Emeish v Minister for Immigration
[2005] FMCA 1308
•19 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EMEISH v MINISTER FOR IMMIGRATION | [2005] FMCA 1308 |
| MIGRATION – Visa – Visitor Visa – Condition 8503 – ‘No further stay’ condition – where applicant overstayed visa – claim that the birth of the applicant’s child was a circumstance over which he had no control. |
| Migration Act 1958 (Cth), ss.41(1), 474 |
| Minister for Immigration & Multicultural Affairs Bhardwaj [2002] HCA 11 Minister for Immigration & Multicultural Affairs v Yusuf; Re Minister for Immigration [2001] HCA 30 Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360 (2001) 109 FCR 169 Ozberg v Minister for Immigration & Multicultural & Indigenous Affairs [1999] 79 FCR 249 Samad v District Court of New South Wales [2002] HCA 24 Servos v Repatriation Commission (1995) 56 FCR 377 Terera v Minister for Immigration & Multicultural Affairs [2003] FCA 335 Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 Qing v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 519 |
| Applicant: | FIRAS ISSA MOUSA EMEISH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1100 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 August 2005 |
| Date of Last Submission: | 19 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Saba El Hanania Hopper & Co |
| Solicitors for the Respondent: | Mr Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1100 of 2005
| FIRAS ISSA MOUSA EMEISH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of a delegate of the respondent Minister not to grant a waiver of condition 8503 in respect of the applicant’s visa.
The applicant obtained a visitor’s visa on 5 December 2001. There was a condition imposed on his visa, being condition 8503, so as to provide that he was to be granted no further visa other than bridging visa or a protection visa. It is a “no further stay” condition.
The circumstances are that the applicant arrived in Australia on 22 May 2002 on a visitor visa from his native Jordan. His visa was due to expire on 22 August 2002. What happened was that the applicant formed a relationship with a lady and that is seen by both parties as a permanent relationship. And as a result of the relationship a child called Samantha was born on 26 July 2004.
Although the applicant’s visa expired on 22 August 2002 the applicant did not leave Australia because by that time he had formed the relationship and, in fact, he overstayed his visa. As can be seen, he had overstayed his visa for nearly two years at the time that the child was born on 26 July 2004. As a result he has spent some time in immigration detention in Villawood although he has since been released.
The applicant, through his solicitors, submitted a request for a waiver of the “no further stay” condition on his visa; condition 8503. In that application he said that there were circumstances which would justify the Minister granting such a waiver. They, in fact, related to the forming of the new relationship and the birth of the child and the consequent hardship to the parties if the applicant were required to leave Australia.
Sub-s 41(1) of the Migration Act says that the migration regulations may provide that visas are subject to specified conditions. Sub-s.2 sets out the sorts of conditions that may be imposed. Sub-s.2A says:
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 sub-s 3.
The regulations made for the purpose of sub-s.41(2)A in the Migration Act are contained in reg 2.05(4) which says that:
For sub-s 41(2A) of the Act the circumstances in which the Minister may waive a condition of a kind prescribed 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 of the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c)If the person asked the Minister to waive the condition, the request is in writing.
Clearly (b) does not apply as this is the first time the applicant has sought a waiver of that condition. (c) applies in that the request was made in writing through his then solicitors. Paragraph (a) is the paragraph that contains the necessary conditions that relate to such an application.
At page 21 through to 24 of the Court Book there appears a recommendation to the delegate relating to whether or not the 8503 condition should be waived. At page 22 under the heading “assessment against legislation” the officer sets out some six paragraphs (a) through to (f) setting out what is said to be the relevant considerations.
(a) points out that this is the first waiver request from this applicant.
(b) Did the circumstances stated in the written request for waiver occur since the visa was granted?
Answer: Yes. According to the applicant’s request, his de facto relationship commenced in 2002. The applicant’s child was born on 26 July 2004.
(c) Did the circumstances result in a major change to the client’s circumstances?
Answer: Yes. I am satisfied that Mr Emeish has experienced a major change in circumstance. The applicant has formed a de facto relationship with an Australian citizen which has resulted in the birth of a child on 26 July 2004. In my view, this constitutes a major change to its circumstance.
(d) Were the circumstances outside the visa-holder’s control?
No. I am not satisfied that the core reason for this request is outside the control of the visa-holder. The applicant ought to have been aware of the fact that he arrived in Australia on a visitor visa with a “no further stay” condition. It is my view that the applicant’s decision to form a de facto relationship with an Australian citizen resulting in the birth of a child is a circumstance that is within his control.
(e) Are the circumstances compelling?
Answer: No. I do not consider Mr Emeish’s circumstances to be compelling. It is my view that the applicant’s de facto relationship and the recent birth of his child does not constitute compelling circumstances. There would not seem to be any reason why the applicant should not depart Australia and apply for a spouse visa offshore if so desired.
(f) Are these circumstances compassionate?
Answer: Yes. I do consider Mr Emeish’s circumstances to be compassionate in nature. In my view, the applicant’s desire to remain in Australia to support his de facto partner and child constitutes compassionate circumstances.
The recommendation was, and it appears on page 24 of the Court Book that the 8503 condition on the applicant’s visa should not be waived. The delegate accepted that recommendation and on 26 April sent a letter to the applicant, care of his then solicitors, saying that the delegate had determined that he failed to satisfy legislative criteria for the 8503 condition to be waived. Consequently his request had been denied and the condition remains in effect.
In the statement of reasons given the delegate said:
Your request was assessed against the requirements of migration regulation 2.05(4). This regulation prescribes the criteria that must be met before the 8503 visa condition can be waived. Under this regulation visa holders must demonstrate that compelling and compassionate circumstances have arisen since their visa was granted and represents a major change to their circumstances and this change was beyond their control. I do not consider the issues you have stated in your request regarding your de fact relationship and the resulting birth of your child to constitute compelling and compassionate circumstances.
Based on the information presented I have determined that you failed to satisfy reg 2.05(4).
This is not a decision that is reviewable by the Migration Review Tribunal. The applicant has filed today an amended application seeking the following orders and declarations:
·A declaration that the respondent’s decision was not a privative clause decision within the meaning of s. 474 of the Migration Act.
·A declaration that the decision was a jurisdictional error as the applicant meets the criteria set out in the relevant Migration Regulations.
·That the delegate caused a jurisdictional error by not adjudicating the respondent’s policy of compelling and compassionate circumstances.
·A writ of prohibition preventing the respondent from giving effect to that decision.
·An order for costs.
·An order quashing the decision of 26 April.
·An order that the application for review should be remitted to the respondent to be dealt with according to law.
·That the respondent should permit the applicant to file a spouse application sub-class 8.20 spouse temporary visa within the Migration Regulations accordingly.
·An order of certiorari quashing the decision of the respondent.
I would comment in passing that orders (6) and (9) that are sought would seem to be covering the same subject matter. The grounds given are:
·That the decision involved a jurisdictional error and;
·That the decision of the delegate amounted to an error of law by stating that the birth of a child does not constitute compelling and compassionate circumstances;
·By stating that the birth of a child does not constitute compelling and compassionate circumstances;
·That the decision amounted to a jurisdictional error by not following the notions of the respondent’s policy;
·That the applicant was denied procedural fairness by not being permitted to submitted an application for a sub-class 8.20 visa which resulted in jurisdictional error; and
·That the failure of the delegate to exercise jurisdiction constituted a denial of procedural fairness.
The grounds appear to overlap. The particulars of ground (1) set out the fact that the applicant is the father of the child, Samantha; that he continues in the de facto relationship and, specifically, that the applicant had no control of the child being born. It further submits that the applicant’s circumstances have changed significantly and that there are compassionate circumstances. The particulars of the second ground are somewhat similar except to point out that there is no legal definition of “compelling reasons”, nevertheless the departmental policy says that the following circumstances would normally be considered compelling reasons:
Where the couple are in a longstanding spouse or interdependent relationship taken to be for at least two years and/or where there is an Australian citizen child in the relationship.
There is also the claim that if the applicant had to leave Australia, his de facto spouse’s health would suffer and there would be a financial burden imposed on her and on the child. There is also the claim that an officer of the respondent agreed that the circumstances were compassionate.
The third particular that the delegate’s decision amounted to jurisdictional error by not following the notions of policy to my mind seems to be covered by the particulars of ground (2). The claims of the denial of procedural fairness in ground (4) and in ground (5) to my mind just cannot be sustained on their face. There is no denial of procedural fairness that I can see.
The applicant submitted an application through his solicitors and there is evidence that that application was considered in that the material that the applicant wanted the delegate to consider was, in fact, put to the delegate. In my view there is no need to discuss the issue of procedural fairness any further in that there is no evidence of it.
At the commencement of the hearing the applicant sought to rely on two affidavits which had been filed the day before. One was from the applicant himself and the other was from the applicant’s de facto spouse. For the respondent, Mr Markus objected to those affidavits on the basis of relevance and on the basis of the fact that they were affidavits that contained material that had not been before the delegate at the time of the review.
He referred the Court to the decision of Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590. This is a decision at first instance of O’Loughlin J in the Federal Court. It is a matter that is a decision which is, whilst not necessarily binding on this Court as it is a first instance decision, it is a decision that I would normally regard as being persuasive. His Honour in that case considered whether or not it was appropriate to admit new evidence and, in fact, referred to a decision of Ozberg v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 79 FCR 2.49 where Marshall J refused to receive two affidavits into evidence. His Honour followed the decision of Spender J in Servos v Repatriation Commission (1995) 59 FCR 377 where Spender J had held that the Court had no jurisdiction to admit fresh evidence. In this case, his Honour relied on those two decisions and took the view that it was inappropriate to admit fresh evidence and in the long run took the view that they should not be admitted.
In my view it is a situation where fresh evidence is not appropriate to be admitted because of the very nature of judicial review. It is not a merits review and if the Court considers material that was not open to the delegate then this material cannot assist the Court in deciding whether the delegate committed a jurisdictional error. The Court is not hearing fresh evidence and the question of a review on the merits is solely a decision for the decision maker.
What I did allow was parts of the affidavits which related to material that was already before the delegate, for what that was worth.
I rejected certain parts of the affidavits as they did not relate to material that had been before the delegate and I rejected other parts of the affidavits as being either irrelevant or not being statements of fact but being more in the nature of submissions. It is not appropriate for a submission to be contained in an affidavit which is meant to be a recital of facts.
In the course of the proceedings, Mr Saba El Hanania presented the Court with a written submission and then addressed the Court in support of that submission. Mr Markus, for the respondent Minister, also presented a written submission and addressed the Court in support of that submission.
Mr Saba El Hanania referred the Court to a number of authorities, in particular Samad v The District Court of New South Wales [2002] HCA 24. That is a decision of the High Court of Australia which turned on the meaning of the word “may” in s 9 of the Interpretation Act 1987 NSW and was used in the context of that particular case. He submitted that that was persuasive in respect of the use of “may” in sub-reg 2.054 of the Migration Regulations which provided that the Minister may dispense with conditions under s. 41 in certain circumstances.
Whilst their Honours took the view in Samad (supra) that the word “may” had a strong directive power, I note that at paragraph 28 of the decision their Honours referred to the decision of the Beazley HJ in the Court of Appeal proceedings in Samad (supra) noting that Stein and Heydon JJ had agreed that clause 149 of the document in Samad (supra) conferred on the Director General a power which must be exercised if one or more of the matters in the clause was established. And her Honour went on to say:
The word “may” is directed not to a discretionary exercise of the power as such, but to its manner of exercise. It empowers the Director General to engage one of two alternative sanctions: suspension or cancellation.
Whilst I do with respect agree with the decision of Beazley HJ as to the meaning of the word “may” in that context, in my view the decision goes to the New South Wales Court of Appeal and to the High Court of Australia relates specifically to the legislation being considered in that case and not as a general proposition. In any event I agree with her Honour’s decision relating to the word “may” being directed not to a discretionary exercise of the power but to the manner of exercise of the power. As such I am not satisfied that the decision in Samad (supra) imposes a mandatory requirement on the Minister for waiving a condition. The regulation gives the Minister the power to waive that condition if certain criteria are met and those criteria are set out in reg 2.04. I would comment that it is only if those criteria and all of them are met that the Minister may waive that condition.
I was referred to the decision of Minister for Immigration and Multicultural AffairsvYusuf; Re Minister for Immigration [2001] HCA 30 where it was held that failure to refer to or make findings in respect of a relevant matter may be a matter of jurisdictional error.
With respect I agree but I am not satisfied that that is a correct description of the process of reasoning employed by the delegate in that case.
I was also referred to two decisions of the Migration Review Tribunal, both of which illustrate examples of compelling circumstances.
In my view, not only is it trite law that decisions of the Migration Review Tribunal are not binding upon the Federal Magistrates Court, that the considerations that an administrative decision maker takes into account, not necessarily the same as those taken into account by a Court exercising the power of judicial review.
Further, I was referred to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 where it was held that failure to exercise jurisdiction and not merely jurisdictional error, it said constituted by a denial of procedural fairness could be said to be a serious jurisdictional error. Again, I agree, but there has to be shown to be a denial of procedural fairness before there can be a failure to exercise jurisdiction. And before there can be a jurisdictional error arising from that denial, in my view no denial of procedural fairness has been shown.
Similarly I was referred to Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519 which held that procedural fairness ought to be exercised with a fair consideration in deciding and affecting the right of the person to remain in Australia. And this was also governed by the Common Rules of Natural Justice. Again, with the very greatest of respect, I agree with this proposition but as I have indicated earlier I am not satisfied on the evidence that a denial of natural justice has been shown. If there is a jurisdictional error, it is not one of either procedural fairness or of natural justice. It would be whether or not there was a straight out error of law.
As well as the decision in Thongpraphai (supra), Mr Markus, for the respondent Minister, referred me to the decision of Terera v Minister for Immigration and Multicultural Affairs [2003] 135 FCA 335 and Nguyen v the Minister for Immigration and Multicultural Affairs [2001] 109 FCA 169. In each of these decisions, both of which I note are also first instance decisions, the Court cited the decision of O’Loughlin J in Thongpraphai (supra) even though Kiefel J gave a decision, perhaps only lukewarm approval, by saying at paragraph 25 that:
O’Loughlin J held that the words “compelling” and “compassionate” in reg 2.05(4)A call for the occurrence of an event or events that are far-reaching and most heavily persuasive. In a general sense, this is probably correct although for my part I prefer not to put any gloss by way of explanation on the plain words of reg 2.05(4)A. When a visa-holder requests the Minister or ministerial delegate to waive a no further stay condition imposed on his or her visa then the question for the decision maker will be whether in the particular case compelling and compassionate circumstances have developed since the visa was granted over which the visa-holder has no control and resulting in a major change to his or her circumstances.
Whether the decision maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa holder.
In my view, with respect, paragraph 25 of Terera v the Minister (supra) sets out an accurate and concise summary of the requirements for the Minister or the delegate of the Minister in applying reg 2.05(4)A. It should be remembered that it is the regulation that governs whether or not the Minister may waive a particular condition. I have had received into evidence as exhibit 1 a document, being part of a document from the Procedures Advice Manual 3 headed “8503 information and waiver request forms”. That, of course, sets out certain advice to ministerial delegates as to what matters should be taken into account. It is not, however, a document that is binding on the Minister, nor does it supersede the requirements of the regulation.
It is the regulation that must be followed and the regulation makes it quite clear that the Minister must be satisfied as to those requirements in order that the Minister may waive a condition.
I look again at the process of reasoning employed by the Minister’s delegate as set out in pages 21 to 24 of the Court Book. I note that the delegated adopted the recommendation of the particular officer.
The delegate was satisfied that this was the first waiver request from the applicant and that the circumstances had occurred since the visa was granted. Both the commencement of the de facto relationship and the birth of the child. The delegate was satisfied that the circumstances did result in a major change to the client’s circumstances. Forming a de facto relationship with an Australian citizen which has resulted in the birth of a child was seen to be a major change in circumstances. And in my view it was open to the delegate to form that view on the basis of that evidence.
The reasoning also, as I said, pointed out that the circumstances were compassionate in nature. The applicant’s desire to remain in Australia to support his de facto partner and child was held to constitute compassionate circumstances. I am satisfied that evidence is quite capable of allowing that conclusion to be drawn.
It is the question of whether the circumstances were outside the control of the visa-holder and were compelling that the delegate was not satisfied about. It is a prerequisite in paragraph (a) of the sub-reg that:
Since the person is granted the visa that the subject of the condition compelling and compassionate circumstances have developed.
The delegate did not consider the circumstances to be compelling saying:
It is my view that the applicant’s de facto relationship and the recent birth of his child do not constitute compelling circumstances. There would not seem to be any reason why the applicant should not depart Australia and apply for a spouse visa offshore if so desired.
This is important, to my view, because whilst departing from Australia and applying for a spouse visa offshore will clearly result in some delay, it is not an absolute bar to obtaining a visa. In his written submissions, Mr Markus pointed out that it was not established that the applicant could not reasonably be expected to depart Australia and apply for a spouse visa offshore. This finding was clearly open the delegate on the material before it. In my view, there is no evidence to show that the applicant could not leave Australia and either return to his native country or to another country from where he would obtain a visitor’s visa and then make an application for a spouse visa.
The only restriction on applying for this visa is that it cannot be applied for onshore. But it can be applied offshore and that is still an option open to the applicant. Finally, the delegate was not satisfied that the circumstances were outside the control of the visa-holder.
For the applicant, Mr Saba El Hanania agreed that entering into a marriage or a de facto relationship was not of itself a situation outside the control of the applicant but that the birth of the child was.
His submission was that whilst it was certainly within the control of a man to have intercourse with a woman so that she conceived a child, once the child had been conceived and the question of whether that pregnancy went to full term or not, was outside the applicant’s control. True it is that it would be open to the woman to have a surgical procedure to terminate the pregnancy. True it is that some unfortunate medical situation could occur where the woman were to lose the child or where there was a stillbirth. These distressing circumstances happen to a number of women in Australia on any given day and whilst distressing are often beyond the control of any party to avoid.
But in my view, with respect, it cannot be said that a man has no control over the birth of a child once the woman conceives. If a person enters into a sexual relationship which is not a sexual relationship where the appropriate precautions are taken, and even they are never 100 per cent effective, then it must be within the contemplation of the parties that a child may be the result. And here is a man and a woman who have entered into a permanent relationship and the woman is some years older than the man, and it could well be said that the biological clock was ticking, and as a result of this sexual relationship a child was born.
Whilst I was invited by Mr Saba El Hanania to conduct further research on the point, which of itself is a very entertaining proposition, I am of the view that those circumstances constitute evidence upon which a delegate of the Minister could be satisfied that the birth of the child, after the applicant had entered into that relationship, was a circumstance that was not beyond the control of the applicant. It may well be that a Court would form a different view based on that evidence but that is not the point. The Court is not primary decision maker. The Court does not make a decision on the facts. What the Court must do and exercise in judicial review is to decide whether on the evidence that was before the delegate it was open to the delegate to form that decision. In my view, it was so open.
Accordingly, there is no jurisdictional error. The decision is a privative clause pursuant to s.474 of the Migration Act.
There is an application for costs and the amount of $3,200.00 is sought. The applicant has been unsuccessful and this jurisdiction costs normally follow the event. I accept the fact that these proceedings have been burdensome upon the applicant and it may well be that the applicant believes that he has a good case and he may well wish to argue it on appeal. There are many matters heard on appeal in this jurisdiction and it is purely a matter for the applicant.
I am not satisfied that that is the reason not to make a costs order.
A successful party would normally expect to be the recipient of a costs order in their favour. The matter involved some argument. Counsel was not briefed. The Court Book was relatively small and it was a relatively simple issue which has taken a fairly long half-day. In my view it is a matter for costs. In my view a lump sum of $3,000.00 on a party and party basis would be appropriate.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.K. Polley
Date: 1 September 2005
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