El Maarbani v Minister for Immigration
[2018] FCCA 478
•28 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL MAARBANI v MINISTER FOR IMMIGRATION | [2018] FCCA 478 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Applicant for judicial review had been granted a Visitor visa subject to condition 8503 “No Further Stay” – second request to Minister to waive the condition – Delegate of Minister declines waiver application because circumstances not “compelling” and not “over which the applicant had no control” under reg.2.05(4) of Migration Regulations 1994 (Cth) – application to this Court for judicial review of delegate’s refusal – delegate correctly construed reg.2.05(4) – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41, 338 Migration Regulations 1994 (Cth) |
| Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 |
| Applicant: | ARKAN EL MAARBANI |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2081 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2018 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondent: | Ms A. Lucchese |
| Solicitors for the Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 3 July 2017 is dismissed.
The Applicant is to pay the Respondent’s cost of the proceeding in the sum of $3,100.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2081 of 2017
| ARKAN EL MAARBANI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Lebanon, aged 24 years, having been born on 15 March 1993.
He entered Australia on a Visitor visa on 15 November 2012, subject to Condition 8503, which is known as the “No Further Stay” condition, and by which the Applicant was precluded from applying for another visa except a protection or specified temporary visa allowing him to remain in Australia after his Visitor visa expired, such expiry occurring in 2013.
By s.41(1) of the Migration Act 1958 (Cth) (the Act), the Migration Regulations 1994 (Cth) (the Regulations) are authorised to provide that visas, or visas of a specified class, are subject to specified conditions.
By s.41(2)(a) of the Act, the Regulations may specifically provide that a visa is subject to a condition that 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. Condition 8503 is such a condition as envisioned by s.41(2)(a).
Condition 8503 states as follows:
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) permits the Minister (or his Delegate) in prescribed circumstances to waive a condition such as Condition 8503. The prescribed circumstances appear in reg.2.05(4) of the Regulations as follows:
(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.
Accordingly, to obtain a waiver of Condition 8503 the Applicant was required to establish that “compelling and compassionate circumstances” had occurred over which he had no control and which had resulted in a major change to his personal circumstances.
The Applicant has made two applications to waive Condition 8503. The first was on 1 April 2016 (April waiver request), on the basis that:
a)the Applicant’s wife suffered depression, could not be alone, and was emotionally and psychologically dependent on the Applicant; and
b)he was unable to return to Lebanon “due to the current conditions”.
The April waiver request was refused.
Decision of Delegate
Then on 10 May 2017 the Applicant lodged a second request for waiver of Condition 8503, which is the subject of the present proceeding in this Court, which was refused by the Delegate on 31 May 2017. The Applicant then filed his present Application in this Court, on 3 July 2017, which seeks to have quashed and redetermined the Delegate’s decision to refuse this second request for a waiver.
As this was the second request for a waiver, reg.2.05(4)(b) of the Regulations required that the Minister be satisfied that the compelling and compassionate circumstances asserted by the Applicant in support of the request for waiver were such that were substantially different from those that had been considered in the April waiver request.
The decision of the Delegate refusing to waive Condition 8503 is not a Tribunal-reviewable decision as provided by s.338 of the Act and therefore is not susceptible to any merits review application, so it was necessary for the Applicant to approach this Court with respect to the decision by way of an application for judicial review: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (Ahmed) at [11] per Perram J and Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 at [4] per Jagot J.
Further, there was no obligation on the Delegate to provide reasons for her decision: see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J (as he then was); Kaur v Minister for Immigration and Citizenship [2011] FCA 969 at [8] per Reeves J and Ahmed at [11].
Notwithstanding that the Delegate was under no legislative requirement to provide a statement of reasons for her refusal of a waiver of Condition 8503, she quite properly did so in her written decision of 31 May 2017.
The Delegate considered that the only circumstance that was substantially different in the present waiver request was that the Applicant’s wife was pregnant, that she needed his support and care and that she could not be left alone. In the result, the Delegate acknowledged that the Applicant’s circumstances were “compassionate”, but were neither compelling, nor a circumstance over which the Applicant had no control.
Jurisdictional error could conceivably be shown to be present in this case if the Delegate were to manifest a legally erroneous view as to what needed to be satisfied with respect to “compelling circumstances”.
I have considered the Decision Record of the Delegate and in my view the Delegate has correctly directed herself in accordance with those authorities as to the meaning and sense of the word “compelling”.
The meaning given to the word “compelling” by the Delegate accords with the meaning given by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 (M64/2015) at [31] and that of Gageler J at [64].
At [31] of M64/2015 their Honours said:
[31] In addition, 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. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted.)
At [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted.)
In considering the issue required by reg.2.05(4) of the Regulations as to whether the circumstances were such that the Applicant had no control over them, the Delegate was of the view that starting a family is a natural progression of a marriage relationship, and she did not consider the fact of pregnancy to be a circumstance which was outside the Applicant’s control. The expression “over which the person had no control” found in reg.2.05(4)(a)(i) in this context refers to occurrences and events which the Applicant could do nothing to prevent or avoid: see Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 at 306 – 307 per Mansfield J.
The Delegate further considered that the Applicant’s wife’s pregnancy was compassionate, but not “compelling”, in that the circumstances were not sufficiently forceful to lead the Delegate to decide to waive Condition 8503. The Delegate referred to the medical evidence and the Applicant’s claims and acknowledged that his wife might benefit from the Applicant’s continued presence in Australia, but that her doctor was addressing her psychological condition, and she was able to access support services in Australia. The Delegate also noted that the Applicant’s wife was born in Australia, an Australian citizen and had additional family members in Australia, and so had access to family support in Australia. The Delegate acknowledged that the separation occasioned by the Applicant’s departure from Australia might cause some emotional stress, but considered that the separation might only be temporary, and again was not sufficiently forceful to lead to the waiver of the condition.
In the result, the Delegate was not satisfied that the circumstances met the criteria in reg.2.05(4) of the Regulations, and she refused to waive Condition 8503 under s.41(2A) of the Act.
Grounds
The Application filed by the Applicant in this Court contains two Grounds:
1.The Delegate of the Minister failed to understand the compelling circumstances and the consequences of being away from my wife at this vulnerable time during her pregnancy and the Department was aware of her previous miscarriage and failed to ask the question as to what will happen to my wife if I return to Lebanon.
2.The Delegate of the Minister failed to accept that my circumstances and my wife’s circumstances are forceful and indeed compelling and failed to apply the law correctly and that my wife continues to need my support and care due to her current circumstances.
In my view, these Grounds really seek to argue with the merits of the Delegate’s decision, and to seek and invoke in this Court a merits review which is not available.
As to Ground 1, it seems to me clear that the Delegate did consider the relevant circumstances of the Applicant and his wife, but, unfortunately for him, was not satisfied that they were compelling.
As to Ground 2, I consider that the Delegate has not “failed to apply the law correctly”. The Delegate set out the relevant legislative requirements and framework, and correctly instructed herself concerning the meaning and sense of “compelling circumstances”.
Conclusion
Unfortunately for the Applicant, in my view, both Grounds fail to establish jurisdictional error, and accordingly, the Application filed in this Court must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 28 February 2018
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