Hamoud v Minister for Immigration

[2015] FCCA 1087

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMOUD v MINISTER FOR IMMIGRATION [2015] FCCA 1087

Catchwords:
MIGRATION – Interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), s.41
Migration Regulations 1994 (Cth)

Terera v Minister for Immigration [2003] FCA 1570; 135 FCR 335

Thongpraphai v Minister for Immigration [2000] FCA 1590

Applicant: OMRAN HAMOUD

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2161 of 2014

Judgment of: Judge Driver

Hearing date: 28 April 2015

Delivered at: Sydney

Delivered on: 28 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S Speirs of Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2161 of 2014

OMRAN HAMOUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 1 August 2014 seeking review of a decision of a delegate of the Minister refusing to waive condition 8503 on a visa held by the applicant, Mr Hamoud.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 21 April 2015. 

2. Mr Hamoud, a citizen of Lebanon, arrived in Australia on 27 June 2012 on his visitor visa.  His visitor visa was due to expire on 27 July 2012.

3. On 25 July 2012, Mr Hamoud applied for a protection visa, which was refused[1].  Mr Hamoud subsequently lodged an application for review with the Refugee Review Tribunal and an application for Ministerial Intervention - both of which were unsuccessful[2].

   [1] Court Book (CB), 16

   [2] CB, 16

4. On 20 June 2014, Mr Hamoud lodged a request to the Minister’s Department to waive condition 8503 imposed on his visitor visa[3].  That request was refused on 30 June 2014.  Subsequently, on 1 August 2014, Mr Hamoud lodged this application seeking judicial review of the delegate's decision.

   [3] CB, 14

Relevant legislation

1. The Minister's power to impose and/or waive conditions relevant to the grant of a visa is set out in ss.41(2) and 41(2A) of the Migration Act 1958 (Cth) (Migration Act). Those sections relevantly provide:

   (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

   ...

   (2A) 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).

2. For the purpose of waiving a visa condition under s.41(2A) of the Migration Act, regulation 2.05(4) provides that:

   For subsection 41(2A) of the Act, the circumstances in which the Department 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 Department has previously refused to waive the condition, the Department is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

   (c)   if the person asks the Department to waive the condition, the request is in writing.

Delegate's decision

1. Mr Hamoud had not previously applied for a 8503 waiver. Consequently, the Minister was only required to consider Mr Hamoud's request for a waiver pursuant to the requirements specified by regulations 2.05(4)(a)(i) and (ii), namely, whether  “compelling and compassionate circumstances had developed” over which Mr Hamoud had “no control” and “resulted in a major change to the [applicant's] circumstances”.

2. Mr Hamoud sought to satisfy the requirements of regulations. 2.05(4)(a)(i) and (ii) on the basis that:

   a)he is required to stay in Australia because his wife is pregnant  and is dependent on him for “moral and emotional and physical support in her everyday life”; and

   b)he holds concerns for his safety if he is forced to return to Lebanon because the threat is “now even greater than before especially with no president elected to run the country in Lebanon and the whole region is on the brink of sectarian and civil war”.

3. The Minister's delegate held that both of the above matters did not satisfy the requirements for a 8503 waiver. Specifically, the delegate rejected Mr Hamoud’s claim that condition 8503 should be waived because of: 

   a)his wife's pregnancy and emotional and physical dependence on him - the delegate held that although it would be stressful for his wife if he was forced to leave, she could "cope without [his] assistance" and that, "… … pregnancy is a naturally occurring event in an ongoing relationship and in itself does not constitute compelling circumstances"; and,

   b)his fear of returning to Lebanon – Mr Hamoud had previously lodged an application for a protection visa on 25 July 2012 which  was refused.  Additionally, the delegate did not accept Mr Hamoud’s claims that the political developments in Lebanon changed his circumstances or that they constituted “compelling and compassionate circumstances”.

4. Mr Hamoud continues to rely on the ground in his show cause application.  That is reproduced at [11] of the Minister’s submissions:

   Failure by the Delegate to consider and evaluate for itself material relied upon by applicant to waive condition 8503 Migration Act 1958 (Cth), s41 and 46 Migration Regulations 1994 (Cth), Schedule 2 and 8"

5. I have before me as evidence a short affidavit filed by Mr Hamoud with his application. 

6. I also have before me the court book filed on 16 September 2014. 

7. I received from Mr Hamoud as an exhibit[4] a medical report on his wife dated 7 April 2015.

   [4] exhibit A1

8. Mr Hamoud is concerned that the delegate did not take a compassionate view of his circumstances.  That, however, is not sufficient to raise an arguable case of legal error.  The Regulations required Mr Hamoud to demonstrate circumstances that were not only compassionate but also compelling.  The delegate was not so satisfied.  In my opinion, nothing was overlooked and the conclusions reached by the delegate were open to him on the material before him. 

9. I otherwise agree with the Minister’s submissions concerning the ground of review. 

10. One possible way that the ground may be construed, is that the delegate committed an error by failing to expressly state his conclusions by reference to an evaluation of Mr Hamoud’s evidence.  If that is what Mr Hamoud meant, the ground is misconceived. This is because a review of the delegate's decision reveals that the delegate expressly referred to the evidence relied on by Mr Hamoud in support of his waiver request[5]. Additionally, the delegate accepted Mr Hamoud's evidence and the contentions he made in support of his waiver request.  In this way, what Mr Hamoud has seemingly failed to recognise is that his claim for a waiver was rejected, not because the delegate disbelieved his evidence or failed to properly "evaluate" or "consider" it, but because his evidence failed to satisfy the statutory requirements of regulation 2.05(4)(a).  That is, the circumstances proffered by Mr Hamoud through his evidence did not constitute “compelling and compassionate circumstances”.

    [5] see CB, 15

11. The phrase “compelling and compassionate” received some attention in Thongpraphai v Minister for Immigration[6] where O’Loughlin J said at [21]:

    The circumstances that must fit the description of “compelling and compassionate” must have developed since the grant of the visa … There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.

    [6] [2000] FCA 1590

12. In Terera v Minister for Immigration[7], Kenny J referred to these observations of O’Loughlin J and remarked at [35] that:

    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.

    [7] [2003] FCA 1570; 135 FCR 335

13. Read together, Thongparaphai and Terera make clear that "circumstances" that fit the description "compelling and compassionate" must not be a mere "incidental matter" but must be "far-reaching and most heavily persuasive" so that they result in a "major change" to the applicant's situation.  When considered in light of the high threshold required to establish "compassionate and compelling circumstances" there is no question that the delegate took account of the reasons proffered, had regard to the policy and made a determination entirely dependent on the facts under consideration, as per the dictum of O'Loughlin J.  

14. It is apparent that Mr Hamoud’s circumstances have changed since the delegate’s decision.   His child, a daughter, has been born.  Exhibit A1 is a psychological report concerning his wife.  In that report, Dr Mahmoud Abu-Arab provides a diagnosis of a major depressive illness.

15. The circumstances might justify orders being made under the Family Law Act 1975 (Cth) for the care of the child. That is a matter for Mr Hamoud to consider. His current application, however, cannot succeed.

16. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs.  Mr Hamoud did not wish to be heard on costs.  I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  1 May 2015