Ramos v Minister for Immigration
[2017] FCCA 2412
•3 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMOS v MINISTER FOR IMMIGRATION | [2017] FCCA 2412 |
| Catchwords: MIGRATION – Review of decision of a delegate of the Minister refusing to waive no further stay condition on a visa – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.41, 351, 417 |
| Cases cited: Anani v Minister for Immigration [2013] FCCA 1140 Cheema v Minister for Immigration [2011] FCA 121 Dogolau v Minister for Immigration [2012] FMCA 529 Minister for Immigration v Hossain [2017] FCAFC 82 Minister for Immigration v SZJSS (2010) 243 CLR 164 SZGIZ v Minister for Immigration [2013] FCAFC 71 |
| Applicant: | ROSARIO YDEO RAMOS |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1837 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2017 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Mr A Keevers of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $3,900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1837 of 2016
| ROSARIO YDEO RAMOS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Ms Ramos, seeks judicial review of a decision of the delegate of the Minister (the delegate) made on 20 June 2016. The delegate refused a request by Ms Ramos for a waiver of condition 8503 (no further stay) attached to her last substantive visa. The Court has jurisdiction to review the delegate’s decision because the decision was not subject to any merits review by the Administrative Appeals Tribunal. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 26 September 2017.
Ms Ramos, a citizen of the Philippines, entered Australia on 21 December 2004 as the holder of the visitor visa. Following a period of unlawfulness, she applied for a protection visa, which was refused by a delegate. Ms Ramos sought ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (Migration Act), but subsequently withdrew the request.
The visitor visa was subject to condition 8503, known as the “No Further Stay Condition,” which relevantly provided that:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the subject remains in Australia.
Pursuant to s.41(2A) of the Migration Act, the Minister or his delegate may, in prescribed circumstances and by writing, waive condition 8503. The “prescribed circumstances” referred to in s.41(2A) of the Migration Act are set out at regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) as follows:
(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; 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.”
On 7 June 2016, Ms Ramos applied to the Minister for a waiver of condition 8503.[1] The circumstances of her request may be summarised as follows:[2]
a)Ms Ramos was living with her partner (Mr Paul De Nardi) and she wished to apply for a partner visa;
b)Mr De Nardi suffered from depression and general poor health;
c)Mr De Nardi had to attend hospital and she feared he would have a heart attack; and
d)Ms Ramos feared for her life if she were to return to the Philippines because of her abusive ex-husband.
[1] Court Book (CB) 1–2
[2] CB 2, 6–9
Delegate’s decision
On 20 June 2016, the delegate refused Ms Ramos’ request to waive condition 8503 on the basis that Ms Ramos’ circumstances did not meet the criteria set out in regulation 2.05(4).[3] The delegate found that entering into a relationship and making the decision to cohabit were not outside Ms Ramos’ control. Therefore, the delegate found that Ms Ramos’ relationship with Mr De Nardi did not satisfy the requirements of regulation 2.05(4) for the waiver of condition 8503.[4]
[3] CB 45 – 50
[4] CB 49
Further, the delegate found that Ms Ramos’ abusive relationship with her ex-husband existed prior to the grant of the visitor visa. The delegate was not satisfied that Ms Ramos’ fears of returning to the Philippines had developed since the grant of the visa, and therefore, found that these circumstances did not satisfy the requirements of regulation 2.05(4).[5]
[5] CB 49
The delegate acknowledged Ms Ramos’ claim that Mr De Nardi suffered from depression and poor physical health and that Ms Ramos had brought happiness to his life. However, the delegate noted that the information presented did not indicate that Mr De Nardi’s mental state was such that it required a high level of care. The delegate further acknowledged that Ms Ramos’ “temporary” separation might cause some emotional and financial stress to Mr De Nardi, but noting that it would only be “temporary”, the delegate was not satisfied that the circumstances were sufficiently forceful to waive condition 8503.[6]
[6] CB 50
The present proceedings
These proceedings began with a show cause application filed on 15 July 2016. There are two grounds in the application:
1. The Delegate of the Minister namely Darrin failed to understand and interpret and apply the law as he failed to recognise the meaning of compelling.
2. The Delegate failed to waive 8503 condition and ignored that the circumstances not only compassionate but compelling as my partner will be prejudiced by my departure and while he admitted the financial and emotional stress and that the separation may only be temporary such conclusion is wrong because any temporary separation would cause harm as my partner and I should not be and cannot be separated, even temporarily, and the Delegate failed to ask himself the question what will happen to my partner if I am forced to return to the Philippines and what will happen to me in the Philippines where there will be harm which will affect my partner and I in all aspects.
The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 6 October 2016.
Both the Minister and Ms Ramos prepared submissions prior to the hearing of the matter today and made oral submissions today. In that, Ms Ramos was supported by Mr De Nardi.
Ms Ramos has a number of concerns about the delegate’s decision. There is no substance to the first ground of review. I am persuaded that the delegate understood the task that he had to perform and correctly stated the relevant test. In that, I agree with the Minister’s submissions. The contention that the delegate misinterpreted the law with respect to the definition of “compelling” is unsustainable. The delegate correctly set out the relevant legislative framework, and in particular regulation 2.05(4) of the Regulations, and the meaning of “compelling”.[7] The delegate accepted that Ms Ramos’ wish to remain in Australia with Mr De Nardi was a compassionate circumstance.[8] However, using the ordinary meaning of the word “compelling”, the delegate did not consider that this factor was sufficiently forceful to warrant a waiver of the condition.[9] Further, in the absence of information indicating that Mr De Nardi required care that was of a high level or ongoing, the delegate was not satisfied that this factor amounted to compelling or compassionate circumstances to justify the waiver. The delegate properly applied the law in considering whether Ms Ramos’ circumstances were compelling and compassionate, and made findings that were open. Ground 1 is, in substance, an expression of Ms Ramos’ “emphatic disagreement”[10] with the delegate’s findings and reveals no jurisdictional error.
[7] CB 49
[8] CB 49
[9] CB 50
[10] Minister for Immigration v SZJSS (2010) 243 CLR 164, 165.
In any event, the requirements of regulation 2.05(4) are cumulative, such that Ms Ramos’ circumstances had to meet all of the requirements of regulation 2.05(4).[11] Putting to one side the delegate’s findings with respect to Ms Ramos’ circumstances being compassionate and compelling, the delegate also found that her circumstances were not beyond her control. Ms Ramos has not (except in one respect in her written submissions) challenged these findings, which were fatal to her request for a waiver. It follows that even if Ground 1 were made out, the delegate retained jurisdiction.[12]
[11] See Cheema v Minister for Immigration [2011] FCA 121 at [16]-[17] per Flick J; see also Anani v Minister for Immigration [2013] FCCA 1140 at [45].
[12] Minister for Immigration v Hossain [2017] FCAFC 82 at [30]
Ms Ramos’ submissions were directed at expanding upon what is said in Ground 2. In part, perhaps in substantial part, her submissions are an appeal to merits review. She expresses strenuous disagreement with the delegate’s decision and the reasoning supporting that decision. She asserts that the conclusion reached by the delegate is unreasonable, but in my view, the conclusion reached by the delegate was open to him on the material before him.
Ms Ramos takes particular exception to the delegate’s proposition that if Ms Ramos is required to return to the Philippines, her separation from Mr De Nardi might be only temporary, which bears upon the degree of emotional and financial stress she will experience. There is a question whether there was or needed to be anything supporting that proposition. At first blush, the delegate’s words might suggest a factual conclusion and there might be a question of whether there was anything supporting that factual conclusion. The delegate’s reasons, however, need to be considered in their context.
Ms Ramos was seeking the waiver of the no further stay condition in support of a partner visa application based upon her relationship with Mr De Nardi. The delegate was entitled to assume that if Ms Ramos returned to the Philippines, she would continue with that partner visa application uninhibited by the no further stay condition. It logically follows that it cannot be assumed that the separation of Ms Ramos from Mr De Nardi which would follow Ms Ramos’ return to the Philippines would be permanent or indefinite. It is in that context that the words of the delegate need to be understood and I see no legal error in the delegate’s approach.
Ms Ramos, in her submissions, raises the prospect of an allegation of pre-judgement or bias, but I see nothing in the available material to support that proposition.
Ms Ramos contends that the delegate was in error in finding that her decision to form a relationship with and cohabit with Mr De Nardi was not something outside her control. In that regard, I find that the delegate was entitled to conclude that a personal relationship voluntarily entered into is not something outside the individual’s control.[13] Ms Ramos also refers to her relationship with her former husband, which she states was abusive. That is touched on in Ms Ramos’ application for a waiver of the condition in answer to question 15 on the application form.[14] There, Ms Ramos says:
My life in the Philippines was full of hardships, as my ex-husband often beat me, and particularly when drunk threatened to kill me. He’s a very strong man, and I am a only a small woman.
[13] See generally Dogolau v Minister for Immigration [2012] FMCA 529 at [29]-[36] and Farhat v Minister for Immigration [2017] FCCA 347 at [26]
[14] CB 2
Ms Ramos goes on to say that she feared for her life, she was often injured badly and was forced to leave the Philippines as her ex-husband became increasingly violent towards her. Ms Ramos now contends that her circumstances in the Philippines would be even more risky given that her ex-husband is aware of her new relationship with Mr De Nardi. That proposition, however, was not put to the delegate. Ms Ramos might have usefully have done so in the context of updating the information available from the protection visa application she made, which was concluded in around 2012.
Although that application was determined, it would appear, before the decision in SZGIZ v Minister for Immigration,[15] it appears that subsequent legislative amendments would not permit Ms Ramos to make a complementary protection application. She might, however, have usefully supported her cause by making submissions to the delegate along the lines of submissions that might have been made in support of a complementary protection application. That was not done. It is something that Ms Ramos might usefully consider doing should she seek to engage the Minister’s power of intervention under s.351 of the Migration Act.
[15] [2013] FCAFC 71
I otherwise agree with the Minister’s submissions in relation to Ground 2.
The contention in this ground is that in considering whether compassionate and compelling circumstances existed for the waiver, the delegate failed to consider the harm that would be suffered by Mr De Nardi, and by Ms Ramos herself, should she return to the Philippines. This ground must fail at a factual level given the delegate’s explicit consideration of these matters. In circumstances where there was no evidence before the delegate that Mr De Nardi would suffer mental and physical harm in the absence of Ms Ramos, the delegate found that the situation did not amount to a compassionate or compelling circumstance. Further, the delegate considered that whilst a period of separation may cause financial or emotional stress to Ms Ramos and Mr De Nardi, any separation would only be temporary and was not sufficiently forceful to warrant a waiver of condition 8503.[16] These findings were open to the delegate on the evidence before him and for the reasons he gave.
[16] CB 50
The delegate did not make a specific finding on whether Ms Ramos’ fear of harm in the Philippines amounted to a compelling and compassionate circumstance. However, in circumstances where the delegate found (on the basis of the information before him) that Ms Ramos’ fear of harm from her ex-husband had not developed since the grant of the visa, the delegate was not required to make a finding on whether Ms Ramos’ claimed fear constituted a compassionate or compelling circumstance.
I conclude that Ms Ramos has not been able to establish that the decision of the delegate is affected by any jurisdictional error. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,900. That is significantly below the amount prescribed in the Court scale. Mr De Nardi enquired whether payments might be made by instalments, which would be a matter for the Minister’s Department to consider.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $3,900.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 4 October 2017
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