Kaur v Minister for Immigration
[2011] FMCA 367
•18 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION | [2011] FMCA 367 |
| MIGRATION – review of delegate’s decision to refuse to waive condition 8503 of applicant’s visa – whether delegate’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth), s41 Migration Regulations 1994 (Cth), Condition 8503 of Schedule 8, sub-regulation 2.05(4) |
| Hager v Minister for Immigration [2010] FMCA 942 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 |
| Applicant: | MARGARET KAUR |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 835 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 May 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2011 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | D. Hughes |
| Solicitors for the Respondent: | A. Wood (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 835 of 2011
| MARGARET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a delegate of the respondent (“the Delegate”), made on 15 April 2011, refusing to waive condition 8503, being a condition of the applicant’s visa.
The relevant background to this application is accurately set out by counsel for the respondent, Mr Hughes, in his written submissions as follows:
“5. The Applicant is a citizen of Fiji. The Applicant entered Australia seven times between 27 October 2002 and 24 October 2009 on various temporary visas, the final time on a Visitor visa (Subclass 676). Her current visa, a Bridging Visa E (Subclass 050), required her departure on or by 1 May 2011. She is currently in Australia unlawfully.
6. The Applicant’s Visitor visa was subject to condition 8503. That condition is set out in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) and is in the following terms:
“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.” ”
RECORDED : NOT TRANSCRIBED
In support of her application this morning, the applicant read two affidavits, the first sworn by her on 28 April 2011 and filed on
29 April 2011. The second affidavit was sworn on 16 May 2011 and filed on 16 May 2011. The first affidavit annexes a copy of the Delegate’s decision, dated 15 April 2011, together with copies of letters sent to the Delegate in support of the applicant’s application for a waiver of condition 8503 of her visa. The respondent tendered similar documents, being part of a bundle of documents identified as “Court Book”, filed on 16 May 2011 and marked Exhibit 1R.
By letter dated 2 April 2011, the applicant applied to the Minister for a waiver of condition 8503 (“Waiver Request”).
The applicant’s Waiver Request sought the waiver for the following reasons:
a)The applicant’s husband, who is an Australian citizen resident in Australia, is suffering from medical conditions;
b)The son of the applicant’s husband recently committed suicide, and as a result the applicant’s husband is very depressed and sad, and should not be deprived of support in such circumstances;
c)The applicant’s husband has no one else to look after him in his illness and his grief, and the applicant is unwilling to leave him and go back to Fiji while he is in that condition;
d)The applicant’s ex-husband in Fiji wishes to harm the applicant, with the consequence that the applicant cannot take her present husband with her to Fiji because her ex-husband may also harm her present husband; and
e)The applicant seeks a waiver of condition 8503 so that she can lodge an application for a partner visa in Australia.
The decision letter of the Delegate, dated 15 April 2011, is as follows:
“Dear Ms Kaur,
Re: Request to waive Condition 8503 (No Further Stay)
I refer to the request, lodged with the Department on 11 April 2011, to waive the 8503 (no further stay) condition that was imposed on your subclass 676, visitor Visa.
After careful consideration of the relevant legislation and the claims you have presented in your request a delegate of the Minister has determined that your circumstances do not satisfy the requirements of sub-regulation 2.05(4) of the Migration Regulations 1994, and therefore has not waived the 8503 condition under sub-section 41(2A) of the Migration Act 1958.
You may access the link below for detailed information about the 8503 waiver Provisions: 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.
Please note that this decision is not reviewable by the Migration Review Tribunal.
It is noted that your Bridging visa E will expire on 15 April 2011. Please ensure you make arrangements to depart Australia on or before that date.”
It is clear from the applicant’s evidence that, at the time of the consideration of the request to waive condition 8503, the Delegate had before it, the circumstances which the applicant alleges were compelling and compassionate, and over which she had no control and had resulted in a major change to her circumstances.
The relevant legislative provisions are also set out in Mr Hughes’ submissions and are as follows:
“12. The Minister’s power to waive condition 8503 flows from section 41 of the Migration Act 1958 (Cth) (Act), which relevantly provides:
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(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).
13. Sub-regulation 2.05(4) prescribes the circumstances in which the Minister may waive a condition of the kind referred to in section 41(2)(a):
(4) 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; 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.
14. It is apparent from the Decision Notification that the Delegate refused the Waiver Request because the Delegate did not consider that the requirements of sub-regulation 2.05(4)(a) had been met.”
The applicant filed her application for judicial review of the Delegate’s decision on 29 April 2011. The grounds of that application are as follows:
“1. The Delegate of the Minister ignored important and compelling circumstance,
2. The Delegate misapplied the law.”
The grounds of the application are unsupported by particulars, evidence, or relevant submissions.
The applicant was unrepresented before the Court this morning. She did not have the need of an interpreter.
The applicant confirmed that the grounds of her application were as identified in her initiating application.
The power of the Court to review the Delegate’s decision, as disclosed in its letter of 15 April 2011, is limited to the issue of whether or not that decision was affected by a jurisdictional error. I accept the submission of counsel for the respondent, and the authorities referred to in support of the proposition that there is no obligation on the Delegate to provide reasons for the decision (see Hager v Minister for Immigration [2010] FMCA 942 at [10]). Counsel for the respondent acknowledged the difficulty that that placed the applicant in being able to identify a jurisdictional error on the face of the Delegate’s decision record.
The Delegate’s decision record clearly states that it gave careful consideration to the relevant legislation and the claims that the applicant presented in the Waiver Request. However, the Delegate concluded that since the applicant was granted the visa that was subject to condition 8503, there were no circumstances that had developed over which she had no control and had resulted in a major change to her circumstances, and are both compelling and compassionate.
The applicant submitted to the Court this morning that the Delegate had ignored her circumstances, and that the decision was unfair and unreasonable. However, none of those submissions identifies a jurisdictional error on the part of the Delegate. There is no evidence to suggest that the Delegate ignored the applicant’s circumstances as claimed. As stated above, the Delegate specifically stated that he had given careful consideration to those claims.
The Delegate, in making its finding, has clearly referred to the relevant language of sub-regulation 2.05(4) of the Migration Regulations1994 (Cth), and has otherwise referred to the correct legislation in considering its decision.
In the circumstances, there is no error of law apparent on the face of the Delegate’s decision, and none has been identified by the applicant.
At the heart of the applicant’s complaints are disagreements with the findings and conclusions of the Delegate. Such complaints or disagreements invite merits review which this Court cannot undertake (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
In the circumstances, I am not satisfied that the decision is affected by any jurisdictional error. Accordingly, the decision is a privative clause decision with which the Court has no power to interfere. The proceeding before this Court, commenced by way of application filed on 29 April 2011, should be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I further direct that no orders be entered in respect of this matter until I have had an opportunity to settle my reasons.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 20 May 2011
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