Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 255
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 255
File number(s): SYG 115 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2021 Catchwords: MIGRATION – Visitor (Subclass 676) – Medical Treatment (Subclass 602) visa – condition 8503 – whether the respondent failed to consider that it is not possible to apply for a Medical Treatment visa because of the Applicant’s 8503 condition and that the Applicant’s circumstances are compelling and strong – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) reg 2.05(4)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259
Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 10 November 2021 Date of hearing: 10 November 2021 Place: Sydney Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: Ms Zinn. ORDERS
SYG 115 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIT KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the Respondent’s costs, fixed in the amount of $4900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Fiji. The applicant first arrived in Australia on 17 November 2011 on a Visitor (Subclass 676) that was valid until 8 December 2011. Attached to that visa was condition 8503, which required the applicant, after entering Australia to not be entitled to be granted a substantive visa, other than a protection visa, while he remained in Australia.
The applicant unsuccessfully lodged a protection visa application. On 21 November 2017, the applicant lodged a Medical Treatment (Subclass 602) visa application. That application was found to be invalid, due to the last substantive visa having been held by the applicant (his Visitor’s visa) was subject to condition 8503.
On 15 December 2017, the applicant applied for a waiver of condition 8503. The applicant stated that he would apply for a Medical treatment visa if condition 8503 was waived.
On 28 December 2017, a delegate of the Minister for Home Affairs (“the delegate”) refused to waive condition 8503. The applicant now seeks judicial review of the delegate’s decision.
THE DELEGATE’S DECISION
After setting out the relevant background and claims, the delegate noted that the circumstances required for there to be a waiver of condition 8503 must be compelling and compassionate. The applicant claimed that his brother had recently died in Fiji and that as a result he was depressed. The applicant stated that he would like to be able to apply for a visa to remain in Australia to receive counselling. The delegate accepted the situation as compassionate, but noted that he was also required to determine whether or not the circumstances were compelling.
The delegate noted that the term “compelling” is not defined in the migration legislation. The ordinary meaning means forceful or driving especially to a course of action. Thus the circumstances must be sufficiently forceful they lead the decision-maker to make a decision to waive the condition.
The delegate noted that the applicant would like to apply for Medical Treatment visa onshore to be able to receive counselling. Evidence was provided by the applicant’s General Practitioner that the applicant had received counselling and medication for depression and anxiety. The delegate concluded however, that the applicant had already been able to seek medical assistance and treatment from his General Practitioner and would be able to seek professional information regarding his ongoing treatment prior to his return to Fiji.
Accordingly, although acknowledging that the applicant would prefer to receive counselling and treatment in Australia, the delegate was not satisfied that the circumstances were sufficiently forceful to waive condition 8503.
Accordingly, the delegate refused the request by the applicant for a waiver of condition 8503.
GROUND OF JUDICIAL REVIEW
The applicant relies upon a single ground of judicial review contained in the Initiating Application filed on 15 January 2018. It is as follows:
Ground One
The delegate failed to consider that it is not possible to apply for a medical treatment visa because of my condition 8503 and that my circumstances are compelling and strong.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that the respondent’s written submissions had been interpreted to him. The Court also ensured the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review not merits review, and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material supplied by the applicant in support of his case 14 days prior to the hearing. The night before the hearing, a two page document was filed with the Court. Notwithstanding the late filing of the document, the legal representative for the respondent indicated that they were able to address the issues raised in the applicant’s submissions. The applicant told the Court that the medication he was currently taking was not available in Fiji and he disputed that he would be able to be properly treated in Fiji.
Following the respondent’s oral submissions, the applicant was asked if there was anything he wished to say in reply. The applicant answered “No”.
THE RESPONDENT’S SUBMISSIONS
In relation to the applicant’s complaint that the delegate failed to consider that it was “not possible” to apply for a Medical Treatment visa because of the operation of condition 8503, this complaint is misconceived. The delegate plainly appreciated that this was the case. Indeed, the entire purpose of the applicant’s waiver request, which, if successful, would allow him to apply for a substantive visa. The delegate acknowledged that the applicant wanted to remain in Australia to receive counselling and treatment, and that the applicant preferred to receive counselling and treatment in Australia. However, the delegate was not satisfied that the applicant’s particular circumstances were sufficiently forceful for condition 8503 to be waived. There was no suggestion by the delegate that the applicant could apply for a Medical Treatment visa and the delegate appreciated the applicant was not permitted to apply for a substantive visa, given the application of condition 8503.
In relation to the claim that the applicant’s circumstances were “compelling and strong” this amounts to no more than an invitation for the Court to engage in impermissible merits review: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at [272]). It was solely a matter for the delegate to determine whether the applicant circumstances were compelling and compassionate. It was reasonably open to the delegate on the information that was before him and for the reasons he gave, to find that, whilst the applicant’s circumstances were compassionate, they were not compelling. This was unsurprising, given the minimal detail provided by the applicant and the limited supporting documents provided.
The delegate correctly interpreted the concept of “compelling circumstances”, noting that it has been held that the circumstances “must be so powerful that they lead the decision-maker to make a positive finding”: (see; Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24]). The occurrence of events which were “far-reaching and most heavily persuasive” are called for in the context of considering whether there are compelling and compassionate circumstances within reg 2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”): (see; Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21]).
The applicant’s complaint that the delegate’s decision was unreasonable, cannot be sustained. There was nothing illogical, irrational or legally unreasonable in the delegate’s decision. The delegate appreciated the applicant’s circumstances, but did not find them compelling. The applicant’s complaint amounts to no more than emphatic disagreement with the delegate’s factual findings
CONSIDERATION.
The ground of judicial review relied upon by the applicant appears to relate to two different issues. The first issue is a complaint that the delegate failed to consider that it was “not possible to apply for a Medical Treatment visa”. The Court agrees with the respondent that this complaint is completely misconceived.
The very purpose of the application for a waiver of condition 8503 was to allow the applicant to apply for a Medical Treatment visa. The Court is satisfied that the delegate properly instructed herself as to the relevant law and policy. Although the delegate found that there were compassionate reasons for the applicant to remain in Australia to receive further medical treatment, on the basis of the evidence before the delegate, the delegate properly concluded the circumstances of the applicant were not compelling. There was nothing irrational, illogical or legally unreasonable in the conclusion of the delegate, in that, it is based on the evidence that was before the delegate and for the reasons the delegate gave. The Court can find no jurisdictional error in the conclusion of the delegate.
The second issue is the claim by the applicant that his circumstances were compelling and strong is also misconceived, in that, it is simply disagreement with the delegates factual findings and invites the Court to undertake impermissible merits review. As was explained to the applicant, at the commencement of the hearing, a dispute as to the factual conclusions arrived at by the delegate does not constitute jurisdictional error: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]). The single ground of judicial review has no merit.
As the applicant is unrepresented, the Court has carefully perused the delegate’s decision but is unable to find any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate: Nazrana Saheb
Dated: 17 November 2021
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