Nguyen v Minister for Immigration
[2019] FCCA 572
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION | [2019] FCCA 572 |
| Catchwords: MIGRATION – Sponsored family visitor (subclass 679) visa – condition 8503 – waiver – compelling and compassionate circumstances – major change beyond visa‑holder’s control – development of circumstances relevant – date on which circumstances occur irrelevant – constitutional writs issued. |
| Legislation: Migration Act 1958, s.41(2A) Migration Regulations 1994, reg.2.05, sch 2 cl 679.611, sch 8 item 8503 |
| Cases cited: Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335 |
| Applicant: | THAN THAO NGUYEN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 1349 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 19 February 2019 |
| Date of Last Submission: | 5 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms G Costello |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Mr B Petrie |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the first respondent’s delegate.
A writ in the nature of prohibition issue restraining the respondent, by himself, his employees, officers, delegates or agents, from removing the applicant from the Commonwealth of Australia.
A writ of mandamus issue requiring the respondent by himself or his delegate to determine the applicant’s request according to law.
The respondent pay the applicant’s costs of the proceeding fixed in the amount of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1349 of 2016
| THAN THAO NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
By application to this court filed on 24 June 2016, as amended on 28 February 2019, the applicant sought judicial review of the minister’s delegate dated 1 June 2016 refusing to waive condition 8503 (called in this case “the no further stay condition”).
The short point in this application was whether the delegate erred in finding that under reg 2.05 of the Migration Regulations the condition in s 41(2A) of the Migration Act ought to have been waived.
The applicant said that the evidence showed that subsequent to the grant of the relevant visa, compelling and compassionate circumstances had developed over which the visa applicant had no control that resulted in a major change of the visa applicant’s circumstances and that, by reason of those factors, the condition prescribed in s 41(2A) of the Act should have been waived.
The minister submitted that the delegate made no error.
The question in this case was whether the delegate erred.
Synopsis
For the reasons that follow, in my view the delegate did err in fact and in law. The delegate’s decision must be set aside.
Short factual narration
The applicant, a citizen of Vietnam, arrived in Australia on 2 March 2010 as the holder of a sponsored family visitor (subclass 679) visa. It was to expire on 2 June 2010. The visa was subject to a no further stay condition as provided for in cl 679.611 of sch 2 to the regulations and item 8503 of sch 8 to the regulations.
In June 2010, the applicant did not depart Australia prior to the cessation of her visa and therefore, she became an unlawful non-citizen. Almost six years later pursuant to s 41(2A) of the Act she applied for a waiver of the no further stay condition. Her migration agent provided a letter dated 23 May 2016 to support the applicant’s waiver application along with various supporting documents.
On 1 June 2016, the delegate decided to refuse the applicant’s waiver request. In the delegate’s reasons, the delegate –
a)observed that to meet the requirements of s 41(2A) of the Act the applicant would need to meet each of the requirements of reg 2.05(4) of the regulations;
b)found that given Mr Nguyen’s medical problems dated back as far as 2001 the circumstances of his injury occurred prior to the grant of the visa and therefore the applicant could not rely on his medical conditions for the purposes of reg 2.05(4)(a);
c)found that given the applicant’s relationship with Mr Nguyen was a matter that was within her control she also could not rely on this factor for the purposes of reg 2.05(4)(a);
d)found that given the applicant’s relationship with Mr Nguyen’s daughter was a matter that was within her control she also could not rely on this factor for the purposes of reg 2.05(4)(a);
e)accepted that the inability of Mr Nguyen to care for himself was a compassionate consideration but found that this did not constitute a compelling consideration for the purposes of reg 2.05(4)(a) as the circumstances were not sufficiently forceful to warrant a waiver of the condition.
It is useful to set out s 41 and reg 2.05. They were in the following terms –
[Migration Act]
41 Conditions on visas
(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 ... while he or she remains in Australia; ...
(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).
[Migration Regulations]
2.05 Conditions applicable to visas
(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 ...
The applicant relied on a collection of factors that she said supported her contention that the waiver ought to have been granted. They were as follows –
a)the applicant had married Mr Nguyen;
b)the applicant had become the step‑mother of Sandra Nguyen, a girl whose mother had abandoned her at a young age;
c)the applicant had developed a strong, nurturing, parental relationship with Sandra who had developed into a teenager and that Sandra had become dependent on the applicant for her well‑being;
d)Mr Nguyen had pre‑existing medical conditions and developed a physical and emotional dependence on the applicant;
e)Mr Nguyen had increasingly suffered pain despite his back surgery;
f)Mr Nguyen’s medical conditions meant that the applicant had been increasingly providing essential care for him;
g)the applicant and Mr Nguyen had purchased a house together and Mr Nguyen, being unemployed, could not afford to travel to Vietnam if the applicant had to return there; and
h)the family dynamics were such that if the applicant were to return to Vietnam it would impact on the emotional state of the applicant’s husband and impact on the applicant’s step‑daughter’s health and well‑being.
The issue that the delegate had to consider was the development of the circumstances rather than the date that the circumstances came into existence.
The applicant said the delegate erred by failing to consider the development of the applicant’s circumstances since the visa grant. Instead, the delegate considered that the husband’s back injury “occurred” prior to the visa grant.
Further, the applicant said the delegate erred by finding that the circumstances were within the applicant’s control because she voluntarily entered relationships with her husband and step‑daughter. The applicant said the delegate ignored the aspects of the circumstances that were beyond the applicant’s control, namely –
a)the absence of the step‑daughter’s biological mother from the step‑daughter’s life;
b)the step‑daughter’s age and gender, which made her particularly dependent on the applicant;
c)the applicant’s husband’s medical problems;
d)the increase in the applicant’s husband’s pain and suffering; and
e)the family dynamics, which meant that if the applicant were to return to Vietnam it would cause a great impact on the emotional state of the applicant’s husband and have a great impact on the applicant’s step‑daughter’s well‑being.
The applicant contended that it was immaterial whether or not the husband’s medical conditions were circumstances that occurred prior to the visa grant because the husband’s dependence on the applicant was a circumstance that had developed since the grant.
The applicant also argued that it was immaterial whether or not the husband’s medical conditions were circumstances that occurred prior to the visa grant because the husband’s increasing pain and suffering was a circumstance that has developed since the grant.
Further, the applicant said that it was immaterial whether or not Sandra’s biological mother had abandoned Sandra prior to the visa grant because the development of the step‑parent/child bond since the grant was a circumstance to be considered.
The step‑daughter’s age and gender were circumstances beyond the applicant’s control.
The applicant said that the wording of the delegate’s decision[1] under the heading “circumstances have occurred since the grant of your visa” showed that the delegate failed to consider the development of her husband’s medical conditions since the visa grant and instead argued that the delegate limited his consideration to the question when the medical condition started. The applicant also said the delegate focussed on the wrong question of when the date or event occurred rather than the correct question of how the circumstance had developed.
[1] Court book (filed on 9 December 2016) 113
The applicant argued that the wording of the delegate’s decision under the heading “circumstances are outside of your control”[2] and under the heading “circumstances are both compelling and compassionate”[3] showed that the delegate did not consider that one of the compelling circumstances was that the step‑daughter’s biological mother was absent from the step‑daughter’s life and other relevant circumstances were the step‑daughter’s age, gender and dependence on the applicant.
[2] Ibid
[3] Ibid 13‑114
Ms Costello said that not only did the delegate ask the wrong question but the delegate failed to consider the claim that her husband’s dependence on her had increased and that his pain and suffering had increased as set out in the letter from the applicant's migration agent.[4]
[4] Ibid 2
Ms Costello said the delegate failed to consider the considerable length of the couple’s relationship, being five years.
The grounds of review were separate and seemingly ordered yet Ms Costello told me on the hearing of this application that the grounds seemed “scattergun”. Ms Costello agreed to synthesise the grounds into a few. I gave her leave to do that with the minister having leave to make any further submissions in respect of anything arising out of the amended grounds which invitation the minister took up.
With leave, the applicant filed an amended application on 1 March 2019. The minister provided written submissions in response to the amended application dated 5 March 2019. In the applicant’s amended application, the seven paragraphs of the original application were deleted and they were replaced by two grounds, one of which (the second) was new. The grounds of the amended application were as follows –
1. The delegate misconstrued reg 2.05(4) by considering whether compelling or compassionate circumstances had occurred since the visa grant, rather than whether the circumstances had developed since the visa grant.
Particulars
The compelling and compassionate circumstances that had developed since the visa grant were:
a. The Applicant’s marriage to Mr Nguyen.
b. That the Applicant had become the step-mother of Sandra Nguyen, a girl whose mother had abandoned her at a young age.
c. The development of a strong, nurturing, parental relationship between the applicant and her step-daughter Sandra, in which Sandra - who has developed into a teenager – had become dependent on the Applicant for her well-being.
d. Her husband, who had pre‑existing medical conditions, had developed physical and emotional dependence on her.
e. Her husband’s physical injury had developed in that he had been “increasingly” suffering pain despite his back surgery.
f Her husband’s medical conditions meant that the Applicant had been “increasingly” providing essential care for him.
g. The Applicant and her husband had purchased a house together and her husband, being unemployed, could not afford to travel to Vietnam if the Applicant had to return there.
h. The family dynamics which meant that if the Applicant were to return to Vietnam, it would cause a great impact on the emotional state of her husband and have a great impact on Sandra’s health and well-being.
2. The delegate erred by failing to consider compelling and compassionate circumstances of the step-parent/child relationship that were beyond the control of the applicant, including the age and gender of her step-daughter Sandra; the fact that Sandra’s biological mother had abandoned her as a young child; the development of her husband and Sandra's dependence on the applicant in light of her husband's physical and mental afflictions; and the family’s financial position. Instead, the delegate merely considered whether getting married and becoming a step parent were beyond the applicant's control.
Ground one
In the particulars subjoined to paragraph one of the new grounds the applicant identified the factors that were said to represent at a factual level the circumstances that had developed since the visa was granted. The applicant said that the delegate erroneously construed reg 2.05(4) as involving a consideration of whether compelling and compassionate circumstances had occurred since the grant of the visa. In other words, the point in issue was whether, since the visa grant, those compelling and compassionate circumstances had “occurred” or whether they had “developed”.
The answer to that question lay in the decided cases that have considered reg 2.05. The decision of the Honourable Justice Kenny in Terera v Minister for Immigration and Multicultural and Indigenous Affairs[5] seemed to me to be the most considered application of the relevant legal principles. On any view, her Honour’s decision is a scholarly dissertation on the subject. The relevant portion of her Honour’s judgment is as follows –
… 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.
[5] (2003) 135 FCR 335
Her Honour addressed whether circumstances had “developed” at paragraph 29 of her Honour’s reasons. In that case, Kenny J held that the delegate fell into jurisdictional error.
The circumstances that had developed since the visa grant in this case needed to have been circumstances over which the visa holder had no control and that those circumstances resulted in a major change to the visa holder’s circumstances. On 15 May 2018, Derrington J held in SZRSX v Minister for Immigration and Border Protection[6] that the delegate erred in the delegate’s construction of the relevant criteria. Derrington J did not refer to the decision of Kenny J in Terera although it seemed to me that there was no inconsistency in the logic of both decisions.
[6] [2018] FCA 810
It seemed to me that the delegate in this case did not address the correct criteria in the delegate’s application of reg 2.05(4) to the facts of this case. In my view, and applying reasoning consistent with that in Terera and SZRSX, the matters identified in the particulars subjoined to the amended ground one in this case should have led the delegate to being satisfied that a waiver was appropriate. In my view, ground 1 disclosed the existence of jurisdictional error and that the delegate’s decision was therefore vitiated by reason of that jurisdictional error. Constitutional writs should be issued.
Ground 2
Under this ground, the delegate erred by failing to consider compelling and compassionate circumstances of the step‑parent and child relationship that were beyond the control of the applicant.
The minister said the applicant’s analysis of the matter broke down once it was recognised that the applicant decided to enter into a relationship with Mr Nguyen. That was because the applicant’s decision was in fact within her control. But that was not the gravamen of ground two. The ground addressed the circumstances of the step‑parent/child relationship that were beyond the applicant’s control. The minister’s opposition under this ground focussed on an anterior position, namely, the applicant’s decision to enter into a relationship with Mr Nguyen. The fact that the applicant made that decision said nothing of the consequential matters that were beyond the applicant’s control. I do not agree with the minister’s construction of the family dynamics for the purpose of ground two. In my opinion, the delegate erred in the manner identified in ground two.
Conclusion
The applicant is entitled to the writs she seeks. The minister must pay the applicant’s costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 8 March 2019
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