Jajieh v Minister for Immigration

[2020] FCCA 690

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAJIEH v MINISTER FOR IMMIGRATION [2020] FCCA 690

Catchwords:
MIGRATION – Application to waive condition 8503 of Schedule 8 of the Migration Regulations 1994 (Cth) – whether the delegate erred by not finding that the applicant’s circumstances had changed – whether the delegate’s conclusion was unreasonable, illogical or irrational – whether the delegate made a jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), r.2.05(4), condition 8503 of Schedule 8

Applicant: JAMAL EL JAJIEH

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 3573 of 2017

Judgment of: Judge Humphreys

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Parramatta

Delivered on: 5 March 2020

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: Mr Lonsdale

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,751.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3573 of 2017

JAMAL EL JAJIEH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of Lebanon. The applicant arrived in Australia on 29 June 2017 as the holder of a Visitor (class FA) (subclass 600) visa, which allowed him to stay in Australia for 45 days. On 18 October 2017, the applicant was granted a further visa which expired on 22 November 2017. This subsequent visa, was subject to condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”)  that:

   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.

2. On 1 November 2017, the applicant lodged a request to waive condition 8503. On 6 November 2017, that request was refused by a delegate of the Minister for Immigration and Border Protection (“the delegate”).

3. It is to be noted there was no right of appeal to the Administrative Review Tribunal, in relation to this particular decision by the delegate.

4. The applicant now seeks judicial review of the delegate’s decision.

The Delegate’s Decision

1. In the decision record, the delegate of the Minister notes that the request for a waiver was because the applicant would like to remain in Australia, to provide care and support to his sister, who he claimed had major depression, family issues and a recent miscarriage.

2. The delegate noted that condition 8503 of Schedule 8 of the Regulations cannot be waived unless relevant criterion of the Migration Act 1958 (Cth) (“the Act”) and Regulations are satisfied.

3. Relevantly, r.2.05(4) of the Regulations states as follows:

   For subsection 41(2A) of the Act, the circumstances in which a 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 has 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

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

4. The delegate noted that the letter from the sister’s general practitioner, Dr Ahmed Ali, dated 27 October 2017, which confirms the applicant’s claims in relation to his sister. The delegate acknowledged that the applicant, his sister and his wife, have all agreed their preference, is for the applicant to remain in Australia to provide care and support to the sister. However, the delegate considered the applicant’s sister has family in Australia and, as an Australian citizen, she has access to professional care for her depression, other medical conditions and family issues with the assistance of her general practitioner

5. The delegate was not satisfied that the applicant’s circumstances were sufficiently forceful to waive the no further stay condition.

Grounds of Appeal

1. Three grounds of appeal are set out in the application to the Court. They are as follows, verbatim:

   (1) The Delegate Keith contradicted himself and made an error by saying that “While I accept the client’s sister’s miscarriage, depression and family issues are major changes to her circumstances, I do not consider they present a major change to the client’s circumstances.”

   (2) My sister’s medical condition is relevant to me to request a further extension of time until she improves. The Delegate failed to distinguish that my circumstances changed because of my sister’s changes of circumstances which occurred after my arrival to Australia and that she needs my emotional and physical support and failed to consider my personal support which is important in addition to any other professional support.

   (3) The Delegate failed to give sufficient weight to the circumstances which are sufficiently forceful to waive the no further stay condition and enable me to remain extra three months with my sister due to her changes of circumstances after my arrival to Australia.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. The applicant confirmed to the Court that he had received a copy of the Court book, a copy of the respondent’s submissions and the submissions had been interpreted to him. Notwithstanding Court orders, no written submissions were filed in support of the application.

2. The applicant today told the Court that his objective was to help his sister. The applicant’s aim was to support her morally as he was her brother and that he is very close to her.

3. The applicant suggested that the delegate had not considered the moral and spiritual support that no one else can p to her. Whilst the applicant noted that she had outside medical support, he suggested there was a particular bond between himself and his older sister and that he had been prevented from leaving at an earlier date, bearing in mind the original application was in 2017, because she continued to cling to him and seek his support.

The First Respondent’s Submissions

1. After setting out the background, the respondent submitted that there was no contradiction in ground 1. To waive the visa, the delegate had to be satisfied that there were compelling and compassionate circumstances, which had developed in relation to the applicant’s personal circumstances.

2. The delegate was not satisfied that the sister’s miscarriage, depression or family issues had resulted in a major change to the applicant’s circumstances. The delegate was required to distinguish between the sister’s issues and the applicant’s. Neither the applicant’s waiver request nor the letter from Dr Ahmed Ali, necessarily suggested that the applicant is the only person who can provide the required support to his sister.

3. It was submitted that ground 1 has no substance and does not disclose jurisdictional error.

4. Ground 2 asserts that the delegate erred by not finding that the applicant’s circumstances had changed, because of his sister’s circumstances had changed, or for failing to consider the applicant’s sister “emotional and physical support”. It was submitted that this assertion merely reiterates ground 1 and cannot be sustained and the second assertion is without substance.

5. The delegate did consider the claims and accepted that there were compassionate circumstances but, ultimately, did not find them to be sufficiently compelling as to waive condition 8503 of Schedule 8 of the Regulations. This finding was open to the delegate and no jurisdictional error is made out.

6. Ground 3 asserts that the delegate failed to give sufficient weight to the circumstances, which are sufficiently forceful to waive the no further stay condition. It was submitted that this ground merely invites impermissible merits review of the delegate’s decision by the Court. But whether circumstances are sufficiently compelling, involves a level of judgment that is entrusted to the Minister or their delegates pursuant to the Act. The respondent submits that ground 3 does not establish jurisdictional error.

7. This matter involves consideration as to whether or not there were sufficiently compelling circumstances for the delegate to waive the requirement that there be no further stay on the applicant’s visa, following his initial visitor’s visa being extended. This consideration involved whether or not there were compelling circumstances that related to the applicant, such that the criterion in r.205(4) of the Regulations as set out above, were met. This necessarily involved an evaluative exercise of the material put forward on behalf of the applicant, which was that his sister required him to stay in Australia to provide her with assistance in relation to her medical, mental and family situations.

Consideration

1. In relation to ground 1, the Court is not satisfied that any jurisdictional error is made out. The delegate was clearly referring to whether or not there were compelling circumstances as they relate to the applicant, not to his sister, noting the construction of the requirements in r.2.05(4) of the Regulations, as set out above.

2. Grounds 2 and 3 can be best described as emphatic disagreement with the delegate’s view of the evidence that was put before them. Grounds 2 and 3 disclose no jurisdictional error. If anything, they invite impermissible merits review by the Court.

3. The Court is satisfied the delegate considered all relevant matters. The conclusion that was arrived at, was not unreasonable, illogical or irrational. There was simply insufficient evidence that the sister would be unable to obtain support from a general practitioner, her family or other support services that were available in Australia. No particular evidence, for example, from a psychologist or a psychiatrist, was provided as to what the applicant was able to do, as compared to other qualified people or as compared to other family members.

4. No evidence was put forward in relation to the particular family circumstances as they relate to the applicant’s sister. As, for example, what financial support the applicant was providing to her and whether or not, for example, his presence in Australia stopped her from being the victim of, say, domestic violence or other abuse. I do not know the circumstances so I merely use that as an example. There was a real lack of evidence that was sufficient to show that there were compelling circumstances, bearing in mind the very high test that is required, given that the applicant initially came on a visitor’s visa, which was then extended.

5. The Court has carefully looked at the decision of the delegate and is unable to find any other error which has not been put forward by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  6 April 2020