Farhat v Minister for Immigration
[2017] FCCA 347
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARHAT v MINISTER FOR IMMIGRATION | [2017] FCCA 347 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application to Minister to waive Condition 8503 – consideration of “compelling circumstances” and “circumstances over which the person had no control” – refusal by Delegate of Minister – leave to re-open to prove instrument of delegation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41, 338, 496 Crown Lands Consolidation Act 1913 (NSW) |
| Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Craig v South Australia (1995) 184 CLR 163 Crown Lands Consolidation Act 1913 (NSW) Kaur v Minister for Immigration and Citizenship [2011] FCA 969 Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 Liu v Minister for Immigration and Border Protection [2015] FCA 1368 McDonnell v Darwin City Council (1997) 142 FLR 191 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 Smith v NSW Bar Association (1992) 176 CLR 256 |
| Applicant: | AHMAD FARHAT |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3435 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 April 2016 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr L Leerdam |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 18 December 2015 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3435 of 2015
| AHMAD FARHAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Israel aged 37 years, having been born on 15 March 1979.
By Application filed in this Court on 18 December 2015 he seeks by constitutional writs to quash and have redetermined the decision of a Delegate (Delegate) of the Respondent, the Minister for Immigration & Border Protection (Minister), dated 20 November 2015 refusing to waive Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations), to which his single entry TR 676 Tourist visa (Tourist visa) was subject under the Migration Act 1958 (Cth) (the Act).
Relevant Factual and Legal Background
The Applicant entered Australia on 23 April 2003 as the holder of the Tourist visa, which was valid for three months and was stamped as subject to Condition 8503 of Sch.8 to the Regulations (Condition 8503) which is generally known as a “No Further Stay” condition. Its effect is to preclude an applicant for a visa from applying for another visa allowing him to remain in Australia, except for a Protection visa: Kumar v Minister for Immigration and Border Protection [2016] FCA 1330 (Kumar) at [2] per Jagot J.
On 22 July 2003, one day prior to the expiry of his Tourist visa, the Applicant lodged a request for a Protection (Class XA) visa on religious grounds, which was refused by a Delegate of the Respondent on 1 August 2003.
On 15 August 2003 the Applicant lodged an application to the Migration Review Tribunal for review of the Delegate’s decision not to grant him a Protection visa. This application for review was unsuccessful.
On 5 April 2004 the Applicant then lodged a request for Ministerial intervention, but this was not considered and the Applicant’s Bridging visa Type E expired on 21 January 2005. He has since remained in Australia as an unlawful non-citizen.
By s.41(1) of the Act, the Regulations are authorised to provide that visas, or visas of a specified class, are subject to specified conditions.
By s.41(2)(a), such 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.
Subclause 676.613 of the Regulations authorised the Minister to impose, as he did, Condition 8503 on the Tourist visa.
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.
Applicant’s Request for Waiver of Condition 8503
On 16 November 2015 the Applicant lodged a request to waive compliance with Condition 8503 to which his Tourist visa was subject, in short on the basis that in April 2014 he had married an Australian citizen, namely Ms Nahida Salami, whom he had first met in 2004 after his arrival in Australia and with whom he started living from September 2005 and that she suffered from medical problems and he was her carer. He needed to have Condition 8503 waived because unless it was, he could not apply for a Partner visa as he wished.
Decision of Delegate
In his decision, the Delegate found that the Applicant’s circumstances as assessed for the purposes of reg.2.05(4) were not such that the Minister would waive Condition 8503 and the Delegate refused to waive it.
The Delegate found for the purposes of reg.2.05(4) that since the grant of the Tourist visa to the Applicant back in 2003, circumstances had developed which first were of a compassionate nature and second had resulted in a major change to the Applicant’s circumstances. Both those findings were obviously in the Applicant’s favour.
However, the Delegate found that any major change in the Applicant’s circumstances was neither compelling nor such as over which the Applicant had not had control. This led to the refusal by the Delegate to waive Condition 8503.
Consideration
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 at [4].
Further, there was no obligation on the Delegate to provide reasons for his 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 his refusal of a waiver of Condition 8503, he quite properly did so in a four-page letter to the Applicant dated 20 November 2015 (refusal letter).
Grounds of Application
The Applicant in his Amended Application filed in this Court on 9 March 2016 relies on three Grounds being:
1.The Delegate of the Minister’s decision is affected by jurisdictional error in that the Delegate did not ask himself the correct question because he did not consider whether the applicant’s wife’s depression was a compelling and compassionate circumstance within the meaning of the Migration Act.
2.The Respondent asked himself the wrong question by misconstruing the words “compelling and compassionate circumstances” in Regulation 2.05(4) of the Migration Regulations. The Delegate asked himself whether the applicant’s circumstances met the description of “compelling circumstances” as set out in the Department’s policy in substitution for the question posed by the Regulation, thereby restricting the plain meaning of “compelling”.
3.The Respondent failed to understand the compelling circumstances of my wife as outlined in doctor’s report.
Consideration
Ground 1
Of course, 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) 243 CLR 164 at 175 [27]. Jurisdictional error can also result from an administrative decision maker (like the Delegate) identifying a wrong issue or asking a wrong question: Craig v South Australia (1995) 184 CLR 163 at 179.
However, in my view the Delegate appropriately considered whether the depression of the Applicant’s wife was relevantly a compelling and compassionate circumstance. The Delegate in his refusal letter stated that he had carefully considered the information which had been provided by the Applicant to support his claims and listed the information as including, in particular, a Health Summary Sheet dated 7 November 2013 from Dr Jamal Rifi and a letter dated 22 May 2014 from Dr Ishrat Ali, which both referred to the depression suffered by the Applicant’s wife. The Delegate quoted passages from Dr Ali’s letter which referred to the Applicant’s wife suffering from a psychiatric condition and being in need of care and her recurrent depression, but further stated that he was not satisfied that this represented compelling circumstances.
In my opinion, Ground 1 in effect seeks impermissible merits review and is not made out.
Ground 2
Compassionate Circumstances
Insofar as this Ground refers to “compassionate circumstances”, the Delegate accepted that the Applicant’s claims were of a compassionate nature which had resulted in a major change to the Applicant’s circumstances for the purposes of reg.2.05(4) of the Regulations.
Circumstances Over Which No Control
The Delegate, having found compassionate circumstances resulting in a major change, then considered whether such circumstances had developed as a result of circumstances over which the Applicant had no control. The Delegate, in my view lawfully, concluded that they were not.
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. That was clearly not the case here. The Applicant had arrived in Australia in April 2003 on a 3-month visa subject to a “No Further Stay” condition but then had voluntarily decided to enter into a relationship of co-habitation with Ms Salami in September 2005 and had chosen to marry her in April 2014. Thus the Delegate was justified in finding, as he did:
However I find that your current circumstances were not outside of your control. I must take into account that you and Ms Salami made the mutual decision to pursue a relationship in the full knowledge that your migration status was not resolved. This is a situation that is not regarded as being beyond your control as this is an arrangement that you have entered into voluntarily.
Clearly, in this case it was within the control and volition of the Applicant whether he entered into and took upon himself the responsibilities and status occasioned by his relationship and subsequent marriage with Ms Salami.
Compelling Circumstances
Jurisdictional error could conceivably be shown 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”.
However, that is not the case here. The Delegate said about the meaning of the word “compelling”, and why he was not satisfied that the Applicant’s circumstances were compelling, as follows:
The term ‘compelling’ is not defined in the migration legislation. It is therefore given its ordinary meaning. ‘Compelling’ means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition. I have considered the reasons and information provided in your waiver request and I am not satisfied that they are sufficiently forceful to make a decision to waive your condition. I am not satisfied that your circumstances are substantially different to other families that are separated by their migration choices.
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 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 the Full Court of the Federal Court comprised of Tamberlin, Conti and Jacobson JJ at [21]-[24] had stated as follows:
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
Finally, in Liu v Minister for Immigration and Border Protection [2015] FCA 1368 Markovic J said in connection with the expression “compelling circumstances” at [39]:
The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria.
In my view, the Delegate did not ask himself any wrong question in connection with the meaning of “compelling” which could amount to jurisdictional error.
Departmental Policy
Finally, there was no reference in the Delegate’s statement of reasons to “the Department’s policy” and no evidence that the Delegate considered any policy at all in coming to his decision in relation to “compelling circumstances”.
Indeed the Delegate expressly stated that the word “compelling” was not defined in the migration legislation and it was therefore to be given its ordinary meaning.
Accordingly, in my view Ground 2 is misconceived and not made out.
Ground 3
This Ground is misconceived and must be rejected. The Delegate in his Decision expressly quoted a passage of the letter from Dr Ali with the following preface:
I acknowledge the evidence tendered in the form of a letter from Dr Ishrat Ali, consultant psychiatrist dated 22/05/2014…
Further, the Delegate expressly listed the Health Summary Sheet from Dr Jamal Rifi as one of a number of documents provided by the Applicant in support of his request for waiver of Condition 8503.
At the commencement of his statement of reasons, the Delegate stated:
After careful consideration of the relevant legislation and all the information and claims you have presented in your request…
There is thus no evidence that the Delegate failed to understand the medical circumstances of the Applicant’s wife. The Delegate accepted that she experienced feelings of anxiety and stress and that at times this impacted on her ability to maintain self-care, but he was not satisfied that her medical condition amounted to “compelling circumstances”.
There is nothing in Ground 3 which establishes jurisdictional error.
Authority of Delegate
I record that whilst I was preparing this judgment, I noticed that the author of the refusal letter, one Mr Darrin Robinson, was not described as a delegate of the Minister but rather as holding the position of “Manager Client Services Brisbane, Department of Immigration and Border Protection”. In the Respondent’s Written Submissions, Mr Robinson had been referred to as “a delegate of the respondent”. There was no instrument of delegation to Mr Robinson in evidence before the Court.
In these circumstances I considered it as appropriate, in fairness to the Applicant, to ensure that Mr Robinson did in fact have lawful authority on behalf of the Minister to make the decision to refuse the waiver of Condition 8503 comprised in the refusal letter.
In circumstances where there appeared to be no reason to think that Mr Robinson had not been validly delegated the Minister’s power of waiver under s.41(2A) of the Act, I had no real doubt of Mr Robinson’s delegation and was of the view that the presumption of regularity would apply, as described by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (NSW Aboriginal Land Council) at 164 as follows:
Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office.
(citations omitted.)
Nevertheless, I communicated my concerns to both the Applicant and the Respondent and a further short hearing took place on 2 March 2017. The Respondent sought leave to re-open to read and rely upon the affidavit of Mr Aaron Michael Day affirmed on 24 February 2017 which had the effect of proving, as I find, that Mr Robinson as at the date that he signed the refusal letter held a valid delegation from the Minister under s.496 of the Act to exercise the Minister’s power to waive Condition 8503 under s.41(2A). At the conclusion of the hearing on 2 March 2017 I indicated to the Parties that I would grant leave to the Respondent to re-open, read and rely upon the affidavit evidence of Mr Day and that I would give short reasons for granting that leave in my judgment.
My reasons for granting leave to re-open were as follows:-
a)There was no matter or circumstance raising a positive doubt of a valid delegation by the Minister to Mr Robinson and therefore the presumption of regularity prima facie applied;
b)The Applicant had never challenged the valid delegation of authority to Mr Robinson;
c)I myself had raised the issue of proof of delegation to ensure that it was put beyond any doubt: McDonnell v Darwin City Council (1997) 142 FLR 191 at 202;
d)The Respondent was not at fault in not previously tendering in evidence the instrument of delegation because such was not a live and identified issue and it is not otherwise usual in migration cases for formal proof of delegation by the Minister to an officer of the Department to be tendered in Court;
e)There was no apparent embarrassment or prejudice to the Applicant by allowing the Respondent to re-open and rely upon the affidavit of Mr Day: Smith v NSW Bar Association (1992) 176 CLR 256 at 267; and
f)The only evidence which the Respondent sought to tender is documentary and formal in nature. Tender of a documentary instrument of delegation was permitted on appeal by the Court of Appeal in NSW Aboriginal Land Council to establish what had not been affirmatively proved in the Court below, namely that a Minister of the Crown had delegated his authority to the Secretary of the Western Lands Commission to grant a permissive occupancy of land under the Crown Lands Consolidation Act 1913 (NSW).
Disposition
There is no self-evident error in the findings or reasoning of the Delegate. I am not persuaded that the Delegate failed to consider any of the matters and circumstances relied upon by the Applicant in support of his application for waiver.
Further, it is pertinent to remember that where, as here, the Delegate is not duty-bound to give reasons for his decision, an applicant for review of that decision “cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings”: M64/2015 at [36].
Jurisdictional error is not established and the Application is dismissed with costs to be determined.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 9 March 2017
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