Kumar v Minister for Immigration

[2016] FCCA 1510

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION [2016] FCCA 1510

Catchwords:
MIGRATION – Application for review of decision of the delegate of the Minister – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.41, 476

Migration Regulations 1994 (Cth), reg.2.05
Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590

Applicant: DINESH KUMAR

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3030 of 2015

Judgment of: Judge Nicholls

Hearing date: 11 May 2016

Date of Last Submission: 11 May 2016

Delivered at: Sydney

Delivered on: 11 May 2016

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Mr M Glavac of Clayton Utz

ORDERS

1. The application made on 9 November 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3030 of 2015

DINESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 November 2015 seeking review of the decision of the Minister’s delegate to refuse the request of Mr Dinesh Kumar (“the applicant”) to waive the requirement of condition 8503, known as the “no further stay” condition, that attached to the applicant’s visitor visa, which was the authority for him to remain lawfully and temporarily in Australia.

2. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister, and tendered into evidence this morning (“RE1”), and the applicant’s affidavit made on 30 October 2015, to which is attached the notification made by the delegate of the refusal of the waiver request. 

Background

1. The applicant made this request for the Minister to waive the condition attached to his visitor visa on 9 October 2015 (CB 1). The applicant is a citizen of Fiji. In the request for the waiver, the applicant gives as the reason for requesting the waiver as being as follows:

   “The reason for the waiver is I would like to wait on my wife’s decision before I leave, as I would like to leave with my wife as we are together.”

2. Both parties have filed written submissions in this matter.  The applicant’s submissions are contained in a document headed “Applicant’s Response”, which the applicant explained was “informed” in part by him and was drafted with some assistance from a Ms Susan Reddy (see further below).

3. The Minister has set out statutory and regulatory provisions relevant to the delegate’s refusal of the request to waive condition 8503 in his written submissions. I agree with the relevance of the statutory and regulatory references made by the Minister, and for convenience I adopt those relevant parts of the submissions for the purposes of this judgment ([9] – [12] of the Minister’s written submissions):

   “[9] The Minister’s power to impose and waive conditions relevant to the grant of a visa are set out in sections 41(2) and 41(2A) of the Migration Act 1958 (Cth) (Act). Those sections relevantly provide:

   ‘(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).’

   [10] The term ‘prescribed’ is defined by section 5 of the Act as ‘prescribed by the regulations’. Relevantly, the ‘prescribed circumstances’ for waiver of a condition under section 41(2A) of the Act are those specified by regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) which 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; 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.’

   [11] In Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 (Thongpraphai), Justice O’Loughlin considered the phrase ‘compelling and compassionate’ and remarked at [21] that:

   ‘The circumstances that must fit the description of ‘compelling and  compassionate’ must have developed since the grant of the visa ... There is little doubt that both words call for the occurrence of an event or events that are far -reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.’

   [12] In Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570 (Terera), Justice Kenny referred to the observations of Justice O’Loughlin and remarked at [25] that:

   ‘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.’”

4. It is not in dispute that the visitor’s visa held by the applicant had attached to it a condition that the applicant not be given any further period of stay in Australia. That condition could be waived upon request by the applicant.

5. The evidence is that the applicant did seek such a waiver. In essence, the reason that the applicant said that he wanted to continue to remain in Australia was to be with his wife while she awaited the outcome of what appeared to be a protection visa application. Although it was unclear whether her matter was before the relevant Tribunal or the Courts.

6. The Minister’s delegate refused the request to waive the condition attaching to the visa on 20 October 2015 (CB 3). The delegate found that the applicant did not “satisfy the requirements” of reg.2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations) and concluded, in that light, the condition attaching to the visa pursuant to s.41(2A) of the Act was not waived.

7. The delegate refused the request on the basis that, and in particular with reference to reg.2.05(4) of the Regulations, as follows:

   “I acknowledge your desire to await the outcome of your wife’s Protection visa and leave with her is compassionate.  Although the timeframe for a decision to be made on your wife’s Protection visa is not within your control, your personal choice to stay further in Australia is within your control.  You are not included in your wife’s application and therefore there is no legal reason why you are required to stay further. Therefore I do not accept that this circumstance is a circumstance that is beyond your control.  Further, I am not satisfied that your circumstances are compelling, and I am not heavily persuaded to use my discretion to waive the condition.”

Application Before the Court

1. The grounds of the application to the Court were, and remain as follows:

   “1. The Delegate of the Minister failed to interpret and understand compelling circumstances. My wife and I are living together and any separation would cause harm and hardship to her and such is compelling.

   2. The Department granted me a visa and wanted me to depart Australia and provide airline ticket and I have to visit Compliance Section on 11 November 2015. I believe that if they compel me to depart Australia as per the grant of bridging visa the outcome of such action is compelling and I ask the Honourable Court to consider that the Delegate made an error of law in the decision.”

Before the Court

1. This matter was set down for a “show cause” hearing (r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”)) today by orders made by the Court on 20 April 2016. On that occasion the applicant appeared in person with the assistance of an interpreter. The Minister’s position at that time was that the grounds of the application did not raise an arguable case for the relief that the applicant seeks.

2. The applicant appeared in person today and was again assisted by an interpreter in the Fijian Hindi language. The applicant also sought leave, which was granted, that he be assisted today by Ms Susan Reddy, who he said had assisted him, and his wife, generally in their various applications to remain in Australia. In particular, she had assisted him in some way in the making of the application to the Court.

Issue Before the Court

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. In this regard, I note from the application that the relief that the applicant seeks is an order relevantly quashing the decision of the Minister’s delegate, and an order, in effect, returning his application for the waiver of the condition attaching to his visa to the Minister’s department for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. When the applicant and Ms Reddy were given the opportunity to explain the grounds of the application, their submissions ranged over a number of much broader matters than suggested in the grounds. In any event, the essence of the relevant oral submissions was directed to one matter. That is, that the applicant should be allowed to remain in Australia to be with his wife, pending the resolution of her protection visa application.

2. If that is understood as a request for the Court to intervene and grant the applicant a waiver of the condition attaching to his visa, because it is compassionate or compelling to do so, then the Court has no power to engage in that course of action.  If however, it is meant as a grievance against the delegate’s decision, that is, that the delegate fell into legal error in finding that the condition should not be waived, then for reasons which I will explain further, such a request does not provide a basis for indicating that any arguable case exists for the relief the applicant seeks.

3. The applicant also asked the Court to take into account various other matters. These were his “past” application for a protection visa, his wife’s circumstances relating to her protection visa application, what had occurred to his wife prior to their leaving Fiji, and the harm that would befall her, and him, if they were to return.  Again, those matters appear to ask the Court to intervene to look at the merits of their claims to remain in this country for protection.

4. Even if some relevant application in that light were before the Court, the Court cannot intervene to change any findings of fact made by any relevant Tribunal or migration decision-maker on the basis of the merits of any protection visa claim. Further, and importantly, none of those matters are before the Court in evidence. That is, none of the documentation relating to any other applications for visas are before the Court. Nor has the applicant taken the opportunity to provide evidence himself of those matters to the Court. 

5. In any event, there is nothing in what the applicant, or Ms Reddy, said to the Court today that could be said to relate to, or relevantly raise an arguable case that the delegate’s decision is affected by jurisdictional error.

6. During the course of the hearing today, the Court sought to understand the written submissions that had been made.  It became apparent to the applicant that he had not properly prepared for the hearing today, least of all in being able to explain his own written submissions. He sought an adjournment of the proceedings today “to collect his papers”.  That application, or request, for adjournment was refused as the applicant had had a reasonable opportunity to prepare for the proceedings. Further, nothing that the applicant or Ms Reddy identified before the Court caused me to believe that any of the documents to which general reference had been made could assist the applicant in the current proceedings. 

7. Neither of the applicant’s grounds put before the Court raise an arguable case for the relief that the applicant seeks.  As the Minister correctly, in my view, submits, the grounds express no more than disagreement with the delegate’s findings and his conclusion.  No discernible error of law is alleged.  The grounds seek impermissible merits review.  In that light no arguable case is raised by the grounds. 

8. Nor do the applicant’s written submissions, as contained in his document “Applicant’s Response”, advance the applicant’s case in any relevant or meaningful way. The applicant and Ms Reddy were unable to explain a number of statements made in those submissions. Nor was the applicant able to explain inconsistencies between the written submissions and what appears in his application to the Minister’s Department for a waiver of the condition attaching to his visa.

9. The submissions commence by repeating the reason for seeking the waiver of the condition and assert that the applicant is awaiting the outcome of his wife’s protection visa application. Implicitly, the argument appears to be that to be allowed to leave Australia with her is a compassionate factor. However, the delegate understood that the applicant was putting to him that there was a compassionate basis for him to be allowed to remain in Australia. Importantly, no legal error is alleged in that part of the submissions. 

10. It may be that at its highest, the grounds of the application could be understood as an attempt to assert that the delegate misunderstood the concept of “compelling circumstances” as it relates to the relevant statutory and regulatory regime that the delegate was required to apply.  However, beyond a mere assertion, there is no satisfactory explanation as to how the delegate’s analysis misunderstood or misapplied the relevant law.

11. In any event, on the evidence that is before the Court, the delegate’s decision record does not indicate that any such misunderstanding or mis-application occurred. The delegate’s approach was consistent with relevant authorities, to which I have referred, and to which the Minister has set out in his submission (see above at [5]). 

12. I note, for example, the delegate’s reference in his analysis that he was “not heavily persuaded to use [his] discretion to waive the condition”.  This plainly echoes the relevant test for the concept of “compelling and compassionate” as explained by Justice O’Loughlin in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 where his Honour, in considering the phrase “compelling and compassionate”, stated at [21]:

    “The circumstances that must fit the description of ‘compelling and compassionate’ must have developed since the grant of the visa in February 1999: Surinakova v Minister for Immigration Local Government [1991] FCA 596; (1991) 33 FCR 87. There is little doubt that both words call for the occurrence of an event, or events, that are far reaching and most heavily persuasive.  Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.” 

13. The phrase “heavily persuasive” used by his Honour, and echoed by the delegate, in context, underlines that the delegate had regard to relevant authorities in understanding the concept that he was required to consider. 

14. The applicant’s written submissions also make reference to the applicant’s wife’s protection visa application.  The submissions variously claim that the applicant was initially included in his wife’s application, or there was some joint application for a protection visa.  There is a reference in the submissions to matters accepted by the Tribunal. Those matters are said to relate to the applicant’s wife’s claims to a well-founded fear of persecution in Fiji.

15. In short, the submissions make reference to some “Tribunal decision”, which remains unidentified, and which is said to address the threats made to his wife and the harm that she feared in Fiji.  There is no evidence before the Court to support the applicant’s submission that the Tribunal decision involving his wife was included, and the matters attendant on that application were included, with the application actually considered by the delegate. 

16. The applicant’s submissions make reference to Ms Susan Reddy, who I have already said has appeared in Court today to assist the applicant.  The applicant submits that Ms Reddy assisted him with this application, which in context appears to be the application for the waiver, and who in some way, which was not satisfactorily explained, caused a copy of a Tribunal decision to be included with his application for the waiver.

17. When I asked the applicant to explain his submissions today, no satisfactory explanation was provided by him as to what he meant with the reference in the submissions to:

    “I remember that when my assistant, Susan Reddy, assisted me with my application, I included the decision record of the Refugee Review Tribunal dated 20 March 2012.  It does not seem that the decision-maker referred to this matter.”

18. Neither the applicant nor Ms Reddy was able to satisfactorily explain which decision record this purported to be, whether it be a Tribunal decision in relation to the applicant’s protection visa application, or his wife.  At best it may be said that the applicant’s explanation was that this was his wife’s protection visa application.  In any event, there is no evidence before the Court that any such document accompanied, was included, or was even referred to by the applicant in the making of his application to the delegate for the waiver of the condition.

19. In the absence of any such evidence, and indeed compounded by the lack of explanation today, it cannot be said that the delegate failed to take into account any relevant consideration, if that was the intention in what the written submissions were seeking to put before the Court.

1. In further seeking to understand the applicant’s submissions, and indeed his case before the Court today, I noted with the applicant that in his application for the waiver, the applicant was specifically asked by way of the relevant application form for the waiver of the visa condition, whether he received assistance in completing the application form. He answered, “No.” 

2. However, it is the case that Ms Reddy, on her own submission to the Court today, but also from the material that is before the Court, appears to have been a witness in support of the applicant’s wife’s application in her matter before the Tribunal.  Ms Reddy has also played a role in the matter before the Court today.  I note that the application to the Court, on its face, is said to have been prepared by her. The applicant’s signature to his affidavit accompanying the application was witnessed by Ms Reddy, albeit in her capacity as a “JP” (Justice of the Peace). 

3. In relation to the submissions that, with Ms Reddy’s assistance, the Tribunal decision record was included with his application for the waiver of the visa condition, there is no reference in the applicant’s affidavit to having attached the Tribunal’s decision record to his application.  Nor is there any reference to explain which decision record, whether his or his wife’s, or indeed some other Tribunal record.  Nor is there any other evidence before the Court from the applicant, or for that matter from Ms Reddy, to explain, or indeed to give evidence, regarding any Tribunal decision that may have been given to the delegate.

4. There is evidence that raises a reasonable inference that no Tribunal decision was in fact included with the waiver request.  The application form requesting the waiver itself, at item 17, which is headed “Checklist”, states that “You must attach documentary evidence to support your reasons for requesting this waiver” and then lists a number of items, of which relevantly the last item is “certified copies of supporting documentation; please specify below.”

5. Only one item is ticked or checked as having documents attached by the applicant, and that is “certified copy of the identity page showing photo and personal details of your passport”. There is no reference there to having attached any Tribunal decision, irrespective of whether it related to the applicant or his wife.

6. Given that circumstance, the applicant’s submissions in relation to a Tribunal decision record cannot be accepted as supporting the grounds of the application.  Importantly, the applicant’s reasons for requesting the waiver make no reference to the applicant’s wife’s claims before the Tribunal. That is, the detail of those claims, or rather the character of those claims.  Nor, for that matter, do they make any reference to any claims he may have had before the Refugee Review Tribunal previously, as the relevant Tribunal was then known.

7. The delegate was told by the applicant that he wanted more time in Australia to await the decision on his wife’s application so that they could leave Australia together. That is what the delegate considered.  The delegate found that the applicant’s desire to wait with his wife was compassionate.  However, it was not compelling in the circumstances presented.

8. The delegate reasoned that as the applicant was not included in his wife’s application, on the evidence that was available to the delegate, the applicant’s election to remain in Australia was within the applicant’s control.  This finding was the basis for the decision to refuse the waiver.  This finding, and indeed the findings that informed that conclusion, were all reasonably open to the delegate on what was before him.  In that sense, even if ground one could be said, on any implicit indication, to go beyond a request for merits review, it does not raise, in those circumstances, an arguable case for the relief that the applicant seeks.

9. Ground two asserts that if the applicant was compelled to leave Australia, as he was required to have done by 11 November 2015 by compliance officers of the Minister’s Department, the outcome of such action by the officers of the Department was itself “compelling”. Again it must be said that the ground remained unexplained in submissions. When the Court pressed the applicant, and indeed the interpreter specifically translated his ground two to him to refresh his memory, there was nothing from the applicant to explain that ground.

10. In any event, there is no evidence before the Court that this claim was ever made to the delegate. That is, the claim concerning the “compulsion” to leave Australia.  Further, there is no clear evidence that the “Compliance Section”, to which the applicant’s ground refers, acted to compel the applicant to depart Australia at a time prior to the delegate’s decision in relation to the waiver request.

11. In all the circumstances, therefore, ground two does not assert jurisdictional error in the delegate’s decision, but seeks to impugn conduct of other officers of the Minister’s Department.

12. Importantly, there is no evidence before the Court that that claim articulated in ground two was ever put to the delegate, or was identified, either expressly, or could clearly arise from the circumstances presented to the delegate, such that the delegate was required to consider it. As the Minister correctly submits, the delegate’s decision and the findings that informed it, again in relation to ground two, were all reasonably open to him. No arguable case is raised.

13. I should also note, for the sake of completeness, that in his written submissions the applicant makes reference to the policy “referred to by the Delegate is contained in Procedures Advice Manual (PAM 3) Division 2.1 – regulation 2.05”. The implication is that the delegate did not follow the policy. Contrary to the applicant’s contention, it is clear from the delegate’s decision record that he did not rely on any policy.  The delegate properly had regard to the material the applicant had presented and the relevant statutory and regulatory provisions.

14. The applicant’s complaint in this regard, therefore, has no factual basis.  Nor did the applicant satisfactorily explain that the delegate was compelled to take policy considerations into account as a relevant consideration.  Whatever policy the applicant’s submissions seek to refer to, again in circumstances where the Court sought a specific explanation, remained unexplained.

15. The applicant’s submissions before the Court today, ultimately, went to the question of whether the applicant should be allowed to remain in Australia. He argued that there were reasons that his wife, and he, feared harm on return to Fiji, that these were compelling reasons, for both the intervention of the Court to allow them to remain, and also compelling and compassionate factors in the sense that the delegate should have found differently in the waiver request. 

16. These submissions merely underline the applicant’s misunderstanding of the proceedings before the Court, and that what he seeks from the Court is impermissible merits review. There is nothing in what was said that would cause the Court to consider that there may be some arguable assertion of error that should be considered in the interests of justice.

17. I should also note, as I raised with the Minister’s legal representative today, that in his submissions the Minister submits that it was futile, in any event, for the applicant’s matter to be sent back to the delegate because the applicant’s wife’s protection visa proceedings, which were the basis on which the applicant sought to remain in Australia, had been resolved and dismissed ([8] of the Minister’s written submissions).

18. That submission was not supported by, and did not spring from any evidence before the Court. The Court is therefore unable, and does not, make any finding on the Minister’s submission of futility. I note that Ms Reddy made some reference to the applicant’s wife’s protection visa matter being on appeal. No clear explanation or evidence was available for that contention before the Court. It also does not assist the Court today.

Conclusion

1. In all, it cannot be said that the grounds, even in light of the submissions, raise some arguable case of jurisdictional error on the basis of the failure to take a relevant consideration into account.  It should be emphasised that the delegate’s decision properly had regard to the relevant statutory and regulatory regime, as that regime was explained by relevant Federal Court authorities.

2. It is the case that at a hearing pursuant to Part 44, the applicant is confined, pursuant to r.44.13(1) of the FCC Rules, to the relief sought and the grounds contained in the application to the Court. As I have said, the grounds do not raise an arguable case for the relief that the applicant seeks. This in itself is sufficient in the circumstances to dismiss the application.

3. In any event, I note further that there is no other circumstance raised by the applicant’s submissions, both written and oral, that would cause the Court to waive, pursuant to r.1.06 of the FCC Rules, the requirement of r.44.13 of the FCC Rules. I will make the order that the Minister seeks in dismissing the application pursuant to r.44.12(1)(a) of the FCC Rules.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 21 June 2016