Perez v Minister for Immigration
[2007] FMCA 1581
•25 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PEREZ v MINISTER FOR IMMIGRATION | [2007] FMCA 1581 |
| MIGRATION – Application for judicial review – refusal by delegate to waive applicant’s visa condition – jurisdictional error alleged. |
| Migration Regulations 1994, reg.2.05(4) |
| Applicant: | SHERRY ROSE PEREZ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 178 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 September 2007 |
| Date of last submission: | 12 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 25 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Hone |
| Solicitor for the Applicant: | Hymans Solicitors |
| Counsel for the Respondent: | Mr R. Knowles |
| Solicitor for the Respondent: | DLA Phillips Fox Lawyers |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondent's costs, fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 178 of 2007
| SHERRY ROSE PEREZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
On 25 December 2006 Sherry Rose Perez, the Applicant, arrived in Australia to see her sister and her sister's husband and their children. She did so, on a visa which was a one‑month visa which could not be extended.
On 16 January 2007 a serious incident of domestic violence took place between the sister and her husband, as a result of which on
21 January 2007 Ms Perez requested waiver of the condition that she not overstay after the one-month ran out.
In a decision constituted by a letter to Ms Perez dated 25 January 2007 a delegate of the Respondent refused to waive the condition because he did not believe that there had been a major change of a compelling or compassionate nature beyond the control of Ms Perez that had arisen since the time of the visa grant.
The matter before the Court is whether or not the delegate's decision was affected by jurisdictional error. The Applicant's amended application filed on 9 March 2007 raises two grounds, but ground 2 has been expressly abandoned before me. Ground 1 asserts jurisdictional error and the particulars expressed in support of that ground are not really the basis upon which the matter has been pressed before me. In the end, it is a short point, as both counsel conceded.
In the delegate's decision, CB 16 to 17, the delegate first set out the relevant subregulation, reg.2.05(4) of the Migration Regulations 1994, which requires relevantly that:
“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 delegate went on to say, correctly, that:
“As you can see from this, in order for a waiver to be granted the law requires that a major change of a compelling and compassionate nature and which was beyond the person's control must have arisen since the time of the visa grant.”
The delegate went on to assert that Ms Perez's request was based on her sister's need for support, particularly with childminding, following some problems in her marital relationship. Critically, as counsel for the Applicant put it, the decision went on:
“While I accept that she has difficulty with her husband and may well appreciate your support, there is no evidence available to me that your presence is essential to her wellbeing. I accept that she may have some work commitments and that it is very difficult to find child care places at present, but these are primarily financial and family lifestyle considerations, so I do not think that they could be said to amount to "compelling and compassionate" circumstances, as the law requires for waiver purposes. Therefore, after considering all of the information before me, my decision is that condition 8503 cannot be waived in this case.”
Counsel for the Applicant submitted that the use of the phrase "There is no evidence available to me that your presence is essential to her wellbeing" indicated that the delegate had formulated and applied a wrong test. It was therefore put that the decision was infected by jurisdictional error.
Counsel for the Respondent, on the other hand, submitted that that remark was merely one passage in the paragraph in which the delegate addressed the test that he had already accurately set out. Counsel for the Respondent also drew my attention to authorities which caution against an overly minute examination of the decision‑maker's reasons for decision; particularly in a case like this where there was in fact no obligation on the delegate to give reasons at all.
Counsel for the Respondent also submitted that it is not a matter as to whether this Court would come to the same conclusion as the delegate. He submitted that the delegate is entitled in effect to make a wrong decision but would do so within jurisdiction.
In my view, the submissions of the Respondent are correct. Taking the delegate's reasons for decision, short as they were, as a whole, it is clear that the delegate was well aware of the task that he was required to undertake and did so according to the terms prescribed in the legislation. For that reason, the application must be dismissed.
It should be noted that there is a further difficulty with the application before the Court. In her original application for further stay as a visitor at CB 7 the Applicant indicated that she wished to stay until
25 July 2007; that was the extension period requested by way of waiver. That period itself has now expired; thus, even if the decision of the delegate was wrong, in the sense that it was infected by jurisdictional error, the remedy that the Applicant sought has in fact been overtaken by events and there is no useful purpose in any event in remitting the matter to the department to be heard by another delegate.
Before me, counsel for the Applicant indicated that he was not able to indicate any specific time that the Applicant would now be seeking, by way of extension to her visitor's visa through the waiver that she would ultimately be seeking before the delegate. In my view, that position, while quite understandable, only goes to show the futility of the application. In substance, the Applicant is seeking an open‑ended extension of her visa. It would not, in my opinion, be appropriate to make an order that has the effect of facilitating that relief.
For all of these reasons, the application must be dismissed and the Applicant must pay the Respondent's costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 25 September 2007
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