Irshad v Minister for Immigration

[2015] FCCA 774

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRSHAD v MINISTER FOR IMMIGRATION [2015] FCCA 774

Catchwords:
MIGRATION – Compelling and compassionate grounds – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.476
Migration Regulations, reg.2.05

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: MUHAMMAD NADEEM IRSHAD

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 466 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms Hooper
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 466 of 2015

MUHAMMAD NADEEM IRSHAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s. 476 of the Migration Act 1958 in respect of a decision of the Respondent dated 3 February 2015. The First court date on the application provides:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

2. The application identifies the following grounds:

   1. The department misinterpreted and misunderstood the claim and the difference between the compassionate and compelling circumstances.

3. Having looked at the decision and the application, it is clear to the Court that it fails to disclose an arguable jurisdictional error.  The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding

4. The Court identified to the applicant that the application failed to identify a relevant arguable error and the applicant indicated it is not safe for him to return.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001),  I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28.

5. The decision identifies:

   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 under regulation 2.05(4) 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.

   …

   Specifically, it was not accepted that since you were granted the visa that was subject to the 8503 condition that circumstances have developed over which you had no control and resulted in a major change to your circumstances and are both compelling and compassionate.

   …

   Regulation 2.05(4) requires that since the grant of your visa, compelling and compassionate circumstances have developed over which you had no control that resulted in a major change to your circumstances.

   I acknowledge that your claims are of a compassionate nature as you wish to remain with your wife in Australia. I also acknowledge that entering into a de-facto relationship or marriage, including cohabiting, could constitute a major change to your circumstances. However, under current waiver policy, marriage to (or commencing a de-facto partner relationship with) an Australian citizen or resident would not, normally constitute a situation that would be regarded as being beyond your control. The decision for you to enter into this relationship and then subsequently marry was made by you and Ms Haider voluntarily and therefore was within your control.

   …

   The decision for you to work in Australia without a valid visa that have you permission to work was a personal choice and decision made by you voluntarily in full knowledge of your current immigration status. The subsequent fall you suffered was a direct result of the decision you made to work, therefore the events that led to your accident are considered to have been within your control. If you had not made the decision to work, you would not have incurred the accident that hospitalised you.

   …In your case, you will be able to travel once your injuries have healed. Therefore, on the medical evidence that you have tendered I do not accept that you will remain unfit to travel back to Pakistan indefinitely and are compelled to remain in Australia.

   … However the letter written by Roylena Bari does not state that Ms Haider is incapacitated to the degree that she is not able to take care of herself. In fact in her own statement, Ms Haider indicated that she was invited to live with her brother for support while you were in hospital. Therefore, I am satisfied that your wife has both psychological and family support to cope with her stress.

   I acknowledge your statements made regarding your concerns about returning back to Pakistan are compassionate in nature. Policy indicates that the criteria in Re.2.05(4) will be satisfied in circumstances where the decision maker can be satisfied that the applicant lives in an area that has been directly affected. Merely coming from an affected country is not, in itself, sufficient for this concession to apply. Departmental records indicate that you arrived in Australia on 02/11/2005 and have not returned back to your home in Pakistan. You have not indicated whether this home was owned by you or whether you had rented the accommodation. Ten years have passed since you last lived in this accommodation and you provide no evidence that proves this property is still vacant and awaiting your return or whether others have settled into the property. Further, you provide no evidence that indicates you are not able to return back to Pakistan and find alternative accommodation with remaining family members. Therefore, I do not accept that you are not able to return back to Pakistan.

6. There is no error of the kind identified in the application.  It is clear that the Tribunal sought to apply the criteria correctly under reg.2.05(4) in considering whether there were compelling and compassionate circumstances that have developed over which the applicant had no control. 

7. The findings made by the Tribunal were clearly open and the findings cannot be said to lack an evident and intelligible justification.  I am satisfied that there is no substance in the ground advanced.  I am clearly satisfied that the proceedings have no reasonable prospect for success and the proceedings are summarily dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 April 2015