Karan v Minister for Immigration
[2016] FCCA 3157
•13 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARAN v MINISTER FOR IMMIGRATION | [2016] FCCA 3157 |
| Catchwords: MIGRATION – Waiver of visa condition – review of decision of the Department of Immigration – exercise of the power to waive condition 8503 of sch.8 of the Migration Regulations 1994 (Cth) – whether the decision-maker erred by not considering aspects of the claims relied upon in support of the application for waiver – no obligation to provide reasons – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41(2A), 430(1)(c) Migration Regulations 1994 (Cth), reg.2.05(4), condition 8503 of sch.8 |
| Cases cited: Ahmed v Minister for Immigration & Border Protection [2015] FCA 812 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 |
| Applicant: | WILLIAM KARAN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 497 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 December 2016 |
| Date of Last Submission: | 6 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 497 of 2016
| WILLIAM KARAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of Fiji who arrived in Australia as the holder of a visitor’s visa in June 2000. On 22 August 2015, long after his visa had expired, the applicant married an Australian citizen.
The applicant wished to remain in Australia with his wife. However, his visitor’s visa had been subject to condition 8503 of sch.8 of the Migration Regulations 1994 (Cth) which meant that he was not entitled to be granted a substantive visa while he remained in Australia. The Minister may, in prescribed circumstances, by writing, waive a condition such as condition 8503: s.41(2A) Migration Act 1958 (Cth).
For the purposes s.41(2A) of the Act, reg.2.05(4) provides that: -
… 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.
Exercise of the power to waive condition 8503
On 10 February 2016, the applicant applied in writing for the exercise of the power to waive condition 8503. That application was, in the first instance, supported by statutory declarations made by the applicant and his wife. Amongst the circumstances put forward as being “compelling and compassionate” were:
· the applicant’s wife was seven months pregnant;
· her pregnancy was affected by gestational diabetes as well as by her mental condition.
The applicant’s wife also explained that she had suffered such domestic violence, physically and mentally, that she had been on the verge of committing suicide and that she had undertaken counselling.
On 11 February 2016, an officer of the Department wrote to the applicant, seeking any documentary evidence available to the applicant from a qualified medical examiner providing information regarding the current psychological condition of the applicant’s wife.
The applicant’s agent responded by email dated 16 February 2016 attaching two medical reports: one by a victim services counsellor, Josie Vander Reest and the other by a psychologist, Toni Brown. The psychologist recorded that the applicant’s wife had expressed concerns about her husband’s possible deportation which included:
1.the fear of not being able to cope mentally, emotionally and financially, when being left alone, to manage a newborn baby, and pay the rent and the bills.
2.the emotional devastation of losing her partner;
3.the fear of her parents viewing her second marriage as another failure which may lead, to her further rejection, and isolation from the family
4.fear that her mental health may once again crumble, as it has done in the past, leaving her desperate and suicidal
5.the impossibility of her travelling to Fiji, due to the gestational or diabetes
The psychologist then reported the results of a “Depression Anxiety and Stress Scale” test and opined:
The DASS indicates that although Mrs Karan’s (sic) appears to implement good stress management techniques, her levels of anxiety and depressive symptoms are elevated.
These results are of concern as Mrs Karan appears to cope satisfactorily, when in fact, she internalises her feelings, experiences high levels of anxiety, and presents with depressive symptoms. These results, together with her history of depression, trauma and suicide ideation, suggest that Mrs Karan’s mental health could suffer, if her husband, the stabilising influence in her life, is not there to support her through this difficult time of giving birth, and managing a newborn baby. The situation has been made markedly worse, by the fact, that she is isolated from her family and their support.
On 1 March 2016, a delegate of the Minister decided to refuse to grant the application to waive condition 8503. The delegate provided short reasons for the decision in a document entitled “Decision Record”[1]. In those reasons, the delegate stated that the circumstances of reg. 2.05(4) had not been met on the date of the decision. After then setting out that provision, the delegate continued:
…
I accept that your desire to remain in Australia with your pregnant wife is compassionate in nature however I must also consider whether your circumstances are 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.
Whilst I accept that temporary separation as a couple may cause you and your wife some emotional distress, as would be expected by the separation from a loved one, I have considered that hardship due to separation is a common occurrence due to migration choices. Upon request you have provided an additional psychological report in respect of your wife. The report recommends your wife to continue with her regular counselling sessions in order to maintain her mental health and well-being as well as to consider the welfare of her unborn child in making this decision. I have considered these as well as the report submitted by your family doctor stating that your wife has diabetes and is under their care. In your personal statement you cite the (sic) your reason for wishing to remain in Australia is to care for your wife however there is no medical evidence to show that further care is required. Whilst I accept your wish to remain in Australia with your wife, I have considered the full circumstances and do not consider your circumstances are sufficiently forceful to waive your no further stay condition.
…
[1] The applicant accepts that there was no obligation on the delegate to do so (see Salazar v Minister for Immigration & Multicultural Affairs [2001] FCA 899 at [26] (Allsop J as his Honour then was); Ahmed v Minister for Immigration & Border Protection [2015] FCA 812 at [11] (Perram J); see generally, Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7; but cf. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284.
Consideration
The applicant seeks judicial review of the delegate’s decision. The Court has jurisdiction in respect of that decision because no merits review is available under the Act: Ahmed v Minister for Immigration & Border Protection [2015] FCA 812 at [11].
The applicant argues that the delegate did not consider three aspects of the claims relied upon him in support of his application for waiver:
i)his wife’s need for support in view of an abusive past marriage;
ii)the expected effect of his removal on his wife’s mental and physical health; and
iii)his wife’s need to have her husband with her for their child.
The applicant’s argument rests on the fact that these matters were important aspects of his claims, but were not expressly referred to in the delegate’s reasons for decision. The applicant relies upon the following passage in the decision of the Full Court of the Federal Court in Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 concerning the approach to the reasons for a decision-maker when there is no obligation to provide any reasons:
[16]On judicial review the court may receive evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council (1980) 151 CLR 170 at 253, Craig v South Australia (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error).
[17]Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question.
(Emphasis in original)
It was not in dispute that the reasons given by the delegate in the document entitled “Decision Record” set out the delegate’s reasons for the decision.
The applicant argued that the Court is entitled to examine those reasons (though not with an eye too finely focussed on finding error) in order to determine whether particular claims were considered by the delegate: Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 at 290 [44], 295 [55]; East Melbourne Group v Minister for Planning (2008) 23 VR 605; [2008] VSCA 217 at 661 [228].
That proposition may readily be accepted; however, two matters ought to be borne in mind. First, the question of whether a decision-maker took a particular matter into consideration is a question of fact to be determined on the evidence in each case. For that reason, it is difficult to state the relevant principles at any greater level of specificity. Further, conclusions drawn by other Courts are irrelevant to the determination of any later proceedings involving different decisions and decision-makers. To rely on those conclusions would be to confuse findings of fact with propositions of law.
Secondly, where, as here, there is no obligation to provide reasons, there is similarly no obligation concerning the content of any reasons actually provided. In light of that, care must be taken not to automatically apply the approach taken to reasons, the content of which are governed by statutory provisions. A pertinent example is the Migration Act which requires the Administrative Appeals Tribunal to prepare a written statement of reasons which, amongst other things, is to include findings on any material questions of fact. This requirement enables the Court to infer that a fact that is not mentioned in the written statement of reasons was not considered by the Tribunal to be material (sub-s.430(1)(c)) and, depending on the issues before the Tribunal, reveal that it has failed properly to exercise its jurisdiction: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at 346 [69] (McHugh, Gummow and Hayne JJ).
The Minister submitted that where there is no obligation to provide reasons the Court is entitled to examine what is in those reasons to see if the decision-maker has properly understood and exercised the relevant power, but is not entitled to draw any conclusion from what is not in them. If that submission was intended to mean that the Court could not infer, in any circumstances, that a matter not referred to in reasons for decision was not considered, then it goes too far and I reject it. The correct principle is that the Court is entitled to draw inferences from what is in, and what is not in, reasons given by a decision-maker even when there is no obligation to give any reasons. Whether those inferences are drawn will be affected by all of the circumstances including the lack of requirement to give reasons: the nature and identity of the decision-maker and the decision to be made; the extent and detail of the reasons; and the matters required to be considered by the decision-maker.
Taking that approach I am not satisfied, by reference to the delegate’s reasons in this case, that the delegate failed to consider any of the circumstances put forward by the applicant in support of his application for waiver of condition 8503.
First, the delegate expressly referred to the psychologist’s report which included the circumstances which the applicant now says were overlooked. In light of that reference, it is not reasonable to infer that the delegate did not in fact read that report and take its content into account when making the decision. Secondly, the delegate did more than simply refer to the report. The reasons contain a summary of the recommendation made in that report including a reference to the mental health of the applicant’s wife. Thirdly, the delegate said in reference to the report, “I have considered these…”. Fourthly, the delegate commences the reasons by stating that the relevant material in the Departmental file has been considered and concludes by stating, “I have considered the full circumstances and do not consider your circumstances …”.
The material before the delegate was neither complicated nor voluminous. There is nothing to suggest that, contrary to the statements made in the delegate’s reasons, the delegate overlooked or simply failed to take into account, any aspect of the claims made by the applicant in support of his application.
Conclusion
For those reasons, there is no jurisdictional error in the delegate’s decision in the application must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 13 December 2016
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