He v Minister for Immigration
[2020] FCCA 986
•29 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HE v MINISTER FOR IMMIGRATION | [2020] FCCA 986 |
| Catchwords: MIGRATION – Delegate of Minister for Immigration and Border Protection – TU580 student guardian visa subject to condition 8534 – no further stay condition – application to waive the no further stay condition – delegate satisfied that there were compassionate circumstances – delegate not satisfied that there were compelling circumstances – whether the delegate considered the circumstances as a whole. |
| Legislation: Migration Act 1958, s.41(2A) Migration Regulations 1994, r.2.05(4) |
| Cases cited: MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50 Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, (2016) 344 ALR 1; [2016] FCAFC 177 Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 Yaacoub vMinister for Immigration and Border Protection [2018] FCAFC 39 |
| Applicant: | XIZHU HE |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File number: | MLG 980 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 November and 6 December 2019 |
| Date of last submission: | 6 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 29 April 2020 |
REPRESENTATION
| Counsel for the applicant: | Andrew Yuile |
| Solicitors for the applicant: | Belleli King & Associates |
| Counsel for the respondent: | Natalie Campbell |
| Solicitors for the respondent: | DLA Piper Australia |
ORDERS
The application filed on 15 May 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 980 of 2017
| XIZHU HE |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection. In that decision, the delegate refused to grant the applicant a waiver of a condition of her last held visa which prohibited her from lodging a partner visa application onshore. The relevant condition was condition 8534, which is also known as the no further stay condition. It was common ground that this court is able to review the delegate’s decision in the circumstances of this case.
Background
The applicant summarised the background to this matter in her submissions filed on 18 October 2019 as follows:
3.Ms He arrived in Australia on 1 November 2007 and began a de facto relationship with her partner very shortly thereafter, on 30 November 2007.[1] The couple have been together ever since,[2] now some 12 years, as de facto partners.
[1] Court Book (CB) 42.
[2] See the letter form the agent in support of the waiver, at CB 4.
4.Ms He’s partner, Mr Holder, operated a business consisting of a small farm producing Asian vegetables. The evidence to the delegate was that Ms He had helped with running the farm, by providing assistance to Mr Holder. The evidence described her supporting role as being “instrumental in saving and developing the business”.[3]
[3] CB 6.
5.Mr Holder began suffering from back pain at least as far back as 2015, and CT scans revealed a degenerative condition in the lumbar spine. In 2016, the diagnosis included a prolapsed disc. Evidence from his neurosurgeon, Associate Professor Danks, recorded lower back pain which came on when walking on hard surfaces and that bending for significant periods or lifting with a bent posture resulted in several days of pain. Bad pain included radiating pain to the right thigh. A/Prof Danks described Mr Holder as doing reasonably well, despite these findings, and as able to walk around his farm, managing to some degree where precautions were taken. However, A/Prof Danks also indicated a need for great caution to avoid to avoid progression or substantial surgery.[4]
[4] CB 30.
6.The evidence of the agent to the delegate, on behalf of Ms He, was that Mr Holder’s condition was “increasingly impacting on his life”, restricting the work he could do on the farm and reducing his general mobility. In those circumstances, the support and assistance of Ms He was said to have avoided the potential loss of the farm.[5]
[5] CB 6.
7.Ms He wishes to apply for a Subclass 820 (Partner) Visa to live permanently in Australia with Mr Holder, reflecting their long-standing and committed relationship. However, she is subject to visa condition 8534, which would prevent her from lodging the Partner Visa while remaining in Australia.
8.Ms He sought to avoid having to leave Australia and Mr Holder to apply for her visa, thus leaving Mr Holder essentially on his own and unable to continue to sustain the business given his back condition described above.
9.Section 41(2A) of the Migration Act 1958 (Cth) allows for the Minister to prescribe circumstances in which conditions to which particular visas are subject may be waived. Relevantly, reg 2.05(4) provides that:
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 …
10.In reliance on this regulation, Ms He filed a “No Further Stay waiver request” on 20 March 2017.[6] This would have enabled her to apply for the partner visa while remaining in Australia. The application was supported by the evidence from the agent already referred to, with supporting medical material.
11.On 18 April 2017, a delegate of the respondent refused to grant the waiver. The delegate found that the criterion in reg 2.05(a)(i) was satisfied, at least insofar as the application related to Mr Holder’s medical issues. No express finding was made in respect of reg 2.05(4)(a)(ii). The applicant submits that such a finding was subsumed in the acceptance of circumstances beyond Ms He’s control.
12.However, the delegate was not satisfied that the circumstances described in the evidence amounted to “compelling and compassionate circumstances”. Merits review of that decision is not available, so judicial review was sought in this Court on 12 May 2017.
[6] CB 2 and following.
In addition, it was common ground that the applicant came to Australia on a TU580 student guardian visa on 1 November 2007. The student guardian visa was subject to the no further stay condition. The applicant’s student guardian visa expired on 31 January 2008.
Thereafter, the applicant remained in Australia without a visa. She applied for the waiver of the no further stay condition on 3 April 2017: CB1.
The applicant is now 50 years old. Mr Holder will be 63 years old in May 2020.
Mr Holder has never paid the applicant for her work on his vegetable farm in Narre Warren North. That was explained in the applicant’s agent’s undated submission in support of the waiver, in the second paragraph of point 7, where the agent said (CB6):
The review applicant helps with running the farm but as providing assistance to her partner and not as a paid employee.
Associate Professor Andrew Danks’ letter
The applicant relied particularly on a letter dated 8 September 2016 from Associate Professor Andrew Danks. An illegible copy of that letter is at CB30. A legible copy is contained in exhibit 1. The letter says:
Thank you for your kind referral on this pleasant 59 year old chap who has lumbar spinal pain. He manages a farm, growing vegetables for restaurants and drives a truck delivering the vegetables. He has found that he is troubled by right sided low back pain, felt mainly over the 5 joint region. The pain comes on when walking on hard surfaces. The symptoms settle with sitting down. He is better when he wears cushioned shoes. He can walk around on the farm all day. When seated, he has to be careful of the quality of the seating. He had to buy very good quality seats for his truck, which solved pain in that posture. He is able to work and move pretty well. If he bends over for a significant period such as weeding, or if he lifts from a bent posture, he pays for it for three days or so. Fortunately the symptoms are generally okay at night.
When the pain is bad, it radiates to the right thigh. He denies numbness, tingling or weakness in the lower limbs. He does have some problems with his knee joints but these seem to be local. He also has some shoulder pain and other arthritic issues. His general health is stable, although he is on treatment for NIDDM and hypertension.
On examination Anthony is a healthy looking chap, who exhibits a normal sitting and standing posture and a reasonable range of low back movement, without overt symptoms. On the couch, he has a completely normal lower limb neurological exam, with intact reflexes, tone, power and sensation. There is no evidence of positive femoral stretch test or positive straight leg raising test.
He attends with a CT scan which is appropriately reported. There is indeed some wear and tear change in the spine, particularly at the L4/L5 level, where there is a grade 1 spondylolisthesis of degenerative type. There is indeed a foraminal disc prolapse on the right side, which could be irritating the L4 nerve root. The spinal canal is somewhat narrowed, but not alarmingly so.
At this stage Anthony seems to be doing reasonably well, despite the CT findings. There are no features of a well-defined L4 radiculopathy, although pain radiation into the right thigh might be an old form thereof. He seems to have learned how to look after his back. I have told him that he needs to be very careful with his spine in the short, medium and longer term, to avoid progression and need for substantial surgery. At this stage, conservative management is appropriate. I have advised him to buy a copy of Robin McKenzie’s book ‘Treat your own back’ and to attend James McGregor who is an experienced therapist trained in these techniques. I leave the timing of any further review open in this office.
The delegate’s reasons
In summary, the delegate was satisfied that, since the applicant’s student guardian visa was granted, circumstances had developed over which the applicant had no control, being Mr Holder’s medical issues. In addition, the delegate accepted that those circumstances were compassionate. However, the delegate did not accept that those circumstances were compelling.
The delegate relevantly said at CB66-67 that:
The client had no control over these circumstances
I have considered that the client and her partner made the mutual decision to pursue a relationship and enter into a de-facto living arrangement. This is a circumstance that is not beyond the client’s control as this is an arrangement that he has entered into voluntarily. Therefore, the circumstances regarding the marriage are within the client’s control and do not meet the requirement set out in Regulation 2.05(4).
I also do not find that the client’s decision to assist her partner in running his vegetable farm represents circumstances outside of the client’s control.
I do however accept that the client has no control over her partner’s medical issues.
The circumstances must be compelling and compassionate
I acknowledge that the circumstances are compassionate; however I do not find them to be compelling.
The term ‘compelling’ is not defined in the migration legislation. It must be 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.
The client’s migration agent states that the client’s partner, Mr Holder has a serious and degenerative back complaint that will ultimately need surgical intervention and there is a possibility he will be confined to a wheel chair. I acknowledge the letter from Dr Maia Hou dated 14 November 2016 which outlines Mr Holder’s medical conditions and current medication which include a degenerative spine. I have also considered the doctor’s letter dated 8 September 2016 from A/Prof Andrew Danks that states that Mr Holder presented with lumbar spinal pain. The letter goes on to state that the client drives a delivery truck delivering vegetables, can walk around his farm all day and is able to work and move pretty well. Whilst acknowledging that Mr Holder has some degeneration in is spine, the doctor’s advice to Mr Holden provided in this letter is to be careful with his spine, recommends he buys a book “treat your own spine” and to attend the experienced therapist James McGregor. Based on the information provided I do not find the client’s partner’s medical condition represents circumstances sufficiently forceful to waive the condition.
The client’s migration agent states that Mr Holder has no family members and if the client departs Australia he will be left alone without support and he cannot go with his partner to China because he cannot speak Chinese and would struggle to receive the appropriate medical care. I accept that their temporary separation as a couple may be challenging, however this does not constitute compelling circumstances.
The migration agent also states that without the clients support, Mr Holder would probably have lost his farm and the living it provides. He goes on to state that if the waive is refused a visa it is “Likely the business would experience a downturn, perhaps a fatal downturn”. While I accept that the client has been involved in Mr Holder’s business, I do not find the migration agent’s speculation about future consequences that may not occur sufficiently forceful to waive the condition.
…
In considering the client’s circumstances as a whole I do not find them sufficiently forceful to waive the condition, therefore I do not find the circumstances compelling. (emphasis added)
In considering all the information the client has provided to support the request to waive condition 8534, I have assessed these claims against the criteria in Regulation 2.05(4). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations. (emphasis added)
Ground of review
There is only one ground of review in the application filed on 15 May 2017. It is:
The delegate of the Respondent failed to take into account relevant considerations in determining the applicant’s application for a condition waiver such that the delegate of the Respondent failed to consider the applicant’s circumstances as a whole.
Particulars
(a)At page 1 of the decision record, the delegate stated that the reasons for her decision were provided below.
(b)At page 4 of the decision record, the delegate stated that she had considered the applicant’s circumstances as a whole.
(c)At page 3 of the decision record, the delegate accepted that the applicant’s partner had medical issues but did not accept that they represented circumstances sufficiently forceful to waive the condition.
(d)There was evidence before the delegate, at page 3 in the attachment to Form 1477 No Further Stay waiver request, that the applicant’s skills and knowledge had been instrumental in the development of the farm business.
(e)There was also evidence, on the same page, that the applicant helped with the running of the farm by providing assistance to her partner but not as a paid employee and that it was in this capacity, as an unpaid assistant, that the applicant had been instrumental in developing and saving the business.
(f)At page 4 of the decision record, the delegate accepted that the client has been involved in the farm business but did not accept that speculation about future consequences, namely that the business might experience a downturn should the waiver be refused, was sufficiently forceful to waive the condition.
(g)In so doing, the delegate failed to consider the present circumstances, namely that the client was instrumental in developing the business and that she did so in an unpaid capacity.
(h)The delegate then failed to consider whether in circumstances where the client was instrumental to the business and worked in an unpaid capacity, and where her partner had particular medical conditions, whether those circumstances as a whole were compelling and sufficiently forceful to waive the condition.
To provide a context for the consideration of the delegate’s reasons for decision, the Minister noted that the delegate was not obliged, in the circumstances of this case, to give reasons at all. In support of that proposition, the Minister relied on Yaacoub vMinister for Immigration and Border Protection [2018] FCAFC 39, where the Full Court of the Federal Court said at [34] that:
In approaching the review of the delegate’s reasons, however, it is important to appreciate that he had no statutory duty to explain why he exercised his power in the way he did. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185-186 [25] French CJ, Bell, Keane and Gordon JJ 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) 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) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (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]. (emphasis added)
However, in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, (2016) 344 ALR 1; [2016] FCAFC 177 the Full Court of the Federal Court said that:
[71]The Minister contended that, where there was, as here, no obligation on the Minister to provide reasons, the Minister’s failure to refer to the legal consequences of the cancellation decision in his reasons did not support an inference that the Minister did not consider them. The Minister noted that s 501G, which is the statutory source of the obligation to provide reasons in relation to most s 501 decisions, does not apply to decisions under s 501(3). With respect to a decision under s 501(3), therefore, the Minister submitted that he is obliged only to provide notice of the decision and “particulars of relevant information” under s 501C(3)(a)(ii). ... Referring to Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206; [2015] HCA 50 at [25] (Plaintiff M64/2015), the Minister contended that, in the absence of a duty to give reasons, the Court could not draw any inference of error from what was not said by the Minister.
[72]The fact that a statement of reasons for a decision is provided voluntarily, rather than pursuant to an obligation, cannot prevent a Court drawing inferences about what the Minister considered material to his decision and what he did not consider at all: Assistant Treasurer and Minister for Competition and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323; 259 ALR 203; [2009] FCAFC 105 at [51]. The nature of the statement of reasons may, of course, affect the confidence with which an inference can be drawn. In the present case, however, the Minister has provided a document to the affected visa holder that the Minister described as a “statement of reasons for cancellation of visa under s 501(3)(b) of the Migration Act”. Reference to the contents of the document confirms the accuracy of this description. The document gave a fulsome and apparently exhaustive account of the matters that the Minister considered relevant to his cancellation decision. Whether or not the statement of reasons was given voluntarily does not prevent the Court from inferring in Mr Taulahi’s case that the Minister did not advert to the proper operation of s 501C. Plaintiff M64/2015 at [25] does not assist the Minister’s case at this point, because the document at issue in that case did not purport to be a statement of reasons that exhaustively explained the decision that had been made.
The present case is similar to Taulahi, in that, in the present case, the delegate provided a statement of reasons headed Decision Record, and appears to have exhaustively set out her reasons for decision.
The parties agreed that the delegate in the present case was required to follow a three-stage process, which was described by Kenny J in Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 as follows:
20By virtue of the written request that was made on the applicant’s behalf on 15 January 2002 and reg 2.05(4)(a), the delegate was required to decide whether compelling and compassionate circumstances had developed since 28 December 2001 (when the applicant’s visa was granted) resulting in a major change in the applicant’s circumstances over which he had no control. ...
…
25… 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.
The three steps are:
a)whether compelling and compassionate circumstances have arisen since the visa was granted;
b)whether the compelling and compassionate circumstances were beyond the visa holder’s control; and
c)whether the compelling and compassionate circumstances resulted in a major change to the visa-holder’s circumstances.
The parties agreed that the delegate in the present case did not consider the third step, being whether the compelling and compassionate circumstances over which the applicant had no control resulted in a major change in her circumstances. The parties agreed that the delegate presumably did not consider that step because it did not arise, as the delegate was not satisfied that there were compelling circumstances.
In Yaacoub at [35], the Full Court of the Federal Court also noted that, in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50 at 185-186, the High Court discussed the meaning of the word compelling in relation to a different part of the Migration Regulations 1994. The Full Court of the Federal Court said that, in Plaintiff M64/2015:
Their Honours decided the meaning of the word “compelling”, in its context in cl 202.222(2) of Sch 2 of the Migration Regulations, which required the Minister to be “… satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa” (emphasis added) (see 258 CLR at 180 [13]). They said (at 187- 188 [31]) that the state of mind of the decision-maker under that clause:
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. (emphasis added) (citations omitted)
It is well established that decision makers in matters such as this must consider the evidence cumulatively. For example, in MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095, Weinberg J said that:
63I acknowledge that the Tribunal’s reasons for decision are thorough and appear to be comprehensive. Indeed, they run to some fifty-seven pages of closely typed text. However, I am not satisfied that the Tribunal understood that its task in this case went beyond simply setting out in detail every complaint that the husband put forward, and then adjudicating upon each complaint individually.
…
72It is true that at one point, towards the very end of its reasons for decision, the Tribunal stated:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the [husband] is a person to whom Australia has protection obligations …” (emphasis added)
73The difficulty is that this statement appears after the Tribunal has already considered each claim in isolation, and separately held that there was no evidence to suggest that anti-Semitism had anything to do with what had occurred. In a sense, therefore, it is literally true that the Tribunal had considered the evidence “as a whole”. However, that is not the sense in which the Tribunal was obliged to perform its task. It had to consider whether, on the facts as found, the various events described, taken together, were in any way the product of anti-Semitism.
74There is nothing in either the structure or content of the Tribunal’s reasons to suggest that it in fact approached the matter in this way. Rather, the Tribunal appears to have dealt with the husband’s complaints in a somewhat piecemeal fashion. It simply set out each complaint and then declined to draw the inference that the event had been occasioned by anti-Semitism immediately thereafter. Of course, if one views a series of events in isolation, there is less likelihood that one will attribute to them a common cause.
The delegate said that she had considered the applicant’s circumstances as a whole: para 3 on page 4 of the reasons for decision: CB67. However, the applicant argued the delegate’s assertion in that regard was formulaic, unsupported by specific reasons, and should not be accepted.
More particularly, the applicant said in paragraph 14 of her written submissions to this court filed on 18 October 2019 that her argument was that:
The short point is that the delegate, although considering the individual aspects of the claims made by Ms He in support of the waiver, did not consider the cumulative effect of those claims. This was critical to a proper appreciation of the case being put on her behalf. The argument for the applicant ran as follows:
a.Ms He had been with her partner for a long time, and had been supporting him in his business during that time. Her influence in that regard had been an important part of its success.
b.More recently, and from at least 2016, Mr Holder had struggled with lower back pain, ultimately diagnosed as caused by the degenerative back condition.
c.This placed severe restrictions on Mr Holder’s ability to conduct the business.
d.It was only with the increased support of Ms He in Australia that the business could remain viable and that Mr Holder could cope with his decreasing mobility and increasing pain. Ms He performed a critical caring role as well as being an important support to the business. Without Ms He in Australia, it was likely that the business would have to fold.
The Minister argued in his written submissions filed on 1 November 2019 at paragraph 13 that, given the findings made by the delegate, the only matter that the delegate was required to consider cumulatively was Mr Holder’s medical issues, which the delegate did. The applicant did not dispute that the delegate considered Mr Holder’s medical issues cumulatively.
The delegate had to consider the matters over which the applicant had no control, and decide whether they were compelling and compassionate. The delegate decided that the applicant did have control over:
a)her entering into a relationship with Mr Holder; and
b)her helping him with his vegetable farm.
The applicant accepted those findings: Tr. p.6, ll.31-33.
The only relevant matter that the delegate expressly considered that the applicant had no control over was Mr Holder’s medical condition. However, the applicant argued that Mr Holder’s medical condition could not be considered in isolation, because it had a flow on effect in relation to the business of the vegetable farm.
The delegate obviously considered that Mr Holder’s medical condition was not as debilitating as the applicant implied. The delegate noted that Associate Professor Danks’ report was to the effect that:
Mr Holder presented with lumbar spinal pain. The letter goes on to state that the client drives a delivery truck delivering vegetables, can walk around his farm all day and is able to work and move pretty well. Whilst acknowledging that Mr Holder has some degeneration in is spine, the doctor’s advice to Mr Holder provided in this letter is to be careful with his spine, recommends he buys a book “treat your own spine” and to attend the experienced therapist James McGregor.
That is, the delegate was not persuaded that Mr Holder’s back was as bad as the applicant’s migration agent suggested, and, by implication, Mr Holder’s back problems would not prevent him from running his farm himself. More particularly, the delegate considered that the agent’s suggestion that, without the applicant, Mr Holder’s business might experience a possibly fatal downturn to be speculative.
The delegate’s formal reason, in accordance with the wording of the regulation, was that the possible downturn in Mr Holder’s business was not sufficiently compelling to waive the condition. However, read fairly and as a whole, the delegate’s reasons for decision can be understood as meaning that the delegate considered that the prospects of a significant downturn in Mr Holder’s business were basically negligible. Therefore, there was no need for the agent’s speculation about a downturn in Mr Holder’s business to be taken into account.
Further, at the point in time when the delegate made her decision, there had been no effects on Mr Holder’s business. The possible future effects on his business were not circumstances that have developed within the meaning of reg.2.05(4)(a) of the Migration Regulations 1994. That regulation concerns circumstances that have already occurred, not circumstances that might possibly occur in the future. Consequently, the delegate did not need to take into account the possible future downturn in Mr Holder’s business.
It follows that, by considering Mr Holder’s medical issues as a whole, the delegate did all that was required of her. The ground of review is not made out.
Mr Holder’s failure to pay the applicant
It is very concerning that the applicant has been working on Mr Holder’s farm for 12 years without any pay at all. That may be a breach of the Fair Work Act 2009, and the applicable award. My understanding is that even family members who work on family farms have to be paid, unless they are co-owners. There was no suggestion that the applicant is a co-owner of Mr Holder’s farm. As Mr Holder has not paid the applicant for 12 years, it is conceivable that Mr Holder owes the applicant hundreds of thousands of dollars in unpaid wages and superannuation.
Apart from the possible breach of employment laws, Mr Holder’s failure to pay the applicant for her work on his farm could be indicative of him exerting financial control over her. Financial control falls within the definition of family violence.
While it is possible that Mr Holder and the applicant have a loving, mutually supportive and mutually respectful relationship, it is also possible that Mr Holder has grotesquely exploited the applicant for many years in a variety of ways.
I was inclined to refer this matter to the Fair Work Ombudsman for investigation. However, on reflection, and in view of the fact that the applicant is represented by a lawyer in this proceeding, it seems preferable to leave it to the applicant to raise the matter with the Fair Work Ombudsman if she wishes.
I note that Mr Holder has made the applicant the sole beneficiary of his will, and, if the applicant predeceases Mr Holder, he has made the applicant’s two sons his beneficiaries. That gives some comfort that the relationship between Mr Holder and the applicant is fair. However, as we know, wills can be readily changed, and people sometimes hold out the prospect of an eventual inheritance to control family members in the years before the will comes into effect.
The issue of Mr Holder not paying the applicant for her labour is, of course, completely irrelevant to the question of whether the delegate considered the required matters as a whole and cumulatively. I have had no regard to Mr Holder’s failure to pay the applicant in determining that question.
Conclusion
As the applicant’s ground of review has not been made out, the application will be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 29 April 2020
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