El Maarbani v Minister for Immigration

[2017] FCCA 1202

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL MAARBANI v MINISTER FOR IMMIGRATION [2017] FCCA 1202

Catchwords:
MIGRATION – Application for judicial review of decision of delegate of Minister for Immigration and Border Protection not to waive condition 8503 that was attached to Sponsor Family Visa (subclass 679) – whether delegate considered applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.41(1), 41(2), 41(2A)

Migration Regulations 1994 (Cth), regs. 1.03, 2.05, Schedule 2, cl. 679.611, Schedule 8, condition 8503

Applicant: ARKAN EL MAARBANI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 986 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 986 of 2016

ARKAN EL MAARBANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision made by a delegate of the respondent (Minister) not to waive condition 8503 that attached to a Sponsor Family Visa (subclass 679) (Visitor visa) that had been granted to the applicant.  The applicant applied for a waiver of that condition so that he could apply for a partner visa onshore in Australia.

Background

1. The applicant is a national of Lebanon. Before 14 November 2012, when he entered Australia, the applicant was granted a Visitor visa.

2. The criteria for granting a Visitor visa are contained in clause 679 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] Clause 679.611 refers to a number of “conditions”, one of which is “condition 8503”. The word “condition” is defined in reg.1.03 to mean “a condition set out in a clause of Schedule 8, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule”. Condition 8503 provides:

   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.

   [1] For ease of expression, I will refer to the provisions that applied to the Visitor visa that was granted to the applicant in the present tense.

3. A Visitor visa is subject to condition 8503 pursuant to reg.2.05 of the Regulations, which provides that, for the purposes of s.41(1) of the Migration Act 1958 (Cth) (Act), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 to the Regulations that relates to visas of the subclass in which the visa is included.

4. Subsection 41(1) of the Act provides that “the regulations may provide that visas, or visas of a specified class, are subject to specified conditions”. Paragraph (a) of s.41(2) of the Act provides, among other things, that without limiting s.41(1), the Regulations may provide that a visa or visas of a specified class are subject to a condition that, despite anything else in the 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.

5. Subsection 41(2A) of the Act provides that 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)”. Circumstances for the purposes of s.41(2A) were prescribed by reg.2.05(4) of the Regulations, which provides as follows:

   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.

6. On 1 April 2016 the applicant applied to the Minister for a waiver of condition 8503.[2] The grounds on which the applicant relied for the waiver were that the applicant was married in May 2015, the applicant is unable to return to Lebanon “due to the current conditions”, and the applicant’s and his wife’s lives will be at risk if they apply for a partner visa overseas. The applicant also stated his wife was suffering depression, and she will “suffer a lot if [the applicant] goes overseas”. The applicant said his wife relies on him emotionally and psychologically.

   [2] CB14

The delegate’s decision

1. The delegate noted condition 8503 could not be waived without the satisfaction of the criteria identified in sub-reg.2.05(4) of the Regulations. The delegate considered each of the matters identified in that sub regulation. The delegate acknowledged:

   a)the applicant had married an Australian citizen since the grant of the Visitor visa, which amounted to a change in the applicant’s circumstances.

   b)marriage is considered a major change in an applicant’s circumstances; but the delegate found the applicant’s marriage resulted from the applicant’s personal choice and was, thus, not outside the applicant’s control.

   c)the situation in Lebanon is outside the applicant’s control. The delegate noted, however, that the unrest in Lebanon has been ongoing before the applicant was granted the Visitor visa and is still continuing. For those reasons, the delegate did not consider the situation in Lebanon constituted a major change in the applicant’s circumstances.

   d)the applicant would like to remain onshore with his Australian wife and apply for a partner visa, and that this constituted compassionate circumstances. The delegate, however, was not satisfied these compassionate circumstances were compelling. The delegate noted the applicant provided no documentary evidence to support the claims that he is unable to return to Lebanon due to its current conditions, and that his and his wife’s lives will be at risk if they apply for a partner visa for Australia in Lebanon. The delegate also noted that, although the applicant’s temporary separation from his wife may cause emotional hardship, the applicant presented no information to support the applicant’s claim that his wife is emotionally and psychologically dependent on him.

2. For these reasons, the delegate concluded the criteria prescribed by reg.2.05(4) of the Regulations were not satisfied, and the delegate, therefore, refused the applicant’s request that condition 8503 be waived.

Grounds of application and applicant’s submissions

1. The application contains the following two grounds (errors in original):

   1.The Decision Maker had sufficient evidence as to the condition in Lebanon as well as my own claim which was available as recorded by the Department yet failed to accept that my circumstances are compelling.

   2.The Department ignored that my wife and I have been living as husband and wife since 2 May 2015 and that we were and continue to be committed from October 2013 and that we met each other in May 2009 therefore the Department misunderstood how my wife is emotionally and psychologically dependent on me.

2. The applicant, who is not legally represented, also made submissions at the hearing before me. The applicant submitted the delegate did not believe the applicant loved his wife and that the applicant cannot return to Lebanon because that would put his life and the lives of his wife, and the baby they are expecting, at risk.

3. The first ground stated in the application appears to take issue with the delegate’s finding the applicant provided no documents to support his claim that he is unable to return to Lebanon due to the current conditions, and that his and his wife’s lives will be at risk if they apply for a partner visa in Lebanon. The ground appears to contend the Department of Immigration and Border Protection had information available to it to assess the current situation in Lebanon.

4. There are three difficulties with this ground. First, it was for the applicant to submit material to the delegate that was relevant to the satisfaction of the criteria prescribed by reg.2.05(4) of the Regulations. There was no obligation on the Minister to investigate matters that may have been relevant to the applicant’s satisfaction of those criteria. Second, the ground does not identify evidence of the particular conditions in Lebanon the applicant claims was available to the delegate, and the particular risk the applicant claimed those conditions posed for the applicant, his wife and the baby they are expecting. Third, the question the delegate was required to consider, and which the delegate did consider, was whether there had been a change in circumstances, including circumstances in Lebanon, after the applicant was granted the Visitor visa. Ground 1 of the application, therefore, fails.

5. The second ground claims the delegate ignored information concerning the applicant’s marriage. The delegate was aware the applicant was married and that the delegate considered that matter as giving rise to compassionate circumstances. The delegate was also aware the applicant claimed his wife was emotionally and psychologically dependent on the applicant. The delegate considered these matters, but was not satisfied they gave rise to compelling circumstances; and the delegate was not satisfied because the applicant presented no information to support the applicant’s claim that his wife is emotionally and psychologically dependent. Ground 2 of the application also fails.

6. As for the submissions the applicant made at the hearing, there is nothing in the evidence that suggests the delegate did not believe the applicant loves his wife. Further, the applicant’s submission that he could not return to Lebanon because that would put the lives of the applicant, his wife, and the baby they are expecting, at risk is an appeal to the merits of his application for the waiver of condition 8503. As I informed the applicant, the Court’s jurisdiction does not extend to considering whether the applicant satisfies the criteria for the waiver of condition 8503. I informed the applicant that the Court’s jurisdiction is limited to considering whether the delegate considered the applicant’s application for waiver according to law. Thus, the matters the applicant submitted to me at the hearing also disclose no jurisdictional error by the delegate.

Disposition

1. The applicant has not established the delegate made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 June 2017