El Okde v Minister for Home Affairs
[2019] FCCA 203
•4 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL OKDE v MINISTER FOR HOME AFFAIRS | [2019] FCCA 203 |
| 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 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 – jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth), reg.2.05 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 553 |
| Applicant: | KHALED EL OKDE |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1804 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 7 November 2018, 12 November 2018, 29 January 2019 |
| Date of Last Submission: | 14 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Ms Sophie Given (HWL Ebsworth Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1804 of 2017
| KHALED EL OKDE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By application, filed on 9 June 2017, the applicant seeks judicial review of a decision by a delegate of the Minister for Home Affairs (“the Delegate”) dated 6 June 2017, refusing the waiver of the No Further Stay condition 8503 (“Condition 8503”) which attached to the applicant's visa.
Condition 8503 is set out in s.41(2)(a) of the Migration Act 1958 (Cth) as follows:
“Conditions on visas
…
(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…”
The relevant regulations and the decision of the Delegate are accurately summarised in the respondent’s written submissions as follows:
“Relevant factual background
2. The applicant, a male citizen of Lebanon, arrived in Australia on 26 June 2012 as the holder of a UL676 Sponsored Family Visitor visa (CB 15). The applicant subsequently lodged a Protection visa application which was refused by the then Refugee Review Tribunal (Tribunal) (CB 15). The applicant applied for judicial review of the Tribunal's decision by this honourable Court, however his application was out of time and he was not granted an extension of time (CB 9). The applicant then applied for Ministerial Intervention, however the Minister decided not to intervene (CB 15).
3. On 30 May 2017, the applicant (by his migration agent) emailed the Department requesting a waiver of no further stay condition 8503 (CB 1). The email attached the following documents:
a) Passport of the applicant (CB 2 to 3);
b) Form 956 Advice by a migration agent/exempt person of providing immigration assistance (CB 4 to 6);
c) A marriage certificate relating to the applicant and his spouse (CB 7 to 8);
d) Sealed Orders of Judge Street dismissing an extension of time application dated 16 May 2017 (CB 9);
e) Letter from the Department notifying the applicant of the grant of a Bridging E (subclass 50) visa (CB 10); and
f) Form 1447 No further stay waiver request (CB 11 to 12).
4. Relevantly, regulation 2.05(4) and 2.05(4AA) of the Migration Regulations 1994 (Cth) (Regulations) provided:
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.
(4AA) For subsection 41(2A) of the Act, a further circumstance in which the Minister may waive condition 8503 in relation to a visa is that the holder of the visa has a genuine intention to apply for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
5. The applicant requested a waiver of condition 8503 on the basis that he was a highly skilled mechanic specialising in prestige cars, his services were required by an Australian business, and he was married to and had a long term relationship with an Australian citizen (CB 12).
6. The applicant stated that he had no control over those circumstances because the Australian business wished to sponsor him because of his long term experience, and he was "not told to appear before Judge Street on 16 May 2017" and his application was dismissed in his absence (CB 12).
7. The applicant said that his circumstances were compassionate and compelling because he was married on 15 September 2014 "as a result of [his] fear of harm in Lebanon which was accepted by the Tribunal", and his Australian wife would be harmed if she accompanied him to Lebanon (CB 12).
Delegate's decision
8. On 6 June 2017, the delegate refused to waive condition 8503 (CB 21 to 24).
9. The delegate acknowledged the applicant's relationship and marriage, as evidenced by the marriage certificate, however considered that the decision to enter into the relationship and marry were circumstances within the applicant's control (CB 22). The delegate considered that although the applicant had certain skills as a mechanic, it was within his control to accept employment in Australia, understanding that he was the holder of a visa that allowed him temporary status and did not permit him to work (CB 22). The delegate was ultimately not satisfied that the applicant's circumstances were circumstances over which the applicant had no control, and therefore did not satisfy regulation 2.05(4) the Regulations (CB 23).
10. The delegate acknowledged that the circumstances regarding the applicant's marriage and his concerns regarding his wife's safety in Lebanon were compassionate, however did not accept those circumstances as being compelling (CB 23).
11. The delegate also considered the applicant's statement that the 'Tribunal' had accepted his fears of harm in Lebanon and that for this reason the applicant believed that his wife would also be harmed if she accompanied him to Lebanon to lodge an application (CB 23). The delegate considered that while the Tribunal accepted the applicant's fears, it did not accept that he would actually be harmed if he returned to Lebanon, and on this basis his [extension of time] application was refused (CB 23).
12. Based on the information provided in the applicant's request, the delegate was not satisfied that the applicant or his wife would be harmed if they returned to Lebanon, or that there was any reason that the applicant's wife would need to enter Lebanon in order for the applicant to lodge a Partner visa application (CB 23). After considering all of the information provided in the applicant's request against the criteria in regulation 2.05(4) (i.e. that compelling and compassionate circumstances over which the person had no control existed) the delegate was ultimately not satisfied that the applicant's combined circumstances were sufficiently forceful to waive the no further stay condition, and condition 8503 was not waived under section 41(2A) of the Migration Act 1958 (Cth) (Act) (CB 23).”
The applicant was unrepresented before the Court, although had the assistance of an Arabic interpreter.
The applicant confirmed that he attended a directions hearing before a registrar of this Court on 3 July 2017 at which time he was given leave to file an amended application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.
At that directions hearing, the matter was set down for hearing before me on 7 November 2018 at 10:15am. On that occasion, the applicant had the assistance of an interpreter. Very early in the hearing it became apparent that the interpretation was not of a sufficient standard to ensure that justice could be done between the parties. Both the Court and the solicitor for the respondent were of that view. The matter was stood down and an interpreter was obtained by telephone from Melbourne. That interpreter was equally unsatisfactory. Accordingly, the matter was stood over for final hearing on 12 November 2018.
At the hearing on 12 November 2018, the applicant confirmed that he had not filed any document either in accordance with the directions made by the Court on 3 July 2017 or otherwise.
The applicant confirmed that he relied on the grounds contained in his initiating application, filed on 9 June 2017, as follows:
“1. The Department misunderstood the changes of circumstances which are compelling and there is an Australian business which needs my skills as an experienced mechanic specialised in prestige cars and the Department ignored the important issue of my future contribution to the Australian industry.
2. The Department failed to consider my long term marriage with my Australian wife and the risk to apply offshore.”
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 said that there was a company owner who wished to employ the applicant as a mechanic and that the Delegate had not taken the applicant’s circumstances into consideration, in particular, his experience as a mechanic and the need in Australia for his experience.
I took the applicant through the relevant regulations and through the Delegate’s decision record in detail in order to assist the applicant to understand why it was that the Delegate had made the decision that it had.
A submission provided to the Delegate in relation to the applicant’s request for a waiver of Condition 8503 and dated 1 June 2017 noted that the applicant had requested a waiver of the Condition 8503 because he is a highly-skilled mechanic and that a car company would like to sponsor him. Further, he is married and is fearful of his wife travelling to Lebanon with him to lodge a partner visa application.
This submission to the Delegate noted that the applicant entered Australia on 26 June 2012 as the holder of a sponsored family visitor visa for two months to stay with his aunt. Subsequently, the applicant lodged a protection visa application on the basis of his political opinion. However, that application was refused. Following judicial review of a decision by the Administrative Appeals Tribunal affirming the decision under review, the applicant sought Ministerial intervention, which was also refused. The Delegate noted that the applicant has been managed on a bridging visa E since that time.
The Delegate then identified the correct regulations in considering whether Condition 8503 should be waived. In considering the applicant’s marriage, which the Delegate accepted, the Delegate found that the decision to enter into a relationship and marry were circumstances that were within the applicant’s control. In relation to the applicant’s claim to be a skilled mechanic, the Delegate found that it was also within the applicant’s control to accept employment in Australia.
As stated above, there was no evidence before the Delegate of any employment by the applicant as a skilled mechanic or as a mechanic. The Delegate noted that the applicant was the holder of a visa that allowed him temporary status and did not permit him to work. As stated above, there was no application made by any person to sponsor him in Australia as a mechanic. Indeed, in his Condition 8503 waiver request the subclass that the applicant intended to apply for was identified by him as a Partner Visa.
The Delegate then considered whether there were circumstances that were compelling and compassionate that had developed since the applicant’s visa grant over which the applicant had no control and that had resulted in major changes to his circumstances. To that end, the Delegate referred to the applicant’s protection visa application which was ultimately refused. The Delegate found that the applicant’s protection visa application was refused on the basis that although he may have the fears he claimed, the Administrative Appeals Tribunal in refusing his protection visa application had not accepted that the applicant would actually be harmed if he returned to Lebanon.
Based on the information provided by the applicant in support of his request to waive Condition 8503, the Delegate was not satisfied that the applicant or his wife would be harmed if they returned to Lebanon. Moreover, the Delegate noted that there was no reason why the applicant’s wife, who is an Australian citizen, needed to enter Lebanon for him to lodge a Partner Visa application.
The Delegate considered what was meant by the term “compelling” and ultimately found the applicant’s combined circumstances not to be sufficiently compelling to waive Condition 8503.
Having stated that it was his intention to apply for a Partner Visa, reg.2.05(4AA) of the Migration Regulations 1994 (Cth) (“the Regulations”) had no application and neither did reg.2.05(4A) of the Regulations. Those regulations refer to visas for which the applicant had not applied and there was no evidence before the Delegate that he intended to do so.
In the circumstances, the Delegate’s decision discloses that the Delegate understood the claims being made by the applicant and had regard to those claims in considering whether the applicant met the criteria for a waiver of Condition 8503.
The applicant does not show that any relevant material or claims were ignored simply by pointing out that they were not mentioned by the Delegate. The Delegate was not obliged to give comprehensive reasons for his decision. As stated above, the applicant did not provide any material to the Delegate.
It is well-established that the Delegate’s reasons are not to be scrutinised upon in overzealous judicial review by seeking to discern whether some inadequacy can be gleaned from the way in which the reasons are expressed per Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The principles are well set out in plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25], that passage being cited in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 being Besanko, Gleeson and Burley JJ at [32]:
“32. As the FCCA judge noted, the delegate was not required to give reasons for his decision: Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [8]. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25] the plurality said:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282]. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision [Migration Act 1958 (Cth), s 66(2)(c), (3).], and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate [Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 605-606, [31]-[33], [66]-[73]]. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power” [Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351-352, [82]-[84]]; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272].”
In the circumstances, the applicant’s complaint to this Court that his circumstances were not considered cannot be made out in light of the Delegate's reasons.
Whilst not a complaint raised by the applicant, I also have regard to and accept in full the legal proposition expressed by the solicitor for the respondent in paragraph 20 of her written submissions, as follows:
“20. It is well established that a decision-maker is not obliged to investigate or conduct an inquiry to discover whether a visa applicant's case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). In order to determine whether a decision-maker was obliged to (and did in fact) consider a particular matter, it is relevant to consider how that matter arose or was expressed by the person affected by the decision: Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24 at [35] to [36]; Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114].”
As stated above, and, in the absence of any evidence from the applicant beyond that to which I have referred that he genuinely intended to apply for one of the visas listed in reg.2.05(4AA) of the Regulations, the Delegate was not required, nor obliged, to consider whether the applicant’s claims in relation to reg.2.05(4) of the Regulations should also be considered in relation to reg.2.05(4AA) of the Regulations. Nevertheless, that sub-regulation was set out by the Delegate and the Delegate made a specific finding, as stated above, that those circumstances were not met.
The Delegate's findings were open to it on the evidence and material before it and for the reasons it gave. Those reasons were based on probative findings that were both logical and reasonable 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). The Delegate applied the relevant law to the findings that it had made and, in the circumstances, its conclusions were open to it.
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 is a replication of a recommendation provided to the Delegate, a copy of which was contained in the Court Book, marked Exhibit 1R. The matter was stood over for further directions before me on 29 January 2019 to give the parties an opportunity to consider the issue.
The respondent’s solicitor, Ms Given, filed submissions on the issue on 14 January 2019, although no order was made for submissions. At the directions hearing on 29 January 2019, the respondent was given leave to rely on those submissions and both parties confirmed that they had no further submissions to make.
In particular, I accept the following submission:
“The delegate was considering the application for waiver and, in the course of doing so, adopting the reasons that formed part of the recommendation. The delegate was not applying “template reasons” or copying extracts from other decisions in similar cases; nor was the delegate copying material about a particular individual and applying in a different case. The delegate was making a deliberate decision to adopt reasons, a somewhat different use of prior material with no ready application to cases under the rubric of either copying or using standard reasons” (cf: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90) (emphasis added)
The “recommendation” was in a document titled “Submission to Delegate Request for Waiver 8503” (“the Recommendation”). The Recommendation contained the following headings: Details of the Applicant; a Summary of Request; the Legislative Criteria to be Satisfied; an Assessment of the Circumstances of the Applicant against reg.2.05(4) 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’m not satisfied that Mr El Okde’s circumstances are of the kind set out in sub-regulation 2.05(4) of the Regulations”
The Recommendation is dated 5 June 2017. The Delegate’s decision record is dated 6 June 2017. The Delegate’s decision record contained the following headings: The Client’s Claims, Information and Evidence Considered; Reasons; and, Decision.
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 the submission of the solicitor for the respondent that this Court should apply the observations of Beazley J, although obiter dicta.
I further accept the respondent’s submission 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.
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 (see Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 553 per Nicholson J).
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 32. The Delegate’s decision record contained headings different to those contained in the Recommendation and was made the following day.
Moreover, the Delegate had the relevant material as well as the Recommendation for consideration in the making of the Delegate’s decision. The Delegate had clearly expressed his agreement with the Recommendation as cited in paragraph 32 above.
In the circumstances, I accept that no inference arises that the Delegate failed to discharge the statutory duty solely because he replicated the content of the Recommendation. Upon receiving the Recommendation, the Delegate was not required to reassess or decide afresh the waiver issue. Rather, as submitted by the respondent, the statutory task was to exercise the discretion in s.41(2A) of the Act.
Accordingly, the Delegate’s decision is not affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 4 February 2019
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