Sleiman v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 741
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sleiman v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 741
File number(s): SYG 1514 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 18 August 2023 Catchwords: MIGRATION - Visa – condition 8503 no further stay – request for waiver - review of delegate’s decision to refuse waiver – compelling and compassionate circumstances - insufficient evidence before delegate – application dismissed. Legislation: Migration Act 1958 (Cth) s 41
Migration Regulations1994 (Cth)
Cases cited: Boutros v Minister for Immigration and Border Protection [2019] FCA 851
BVD17 v Minister for Immigration and Border protection [2019] HCA 34; (2019) 268 CLR 29
Vanstone, Re; Ex Parte Auva’a (2003) 134 FCR 379
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 8 June 2023 Counsel for the Applicant: Mr D Godwin Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 1514 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TALEB DIAB SLEIMAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
18 august 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 GOODCHILD
These proceedings concern an application for judicial review of a decision of a delegate of the respondent (Minister) to refuse an application for a waiver of condition 8503 of “no further stay”, to a visa the applicant was granted.
The applicant is a citizen of Lebanon.
On 7 January 2013, the applicant was granted a sponsored family visa. That visa permitted the applicant to remain in Australia for a period of 45 days.
By the operation of cl 679.611 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”), that visa was subject to conditions which included cl 8503 of Schedule 8, which provided:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
On 23 May 2022 the applicant made a request to the Minister to waive condition 8503 to permit him to make an application for a medical treatment visa while in Australia.
That application contained the following information:
A. Give details of the major change in circumstances that has developed since the grant of your visa.
I have been Australia since 4/3/2013 then I applied for refugee application which was refused. When I came to Australia I was healthy and fit and I have had no medical issues but since 2018 my health deteriorated and I am now suffering serious medical condition as it can be seen from medical or issued by Dr Wafik Latif.
B. Give reasons why you had no control over the circumstances.
Of course I never wish to be sick nobody expects illness especially in my situation. My circumstances are contrary to my wishes and beyond my control.
C. Give details of why your circumstances are compassionate and compelling.
The situation in Lebanon and is extremely bad. There is corruption there is economic crisis and I am unable to receive medical treatment due to the lack of medical supplies and electricity. Even lack of medication. For these reasons I wish to apply for medical treatment visa due to the seriousness of my condition.
(As per original)
In support of his request, the applicant provided an “Evidence of intended medical treatment (includes consultation) form” completed by Dr Latif on 6 May 2022. Dr Latif provided a medical certificate dated 29 April 2022 stating the following:
Suffering from: Severe osteoarthritis affecting cervical and lumbosacral spine. He is also suffering from anxiety and depression. He would not be able afford treatment and medication if he goes back to Lebanon.
On 14 September 2022, the delegate found that the circumstances for waiver of the no further stay condition 8503 were not met by the applicant and the request for the waiver was refused. The delegate found that the applicant had not provided sufficient evidence to support his claim of wanting to stay in Australia.
The applicant contends that the delegate applied the incorrect test by looking to circumstances that prevented the applicant from leaving Australia, as opposed to determining whether circumstances faced by the applicant were compassionate and compelling.
For the reasons set out below, the applicant’s application for judicial review must be dismissed.
RELEVANT LEGISLATION
As at 7 January 2013, s 41 of the Migration Act 1958 (Cth) (“the Act”) provided as follows:
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(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 (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(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).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
For the purposes of s 41(2A) above, condition 8503 is a condition that may be waived.
Condition 8503 contained in Schedule 8 of the Regulations as stated earlier provides:
The holder will not, after entering Australia, be entitled to a grant of a substantive visa, other than a protection visa, while the holder remains in Australia.
Wherever this condition is imposed on a visa, its legal effect is to remove, after entry to Australia, the visa holder’s ability to make a valid application for a further substantive visa (temporary or permanent, other than a protection visa or a specifically prescribed visa).
Regulation 2.05 of the Regulations sets out the criteria that must be met before the power to waive a condition to which a visa is subject to is enlivened. As at 23 May 2022, reg 2.05(4) relevantly provides:
2.05 Conditions applicable to visas
(1) For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).
Note: Regulation 2.40A prescribes conditions in relation to special purpose visas taken to have been granted to airline positioning crew members and airline crew members.
…
(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
…
(c)if the person asks the Minister to waive the condition, the request is in writing.
All of the criteria specified in sub-reg (4) must be met before the Minister has power to waive the condition: Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [19].
THE DELEGATE’S DECISION
The delegate was not satisfied that the applicant had presented sufficient evidence that supports his claims of a medical condition. Nor was the delegate satisfied that there was sufficient evidence that demonstrated the applicant’s medical condition had deteriorated since he last held a substantive visa. The delegate accepted that the Lebanese economic crisis had led to shortages of food, medicine, fuel and gas, power blackouts and that those circumstances commenced after the grant of the applicant’s visa and were evolving and outside the applicant’s control. However, the delegate found that the applicant had not presented sufficient evidence that demonstrated how the economic crisis directly prevented the applicant from departing Australia and was not satisfied that the applicant had provided sufficient evidence that demonstrated that the applicant had forcefully compelling and compassionate circumstances for the waiver of the condition.
THE APPLICATION
By the Amended Application filed 31 May 2023, the applicant propounds the following ground:
1.The delegate erred in their construction and application of the applicable law
Particulars
The applicable law required the delegate to determine whether circumstances faced by the applicant were compassionate and compelling however the delegate imposed a further requirement that the circumstances would prevent the client’s departure from Australia.
(As per original)
The applicant submitted that whether the circumstances prevent the person’s departure from Australia is not a matter which the statutory question requires the applicant to establish. The applicant contends that the delegate’s reasons indicate that the delegate considered that this matter (i.e whether the circumstances prevent the person’s departure from Australia) was a necessary part of the requirement in order for the condition to be waived.
CONSIDERATION
Under reg 2.05(4)(a), for a waiver to be granted, the relevant circumstances must have developed since the person was granted the visa and must be both compelling and compassionate.
Under reg 2.05(4)(a)(i), for a waiver to be granted, the circumstances must be beyond the person’s control.
Under reg 2.05(4)(c), the waiver request is to be in writing.
Self-evidently, each waiver request must be assessed on its merits, on the basis of the material before or available to the delegate.
The question for the delegate was whether, since the time the visa was granted, compelling and compassionate circumstances of the kind referred to in reg 2.05(4) had developed.
The ‘major change in circumstances’ identified by the applicant in his no further stay waiver request was his health. He stated in the request form that his health had deteriorated and he was now suffering a serious medical condition. He provided one medical certificate containing two lines as evidence concerning his current ailments of “severe osteoarthritis affecting cervical and lumbosacral spine” and “anxiety and depression”. The doctor provided an unsupported opinion that the applicant would not be able to afford treatment medication if he goes back to Lebanon.
The circumstances upon which the applicant sought the delegate to have regard to, to determine a ‘major change’, were those concerning his health. Presumably he was identifying that his health had changed since a particular point in time compared to the time at which he was making the application for the waiver. The applicant said that his health had deteriorated and he was suffering a serious medical condition referring then to the report issued by his doctor. The medical report from his doctor provide in very summary form a description of a number of conditions. The report did not identify for what period of time the doctor had been treating the applicant, his conditions were not described as serious, no detail was provided as to the impact of his medical conditions upon his circumstances, no history was provided regarding the history of his various conditions.
A decision to be made can only be made on the information available. The applicant failed at the first hurdle – he did not provide sufficient information to support his claim.
The delegate was not satisfied that the applicant presented sufficient evidence that supported his claim that he suffered from a medical condition, nor was there evidence presented that demonstrated that his medical condition had deteriorated since he last held a substantive visa. The unsurprising result was the delegate was not satisfied that the applicant’s current medical conditions impacted on his ability to depart Australia.
For the purposes of considering why the circumstances where compassionate and compelling, the delegate properly had regard to the risks of returning to Lebanon, identifying the various impacts of the Lebanese economic crisis. The delegate again properly recognised that those circumstances in Lebanon had commenced after the grant of the applicant’s visa and were evolving and outside of the applicant’s control. But again, the applicant failed at the evidentiary hurdle because the delegate found that there was not sufficient evidence to demonstrate how this economic crisis would directly impact upon the applicant. The delegate did use the phrase “demonstrate how the economic crisis will directly prevent the client from departing Australia”, but fairly read, the delegate is referring to the lack of evidence and not propounding a separate test.
The only way that the delegate would be able to properly assess compelling and compassionate circumstances to reach the requisite ‘satisfaction’, would be if sufficient evidence of those circumstances were available, in writing, for the delegate to undertake an assessment. Similarly, the only way a delegate would be able to properly assess a major change in a person circumstances would be if sufficient evidence of original circumstances and then any major change was available, in writing, for the delegate to undertake the assessment.
As was pointed out by Dowsett J in Vanstone, Re; Ex Parte Auva’a (2003) 134 FCR 379 considering reg 2.05(4) at [8]:
In subreg 2.05(4), the word “circumstances” is used with three different meanings. In the introductory part of the subregulation, the word is used to describe collectively the conditions which will enliven the first respondent’s power to waive a relevant condition. The word is then used in para 2.05(4)(a) to describe ‘compelling and compassionate’ factors which must have developed since the issue of the visa. In subpara 2.05(4)(a)(ii), the word is used to describe the whole of the relevant person’s position, presumably to the extent that it is relevant to the issue of a visa. The ‘compelling and compassionate circumstances’ must themselves result in a ‘major change’ to the person’s “overall” circumstances. This requirement seems to contemplate a comparison of the relevant person’s position prior to the issue of the visa with his or her position as a result of the ‘compelling and compassionate’ circumstances.
The onus is on the applicant to place sufficient evidence before the delegate to support his claim. The applicant did not do that.
The High Court in BVD17 v Minister for Immigration and Border protection [2019] HCA 34; (2019) 268 CLR 29 said at [38]:
As the decision in Plaintiff M47/2018 v Minister for Home Affairs [34] well enough illustrates…it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner[35]. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared [36].
[citations omitted]
I agree with the respondent’s submission that the finding by the delegate that he was not satisfied that the applicant’s medical conditions or the economic situation in Lebanon had impacted his ability to depart Australia was but one way of making the point that the circumstances that the applicant identified were not sufficiently compelling and compassionate such that they resulted in a major change to his circumstances which prevented (or made it very difficult for) him to return to Lebanon.
A fair reading of the delegate’s decision in this matter leads me to be comfortably satisfied that, having regard to the material before the delegate, the applicant did not present sufficient evidence that supported his claim of a medical condition or of the deterioration of a medical condition since he last held a substantive visa. That was the basis upon which the delegate determined that he was not satisfied that the applicant demonstrated forcefully compelling or compassionate circumstances for the waiver.
Accordingly, I find the delegate did not fall into jurisdictional error.
The application is dismissed.
38 I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.
Associate:
Dated: 18 August 2023
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