) Included in that advice is the following:
b) Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
NO. The applicant has not provided any substantial evidence that circumstances have occurred since the grant of his visa. Mr El Khatib’s sister’s depression is a pre-existing condition.
c) Did the circumstances result in a major change to the client’s circumstances?
NO. I am not satisfied that the applicant has experienced a major change in his circumstances. Mr El Khatib claims to be looking after his ill sister who has been suffering depression for a period of time. His sister’s medical condition was pre-existing at the time of visa grant.(CB 29.3)
In relation to these two matters, Ms Hanstein draws the Court’s attention to pieces of evidence that are relevant. This material is contained in the Court Book and has been referred to in the written submissions prepared by Ms Hanstein reproduced in paragraph 7 of these Reasons. The relevant references are:
a)A document entitled ‘A request to have condition 8503 waived’.(CB 5)
This refers to the applicant’s sister suffering serious depression and the fact that she has obtained a certificate from the Health Service Australia stating that she needs a carer. The relevant passages are as follows:
…The circumstances of my sister are so severe and my circumstances have changed since my arrival on 25th of February 2005. My sister suffers serious depression and she also obtained a certificate from the Health Service Australia as needing a carer.
I am the only person in Australia available to give her assistance and to support her emotionally, physically and psychologically as she has no other immediate family here except some regular visits to her social worker, professional counsellor, psychiatrist.
I am needed by my sister on a 24-hour basis…
b)A letter from Toufic Laba-Sarkis dated 25 April 2005.(CB 6)
It is unclear in what capacity Mr Laba-Sarkis is acting in the preparation and forwarding of this letter. However, from these submissions to the Department, it appears that he is acting in the capacity of a friend or an assistant on an informal basis. The letter states:
…I stress that the whole history of Lima was documented and Health Service Australia confirmed her need for her brother due to her severe depression and suicidal thoughts. Lima lost weight, she also has a cancerous lump under her right arm…
c)Documentation from Health Services Australia Limited.(CB 10)
Ms Hanstein submits that there is a reference to the applicant’s sister suffering reactive depression from tragic events relating to her ex-husband’s violence and his abduction overseas of her son and that continuing psychiatric care was needed. There is no reference to any cancer. The report states:
Reactive depression from tragic events related to her ex-husband’s violence and his abduction overseas of her son. Continuing psychiatric care is needed.
d)Statutory Declaration of the applicant dated 12 May 2005.(CB 14)
The applicant’s statutory declaration says that he applied for a visitor’s visa on or about October 2002 to see his sister who was suffering depression because of her marital problems. Significantly there is no mention of the sister suffering cancer:
My sister stayed with me in Lebanon for approximately one year. My sister returned to Australia approximately two weeks before me. Her health deteriorated badly and she started to see doctors, counsellors, and at present she needs continuous assistance because of her medical condition which is serious.
e)A report by Maha Hamad, Professional Counsellor, MAIPC dated 18 March 2005.(CB 16)
This report indicates that the sister had been suffering from depression for some period:
…Ms Lima was referred to me by her family DR for counselling 2 years ago. She was going through a severe depression caused by the kidnapping of her child by her ex husband…
f)Email from Maha Hamad, Professional Counsellor.(CB 26)
This correspondence sets out in detail the period that the applicant’s sister had been receiving from the counsellor:
…here is the dates I started counselling Miss Lima El Khatib. I first so lima for an initial on the 5th September 2003 and onwards on regular basis till the 14/02/04. miss lima went overseas then, and when she came back she started again on the 17/02/05 and still going.
g)A letter to Department from Mr Laba-Sarkis dated 19 May 2005.(CB 23-24)
h)A letter from Mr Laba-Sarkis to Mr John Sartent dated 20 May 2005.(CB 25)
i)This is a further submission from Mr Laba-Sarkis in his capacity as a friend or an assistant on an informal basis:
…Lima is an Australian citizen and her case must excite your approval to have the visa 8503 given to her brother, Mohamad, waived for the following reasons:
(a) Health Service Australia approved her critical situation;
(b) She suffers cancer and urgently an operation is needed;
(c) She is extremely depressed and has suicidal thoughts.
Ms Hanstein submits that in response to the submissions made to the Court by Mr Laba-Sarkis on behalf of the applicant, he is saying that the delegate should have made further enquiries in relation to the applicant’s sister suffering cancer and urgently needing an operation. Ms Hanstein submits that the submission presented to the Court by Mr Laba-Sarkis should fail for a number of reasons. Firstly, it is for the applicant to make out his own case and it is not up to the delegate to investigate all matters that may have been suggested by a document sent in by a friend of the applicant. It is up to the applicant to put before the delegate anything that he wishes to be taken into account. Ms Hanstein contends that it is not clear that the delegate did not take into account the claim that the applicant’s sister was suffering cancer. The reason the decision focussed on the applicant’s sister’s depression was because the depression was emphasised in the material that was provided to the Department by the applicant’s sister. Supporting material in respect of the depression was also presented by the applicant himself and is contained in the medical evidence that was provided. There was absolutely no medical evidence provided suggesting that the applicant’s sister was suffering from cancer. Nor is there anything contained in the material recently placed before the Court to substantiate that the applicant’s sister was suffering from cancer in early 2005.
Ms Hanstein submits that there is no error by the delegate in not making any further enquiries in respect of the cancer claimed. The applicant and Mr Laba-Sarkis have not identified the section in the Act or the requirement at common law that would require or necessitate those further enquiries to be made.
In relation to the applicant’s submissions that the delegate overlooked important information, Ms Hanstein submitted that it was either an attempt to restate the applicant’s previous submissions in a different way, or alternatively, to raise the claim that the applicant’s sister was suffering cancer. It is submitted that the delegate was clearly aware that Health Service Australia had issued a certificate qualifying the applicant’s sister for a carer visa in respect of depression, and that is apparent from the report prepared by Elizabeth Donaghy, entitled ‘Request for Waiver of Condition 8503’.(see CB 27-30) It is not the case that the delegate was not aware of the matter. Ms Hanstein submits that it was open to the delegate to find that notwithstanding the issue of the Health Service Australia certificate since the grant of the visa, such grant did not amount to a change in circumstances, particularly in light of the evidence that the depression underlying the issue of the certificate had been identified, diagnosed and recorded for some considerable time.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Ms Hanstein, for the respondents, assisted the Court with written submissions which were supplemented by oral submissions. I initially adjourned the proceedings because it was apparent that the applicant had little comprehension of the operation of this Court and what he was attempting to challenge in respect of the delegate’s decision. The advice that the applicant had received in the preparation of his case was misguided and placed him in an unamiable position. Despite the good intentions of his community worker, he was apparently not able to obtain the assistance of a qualified practitioner to assist and appear for the applicant. Further documents in the form of new affidavits were submitted. Regretfully, these did not address the issue that was before the Court, but instead sought to raise a review of the merits of the original application on issues that were clearly not before the Minister’s delegate. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists that suggested the Tribunal made a jurisdictional error in its decision making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 September 2006
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