Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 309
•2 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 309
File number(s): MLG 397 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 2 December 2021 Catchwords: MIGRATION – Review of delegate decision – refusal to waive condition 8503 – where previous waiver requests made – whether circumstances substantially different – whether formation of state of satisfaction based on misapprehension of reg. 2.05(4) – whether delegate failed to intellectually engage with evidence – application dismissed. Legislation: Migration Act 1958 (Cth), s.41(2A)
Migration Regulations 1994 (Cth), reg 2.05(4), 2.05(4)(a), 2.05(4)(a)(i), 2.05(4)(b)
Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812
Kishore v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 147
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Tumur v Minister for Immigration and Border Protection [2016] FCCA 2500
XA v Minister for Home Affairs [2019] FCAFC 166; 274 FCR 289
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 25 October 2021 Date of hearing: 25 October 2021 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant Tao Jiang Lawyers Counsel for the Respondent: Mr Taylor Solicitor for the Respondent Mills Oakley ORDERS
MLG 397 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: ZHEN JUN LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to amend the application for judicial review filed on 1 March 2017 is dismissed.
2.The application for judicial review filed on 1 March 2017 is otherwise dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 SYMONS
INTRODUCTION AND BACKGROUND
On 1 March 2017, the applicant filed an application for an order to show cause pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of a delegate of the respondent (“the Minister”) dated 24 February 2017 to refuse to waive condition 8503.
The applicant is a male citizen of China who arrived in Australia on 28 October 2008 as the holder of a Short Stay Business (Subclass 456) visa. The applicant’s visa was subject to condition 8503 which states that 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 remaining in Australia.
Section 41(2A) of the Act provides that the Minister may, in prescribed circumstances, by writing, waive a condition (including condition 8503) to which a particular visa is subject under regulations made for that purpose. In this regard, at the time of the delegate’s decision, reg.2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) stated:
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.
THE REQUESTS TO WAIVE CONDITION 8503
Between 16 November 2016 and 21 February 2017, the applicant made three requests that the Minister waive condition 8503. All were refused by different delegates of the Minister.
In his first request, lodged on 16 November 2016, the applicant provided evidence that he was married to an Australian citizen and his wife suffered from significant health issues. In support of the request, the applicant provided a letter of referral dated 15 November 2016 from Dr Sang Chung to Professor Patrick Kwan in which the most recent history taken of the applicant’s wife recorded a complaint of dizziness. The letter also referred to a clinical attendance at which the patient had mentioned “memory loss” (CB 15-18).
A delegate refused the first request on 28 November 2016. The delegate recorded findings including that he was not satisfied that the applicant had no control over the circumstances of his relationship and marriage and that although he acknowledged the circumstances regarding the applicant’s desire to remain in Australia and to care for his wife were compassionate, he did not accept that they were also compelling. The delegate referred to the medical information provided by Dr Chung but found that the “report does not demonstrate that your wife has any known or serious medical conditions that require constant care other than the medications she is currently prescribed” (CB 25-27).
In his second request, lodged on 11 January 2017, the applicant identified the reason for waiver as based on his wife’s significant health issues, which he said were beyond his control and which were also said to represent a major change in the applicant’s circumstances (CB 30). In support of the request, the applicant provided the following documents:
(a)a medical certificate from Dr Chung dated 18 January 2017 that identified the applicant’s wife as “unfit for work/study from 18/01/2017 to 18/04/2017 inclusive” and recorded a diagnosis of balance difficulty (temporary) and memory loss (temporary) and noted that “ataxia, balance difficulty to be sorted out and treated by neurologist (Dr Stephen Ng)” (CB 62);
(b)a letter from Professor Kwan to Dr Chung dated 26 September 2016 concerning the applicant’s wife in which Professor Kwan concluded with the statement: “Overall I found her symptoms difficult to characterise. There may well be cognitive decline but the features are clouded by possible depression. I think she would benefit from assessment at a Memory Clinic and suggested that she discuss with you for referral. I have not organised further review myself” (CB 63);
(c)a letter of referral from Dr Chung to Dr Steven Ng concerning the applicant’s wife dated 13 January 2017 which identified the reason for contact as “balance difficulty, fall, memory loss” and enclosed a set of blood test results (CB 64-68)
(d)a letter from Dr Steven Ng dated 23 January 2017 which certified that the applicant wife suffered from a medical condition and that the applicant was required to assist with her mobility on a daily basis (CB 69);
(e)a request for diagnostic imaging (MRI) dated 23 January 2017 for the applicant’s wife from Dr Steven Ng (CB 70);
(f)a letter from Dr Steven Ng to Dr Chung dated 23 January 2017 in which Dr Ng reports on his assessment of the applicant’s wife (CB 71-72);
(g)a psychological report dated 20 December 2016 from Warren Simmons psychologist concerning the applicant’s wife (CB 73).
A delegate refused the second waiver request on 30 January 2017. The delegate noted that the applicant’s claims were again based on his marriage to an Australian citizen who had a range of health issues and that the applicant had provided the same medical evidence that was previously considered. The delegate referred to the letter from psychologist Warren Simmons and its statement that that there had been no definitive diagnosis for the applicant’s wife and that she might benefit from anti-depression medication. The delegate was not satisfied that this information was substantially different from that considered previously. The delegate also noted that the waiver request had stated that the applicant’s wife was to see a specialist on 17 January 2017 but to date, no new information had been presented (CB 81-82).
The third waiver request is the subject of this application for judicial review. It was lodged on 21 February 2017 and accompanied by a statement that identified the reasons for the request in the following terms:
Although marriage to an Australian permanent resident is not considered ‘beyond the control’ of the applicant for the purposes of the waiver provision, this waiver request is based on his wife’s significant health issues at the moment of the request, which is beyond his control and represents a major change in his circumstances. The wife has no relatives in Melbourne except the applicant. The wife’s only adult son is married he and his wife work and live in Perth, Western Australia. This waiver request is also based on the applicant’s political status at the moment of the request, that he is one of the key members of the Chinese Democratic Party (Australia) and the Chinese & Tibetan Friendship Association (Melbourne) and in view of the applicant’s very public involvements with the Party and the Association (both of which are anti-Chinese Communist Party), there is a real risk that the applicant will suffer significant harm and persecuted by the Chinese Community Party since 9 December 2012, it is a long standing married relationship, the Wife is extremely worried about her husband’s safety should he be returned to China (CB 86).
The submission was made that the medical evidence showed the development of new symptoms that the wife was suffering and that a new report would be provided as soon as an MRI was finalised (CB 88).
The waiver request was accompanied by four documents concerning the applicant’s wife’s medical condition/s. It is common ground that all but one of these documents, being a hearing test conducted by an audiologist (CB 95-98) had been provided as part of the second waiver request.
A delegate refused the third waiver request on 24 February 2017 (CB 109-111). In the written decision record, the delegate identified the first and the second waiver request and noted that they both contained claims that the applicant was now married and that his wife suffered from significant health issues. The delegate also recorded that the second request claimed additionally that the applicant was left to assist with the wife’s day to day care as a result of these health conditions.
The delegate noted in respect of the third (extant) request that it was claimed that the applicant was married and that his wife suffered from significant health issues which required the applicant’s assistance. The delegate also noted the applicant’s additional claim concerning his membership of the Chinese Democratic Party (Australia) and the Chinese and Tibetan Friendship Association (Melbourne), as a result of which he apprehended significant harm and persecution.
The delegate then recorded the following:
Regulation 2.05(4), of the Regulations, sets out the circumstances in which the Minister may waive a certain condition, in this case, condition 8503. Where the Minister has previously refused to waive the condition (on 13 February 2016), the Minister must be satisfied that compelling and compassionate circumstances have developed since the client was granted the FA-600 Tourist visa that was subject to condition 8503, over which the client had no control, and resulted in a major change in their circumstances and are substantially different from those considered previously.
Having considered all of the evidence and claims in the third request under paragraph 2.05(4)(b) of the Regulations, my consideration of the circumstances in this current request will be limited to those circumstances which are substantially different from those considered previously. The claims which are to be considered are that the client is a key member of the Chinese Democratic Party (Australia) and the Chinese and Tibetan Friendship Association (Melbourne), and that as a result there is a real risk that the client will suffer significant harm and persecution by the Chinese Communist Party if he returns to China. (CB 89)
In respect of the “new” claim, the delegate acknowledged that the circumstances were compassionate given the applicant’s wife’s worry about her husband if he should return to China, but on the basis that the claims were general and not supported by evidence, the delegate did not find that the circumstances were sufficiently forceful (or compelling) to waive the condition.
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 1 March 2017 contains the following six grounds:
1.The delegate of the Respondent misconstrued reg. 2.05(4) of the Migration Regulations 1994 and thereby failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, to decide whether the Applicant’s circumstances at the time of the decision were “substantially different from those considered previously”.
2.The delegate of the Respondent failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, conferred upon him by reg. 2.05(4) of the Migration Regulations 1994, by failing to consider whether the state of the health of the Applicant’s wife and the consequential need for assistance of the type and extent required had resulted in a major change to the circumstances of the Applicant since being grant a visa with a “no further stay condition”.
3.The delegate of the Respondent failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, conferred upon him by reg. 2.05(4) of the Migration Regulations 1994, by failing to take into consideration information which he was required to consider, namely the state of the health of the Applicant’s wife and the consequential need for assistance.
4.The delegate of the Respondent failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, conferred upon him by reg. 2.05(4) of the Migration Regulations 1994, by failing to consider whether evidence that the Applicant was at risk of persecution if he were to return to China, constituted “a major change to [his] circumstances”.
5.The delegate of the Respondent failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, conferred upon him by reg. 2.05(4) of the Migration Regulations 1994, by ignoring the evidence presented to him that demonstrated the Applicant “would be in significant danger if he were to return to China”.
6.The delegate of the Respondent failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, conferred upon him by reg. 2.05(4) of the Migration Regulations 1994, by inflexibly applying the policy rather than considering the merits of the Applicant’s case.
On 29 August 2017, a Registrar of this Court made orders to progress this matter to hearing. These orders included that the applicant, by 4 October 2017, file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book, and written submissions. The matter was listed for final hearing on 30 March 2020. The applicant did not file any material responsive to these orders.
On 25 October 2017, the Minister filed written submissions dealing with the pleaded grounds of review.
On 18 February 2021, the matter was listed for final hearing on 13 April 2021.
On 31 March 2021, the applicant filed written submissions and an amended application. The effect of the proposed amended application was to make changes to existing grounds 1 and 5, abandon existing grounds 2, 4 and 6 and introduce a new ground 7.
Reflecting the late filing of the applicant’s material, the Court, on 13 April 2021, made orders vacating the hearing on that date. The Court also ordered that: (a) the respondent file and serve further written submissions by 7 days before the hearing; (b) the question of whether the applicant be granted leave to rely on the proposed amended application filed on 31 March 2021 be determined at the hearing; and (c) the applicant pay the respondent’s costs thrown away by reason of the applicant’s late filing of the proposed amended application and written submissions, fixed in the sum of $700.
On 28 May 2021, the Minister filed further written submissions. In these submissions, the Minister addressed the grounds identified in the amended application but in the context of its broader submission that the applicant should be refused leave to rely on the amended document. The Minister made the submission that the proposed amended application was filed some three years and five months after the date provided in the Court’s original orders, no explanation had been offered for this extensive delay, despite the applicant being legally represented, and the proposed new grounds lacked sufficient merit.
On 25 October 2021, the matter came before me for final hearing. A few days prior to that date (on 20 October 2021), the applicant filed an affidavit affirmed by his solicitor, Mr Tao Jiang. To the extent that this affidavit contains an explanation for the delay in filing, this appears in paragraphs [2] and [3], which state:
[2] The reasons for missing the deadline of 4 October 2017 for the filing of any amended application with proper particulars of the grounds of the application; a supplementary court book, if any; and written submissions were that my law firm overlooked this deadline. It had already been the practise for this law firm for Migration Review Matters and my memory goes that normally any amended application and submission are not due until at least 28 days before the fixed final hearing. My mind did not turn on to this matter until this law firm received the notice of listing for fixed final hearing. I apologize to the Court for this oversight by my firm.
[3] Further, it was not intended or expected in 2017 that there would be any amendment to be made to the Application and normally we would brief a barrister to do the submissions at least 28 days before the date fixed for final hearing.
At the outset of the hearing, the Minister’s representative, Mr Taylor, informed the Court that his client continued to object to the late filing of the amended application and opposed leave being granted to the applicant to amend the judicial review application in relation to grounds 1(b) and 7. The Minister accepted that ground 1(a) involved the particularisation of the extant ground 1, ground 3 had not been altered and ground 5 only modestly so.
I indicated to the parties that I would hear argument both on the question of whether leave should be granted and, assuming leave is granted, on the substantive merits of the proposed amendments.
Ground 1 – particular (a)
Ground 1(a) as amended is as follows:
1.The delegate of the Respondent misconstrued reg. 2.05(4) of the Migration Regulations 1994 and thereby failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, to decide the Applicant’s third waiver request.
(a) The delegate said:
“…my consideration of the circumstances in this current request will be limited to those circumstances which are substantially different from those considered previously. The claims which are to be considered are that the client is a key member of the Chinese Democratic Party (Australia) and the Chinese and Tibetan Friendship Association (Melbourne), and that as a result there is a real risk that the client will suffer significant harm and persecution by the Chinese Communist Party if he returns to China” (CB 110).
But once the delegate had decided that there were substantially different circumstances, because of the addition of the fear of significant harm and persecution, the delegate was obliged to consider the whole of the Applicant’s circumstances which had developed since the grant of the visa subject to condition 8503, because cumulatively the whole of the circumstances had changed.
The applicant, through his counsel, Mr Krohn, made the submission that regulation 2.05(4) sets pre-conditions for the Minister to waive the relevant condition. One is that “since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed” (reg. 2.05(4)(a)), and another is that “the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously” (reg. 2.05(4)(b)).
The applicant submitted that in this matter, the question for the delegate was whether compelling and compassionate circumstances have developed since the grant of the applicant’s visa. The question for the delegate on the third waiver request was not only whether the discrete item of fear and risk of persecution was compelling and compassionate, but whether the global evolution of the circumstances of the applicant, taken as a whole, were compelling and compassionate when considered together. It was therefore a misconstruction of the law for the delegate to exclude, as the reasons show the delegate did, the consideration of the applicant’s wife health as part of the whole situation, substantially different from the matter of the wife’s health considered alone previously.
The applicant submitted that if his construction of reg.2.05(4) was not accepted, this would promote an artificial consideration of only part of the visa holder’s situation that was antithetical to the power to grapple with the situation at the time that the application for waiver was made. The applicant’s submission accommodated the delegate exercising a wide discretion.
The Minister submitted that the applicant’s construction of reg.2.05(4) involved a strained interpretation that required the delegate to treat the entirety of the applicant’s claimed circumstances as an indivisible unit. Instead, the text of reg.2.05(4) revealed a clear intention to prevent ad infinitum reconsideration of claims already determined by a decision-maker, while not foreclosing consideration of substantially different claims.
The submission was made that the legislative purpose would be thwarted if a decision-maker was required to conduct a fresh examination of claims which had previously been considered and determined, simply because a subsequent request added a fresh claim in addition to those previously determined claims. Accordingly, and as a matter of logic, it must be permissible for a decision-maker to treat multiple distinct claims about an applicant’s circumstances separately.
The Minister also made the submission that a proscription against treating claims separately would lead to absurd results. It would not be possible for a decision-maker to assess the circumstances as a whole against the requirements of reg.2.05(4)(a). Where fundamentally distinct claims were raised jointly in a waiver request, it would not be possible for a decision-maker to ask whether the claimed circumstances as a whole were compelling and compassionate, the applicant had no control over them, or they resulted in a major change in circumstances.
The Minister submitted that the delegate had appropriately treated the two claimed circumstances – being the wife’s health and the applicant’s political status – individually and found that the claimed circumstances concerning the applicant’s wife’s health were not substantially different from those considered in a previous waiver request. Accordingly, the delegate found that reg.2.05(4)(b) operated in respect of those claims, but not in respect of the applicant’s political claims.
The Minister contended that the critical question for the Court on judicial review was not whether the subsequent claims were in fact substantially different from the earlier claims, but whether the delegate was satisfied that this was so (citing Kishore v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 147 at [39] and Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (“Ahmed”) at [18]). The Minister submitted that the delegate’s reasons plainly indicated that the relevant state of satisfaction was not met, and it was open to the delegate to make that finding. Having found that reg.2.05(4)(b) operated in respect of the claims concerning the applicant’s wife’s health, no error was revealed by the delegate not assessing those claims against the requirements of reg.2.05(4)(a) (citing Tumur v Minister for Immigration and Border Protection [2016] FCCA 2500 at [20].
Consideration – ground 1(a)
In my view, the premise of the applicant’s argument involves a misconstruction of the delegate’s reasons. The delegate did not - as the applicant submits in the framing of the particulars to this ground – decide that there were substantially different circumstances, because of the addition of the fear of significant harm and persecution. Instead, it is clear that the delegate formed the view that the new claim concerning the applicant’s membership of the Chinese Democratic Party (Australia) and the Tibetan Friendship Association (Melbourne) (“political circumstances”) was divisible from the applicant’s original claim concerning the significant health issues of his wife (“health circumstances”). The delegate then considered whether the political circumstances, dissociated from the health circumstances, satisfied reg.2.05(4)(a) of the Regulations.
While a different delegate might have taken the view that the whole of the applicant’s circumstances, comprehending both the health circumstances in their most recent articulation and the political circumstances, were capable together of satisfying reg.2.05(4)(b) of the Regulations, it was in my view open to the delegate to approach the assessment in the manner that he did. The approach did not manifest a legally erroneous view as to what it was about which the delegate needed to be satisfied.
The application of reg.2.05(4) was considered by Perram J in Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (“Ahmed”). In that case, his Honour made the following observations concerning sub-regulations (a) and (b). Firstly, that sub-reg. 2.05(4)(a) deals with a first attempt to apply for a waiver whilst (b) says that the Minister cannot waive a condition if the waiver request has already been made but there is nothing, in substance, new as at the time of the second request (Ahmed at [6]).
Second, that sub-reg.2.05(4)(b) is couched in the language of the Minister’s satisfaction (Ahmed at [7]).
Third, that there is no obligation on the delegate to produce reasons under reg.2.05(4) (Ahmed at [11]).
Here, as he was required to do, the delegate applied reg.2.05(4)(b) because this was the applicant’s third application. This invited the question of whether he as delegate was satisfied that the circumstances of the third waiver application were substantially different from those which he had previously considered (cf Ahmed at [13]). As has been earlier identified, the delegate was, to the extent that the third waiver application relied upon the health circumstances, not so satisfied. The delegate thought that there was no substantial difference between the three applications. This lack of satisfaction was open to the delegate on the material that was before him which disclosed, as between the second and the third waiver request, negligible differences in the matters relied on by the applicant. In these circumstances, the delegate did not lack legal authority to make the decision that he did and the ground, in its amended iteration, must be dismissed.
Proposed ground 1 – particular (b)
Ground 1(b) is as follows:
1.The delegate of the Respondent misconstrued reg. 2.05(4) of the Migration Regulations 1994 and thereby failed to exercise the jurisdiction, or erred in the exercise of the jurisdiction, to decide the Applicant’s third waiver request.
(a)In so far as the delegate agreed with the submission by an officer of the Minister’s department that the applicant’s marriage and the effect of his wife’s medical conditions were not outside his control within the meaning of Regulation 2.05(4)(a)(i), the delegate erred in construing the Regulation.
The applicant submitted that it cannot be the intention of Parliament that the Regulations made under the Act should penalise marriage, given Australia is a party to international agreements including the International Covenant on Civil and Political Rights, which enshrines the right of persons to marry and found a family. The applicant further submitted that it cannot be a proper construction of the Regulations to find that the applicant’s wife’s health, her needs as a result, and the responsibility of the applicant as her husband to help care for her, were not outside his control. The applicant contended that this ignores the ordinary meaning of the English language, and the plain meaning of the text of the Regulations.
The Minister submitted that particular (b) cannot succeed unless the contention in particular (a) is made out, because it assumes that the delegate was required to assess the claims concerning the applicant’s wife’s health against the requirements of reg.2.05(4)(a).
Consideration – ground 1(b)
Proposed ground 1(b) also distorts the decision of the delegate to accommodate a finding that simply was not made. The delegate did not find, including by adopting the submission by an officer of the Minister’s department, that the applicant’s marriage and the effect of his wife’s medical condition were not outside his control within the meaning of reg.2.05(4)(a)(i). Instead, the delegate, appropriately, did not consider the application of this sub-regulation against the health circumstances for the reason that he had already determined that those circumstances did not satisfy sub-reg.2.05(4)(b). Proposed ground 1(b) is without merit.
Ground 3
Ground 3 alleges a failure by the delegate to exercise jurisdiction constituted by a failure to take into consideration the state of the health of the applicant’s wife and the consequential need for assistance.
The applicant made the submission that the delegate was required to consider each necessary and relevant consideration, including “with an active intellectual engagement” and that the health of the applicant’s wife had this character.
The Minister made the observation that the success of this ground is contingent on the success of ground one and the construction for which the applicant contends and that for this same reason, must also fail.
Consideration – ground 3
Having regard to my findings concerning ground 1(a) and the approach to be adopted upon successive waiver requests, it follows that this ground must fail. The delegate recorded a finding that he was not satisfied that the health circumstances were substantially different from those considered previously for the purpose of sub-reg.2.05(4)(b). Having reached this state of satisfaction, the delegate was not required to take into consideration the state of the health of the applicant’s wife and any consequential need for assistance for the purpose of determining whether such matters were capable of satisfying sub-reg.2.05(4)(a).
Ground 5
Ground 5 has been only modestly amended from its form in the originating application. It alleges a failure to exercise jurisdiction constituted by the delegate failing to engage intellectually with and/or ignoring the evidence presented to him that demonstrated that the applicant would be in “significant danger” if he were to return to China.
The applicant submitted that the delegate’s observation that “I have considered that these claims are general” did not engage with the concrete claims that were made, which included that the applicant held a position of responsibility in a newspaper opposed to the government of the PRC and that he engaged in other activities of the Chinese democracy movement in Melbourne including protesting the Chinese government for the abuse of human rights in China and supporting the freedom of movement of Tibetan people by delivering his speech many times in public.
The applicant made the submission that the delegate’s observation that “there is no evidence to support claims that the client would be in any significant danger if he were to return to China” failed to grapple with the ample evidence generally available, and certainly available to the Minster and to his delegates, of the perils faced by those who publicly opposed the government of the PRC.
The applicant noted that in support of the third waiver request, he provided a letter authored by a person (Mr Jie) identified as the Chief Editor of Tian An Men Times, President of the Chinese Democratic Party (Australia) and Co-Chairman of Chinese and Tibetan Friendship Association (Melbourne) (CB 94). The applicant submitted that this document, on its face, recorded that the applicant had different and important roles and, given the evident qualification of the author to make these statements, added force to the submission that the delegate failed to engage with his claim to apprehend harm arising from his political connections and activity.
The Minister, on the other hand, submitted that the delegate plainly considered the applicant’s claims concerning his political activity and found that the claimed circumstances were not compelling for two reasons: first, that the claims were general; and secondly that there was no evidence the applicant faced significant danger in China.
The Minister submitted that these findings were open to the delegate on the material and adequately dealt with the claim that the applicant’s circumstances were compassionate and compelling. The Minister described the totality of the applicant’s claims and evidence concerning what would happen to him on return to China as:
(a) In the attachment to the waiver request:
(i)“…there is a real risk that the applicant will suffer significant harm should he be returned to China” (CB 86, [2]);
(ii)“…the Wife is extremely worried about her husband’s safety should he be returned to China” (CB 86, [2]); and
(iii)“…the applicant and the applicant’s wife’s fear of the applicant being persecuted by the Chinese Communist Party should the applicant is returned to China” (CB 88, [10]).
(b) In the letter of Mr Jie dated 12 February 2017 (CB 94):
(i)“…it’s reasonable to expect that he will be persecuted by the Chinese communist party if he goes back to China” (CB 94.6).
The Minister made the further submission that although the applicant had claimed to be a member of anti-communist groups and to have engaged in various activities with a political dimension in Australia, the applicant gave no evidence as to why he faced danger in China. There was no suggestion that any of the applicant’s activity was known to any person in China. In those circumstances, it was open to the delegate to find that there was no evidence to support the applicant’s claim to face danger on return to China.
Consideration – ground 5
The delegate dealt with what I have referred to above as the “political circumstances” as follows (CB 110-111):
…The claims which are to be considered are that the client is a key member of the Chinese Democratic Party (Australia) and the Chinese and Tibetan Friendship Association (Melbourne), and that as a result there is a real risk that the client will suffer significant harm and persecution by the Chinese Communist Party if he returns to China.
I acknowledge that the circumstances are compassionate in that the client’s wife is extremely worried about her husband if he should return to China, due to claims that he is at risk of significant harm by the Chinese Communist Government.
I must also consider whether the circumstances are compelling. The term ‘compelling’ is not defined in the migration legislation. It is therefore 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.
I acknowledge the claim that the client is a key member of the Chinese Democratic Party (Australia) and the Chinese and Tibetan Friendship Association (Melbourne), and that as a result there is a real risk that the client will suffer significant harm and persecution by the Chinese Communist Party if he returns to China. However, I have considered that these claims are general, and there is no evidence to support claims that the client would be in any significant danger if he were to return to China. Therefore, I do not find that the circumstances are sufficiently forceful to waive the condition. I do not find the circumstances compelling.
Although these reasons are relatively brief, I am mindful that the assessment of whether they fall short of the required standard and, as the applicant submits, expose a failure to actively and intellectually engage with or ignore evidence directed at the claim that the applicant would be in significant danger if he was to return to China must be undertaken with an appreciation of the fact that, as noted above at [39], the delegate was under no statutory obligation to provide reasons.
In XA v Minister for Home Affairs [2019] FCAFC 166; 274 FCR 289 at [177], Thawley J (with whom Lee J generally agreed) identified the following general principles which apply to the interpretation of a decision record in these (more limited) circumstances:
(a)The court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 (‘Plaintiff M64’) at [25]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282.
(b)An error of law might be demonstrated by inference from what the delegate said by way of explanation given for the decision made; however, whether it is appropriate to draw the inference must be assessed having regard to the fact that there was no statutory requirement to provide reasons: Plaintiff M64 at [25].
(c)By reason of the fact that there was no obligation to provide reasons, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the delegate”: Plaintiff M64 at [25] (emphasis in original); the fact that the decision does not mention a matter does not, of itself, indicate that the matter was ignored: Plaintiff M64 at [25].
(d)Related to the last point, an applicant cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings: Plaintiff M64 at [36].
Assessed against these parameters and having regard to the nature of the claims articulated and the material provided by the applicant in support of his third waiver request, I am not satisfied that the delegate’s decision, assessed through the prism of its written statement, discloses that the delegate failed to engage intellectually with or overlooked the evidence provided by the applicant directed at establishing that he would be in significant danger if he returned to China.
The evidence was of limited compass – restricted to the letter from Mr Jiu and assertions made by the applicant’s representative contained in a written submission (CB 86-88) and a series of photographs that were said to depict the applicant distributing newspapers, attending a meeting with members of the Chinese Democratic Party (Australia) and burning a Chinese national flag (CB 99-101). Although the material attributed various leadership positions to the applicant, it did not identify with any particularity, the type of conduct engaged in by the applicant in Australia, or the basis – beyond conjecture – upon which he apprehended that he would come to the attention of Chinese authorities or be susceptible to harm, of any description, upon return to China. In this respect, it was open to the delegate to characterise the claims advanced by the applicant as general and to find that there was no evidence to support claims that the applicant would be in any significant danger if he was to return to China. This was especially the case in circumstances where the statutory assessment was directed at whether the claimed circumstances were, amongst other things, compelling in character.
For these reasons, ground 5 is without merit.
Ground 7
Proposed new ground 7 is as follows:
Further or in the alternative to the other grounds of this application, the delegate of the respondent was unreasonable.
Particulars
(a)It was unreasonable for the delegate not to find compelling and compassionate circumstances to waive condition 8503, given the claims, evidence and other material, considered independently and cumulatively, relating to the health of the applicant’s wife and her needs, and to the risk of persecution or serious or significant harm to the applicant if he were to return to China.
The applicant submitted that no reasonable delegate could have failed to find the combination of circumstances – the grave problems of health of the applicant’s wife, her extreme worry at his possible return to China, accepted by the delegate as part of compassionate circumstances, and the risk to the applicant as a publicly active and known opponent of the PRC government as anything less than compelling. In this last respect, the applicant submits that the delegate expressed no doubt about the applicant’s long-standing opposition to the PRC government. Severally, and in combination, the only reasonable conclusion was that the circumstances were compelling.
The Minister submitted that proposed ground 7 should be understood as an invitation to engage in impermissible merits review of the delegate’s decision. The Minister contended that the delegate’s decision was supported by cogent reasons which demonstrated an evident and intelligible justification for the decision to refuse the third waiver request. There was no absence of a logical connection between the evidence and the delegate’s reasons. Further, the decision was not one at which no rational or logical decision maker could arrive on the same evidence.
Consideration – ground 7
Having regard to my earlier findings concerning ground 1(a) and the approach to be adopted upon successive waiver request, the only circumstances properly before the delegate capable of satisfying sub-reg. 2.05(4)(a) were the political circumstances. I do not accept that these circumstances were capable of reasonably producing only one outcome upon analysis, namely, that they were compassionate and compelling. This conclusion reflects the character and quality of the material and claims that were before the delegate (discussed at [60] above) and the appraisal by the delegate of the material and the claims which I have found (in relation to ground 5) was open to it. Further, while the delegate did not explicitly call into question the applicant’s opposition to the PRC, neutrality on this issue could not overcome the delegate’s misgivings concerning the lack of evidence concerning the consequences to the applicant upon any return to China.
Ground 7 is without merit.
Leave to amend
The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no satisfactory explanation for a very late application for amendment, the merits are not necessarily decisive.
There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They knew of the orders allowing an amendment but overlooked them for over three years, including after the Minister had filed his written submissions and the matter was first allocated a final hearing date. In these circumstances and where I have determined that the proposed grounds 1(b) and 7 are without merit, it would not be in the interests of justice to grant leave to the applicant to amend his application.
I will dismiss the application to amend and otherwise dismiss the application including, for the avoidance of doubt, grounds 1(a), 3 and 5.
I will further order that the applicant pay the respondent’s costs fixed in the amount of $7,000.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 2 December 2021
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