Snochowska v Minister for Immigration
[2020] FCCA 1218
•18 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SNOCHOWSKA v MINISTER FOR IMMIGRATION | [2020] FCCA 1218 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal to waive no further stay visa condition – whether the delegate properly considered the matters advanced by the applicant, or based the decision on an erroneous assumption or failed to accurately characterise the claim considered – no jurisdictional error – case in any event rendered futile by changed circumstances after the delegate’s decision. |
| Legislation: Migration Act 1958 (Cth), s.41. Migration Regulations 1994 (Cth) |
| Cases cited: Kishore v Minister for Immigration (2002) 117 FCR 147 |
| Applicant: | KRYSTYNA SNOCHOWSKA |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3376 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2020 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Mr B. Kaplan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the respondent is amened to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed 4 December 2018 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3376 of 2018
| KRYSTYNA SNOCHOWSKA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Background
The applicant, Ms Snochowska, seeks judicial review of a decision of a delegate of the Minister (delegate). The decision was made on 12 November 2018. The delegate refused an application by Ms Snochowska for waiver of condition 8503 on her visa, which prevented her from applying for any other substantive visa in Australia.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 11 May 2020.
Ms Snochowska is a national of Poland.
On 6 July 2000, Ms Snochowska was granted a visitor visa.[1] A condition to which that visa was subject was that she would not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while she remained in Australia.[2]
[1] Court Book (CB) 2 [1]
[2] Migration Regulations 1994 (Cth) (Migration Regulations), Sch 8, cl 8503 (condition 8503)
On 27 September 2018, pursuant to s.41(2A) of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.05(4) of the Migration Regulations, Ms Snochowska requested that the Minister waive condition 8503 so as to permit her to make an application for, and be granted, a partner visa while remaining in Australia.[3] The basis for the application was that Ms Snochowska wished to remain in Australia to support her de-facto partner, Domenico Coluccio.
[3] CB 1-23
On 12 November 2018, the delegate made a decision to refuse to waive condition 8503.[4]
[4] CB 30-32
Legislation and principles
At all material times, s.41 of the Migration Act relevantly provided as follows:
Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about 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 …
…
(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 …
Regulation 2.05 was made in part for the purposes of s.41 of the Migration Act. It relevantly provided:
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).
…
(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.
…
Condition 8503 provided that “[t]he 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.”
The following principles may be discerned from the cases that have considered these provisions.
First, regulation 2.05(4) lists the criteria that a person requesting waiver of a condition of the kind described in s.41(2)(a) of the Migration Act must satisfy. Only once those criteria are satisfied is the Minister’s discretionary power in s.41(2A) of the Migration Act enlivened.
Secondly, unlike regulation 2.05(4)(b), which expressly turns on the Minister forming a particular state of satisfaction (and gives rise to subjective considerations), regulation 2.05(4)(a) is silent in this regard. In Kishore v Minister for Immigration,[5] Justice Emmett appeared to reason that the presence of the words “compelling and compassionate circumstances” suggested that the criteria described in regulation 2.05(4)(a) (whether there had developed compelling and compassionate circumstances over which the applicant had no control) were not objective matters capable of judicial review and turned on the formation by the Minister of a certain state of satisfaction. There is support for this view in the judgment of Justice Kenny in Terera v Minister for Immigration.[6]
[5] (2002) 117 FCR 147 at 157 [39]
[6] (2013) 135 FCR 335 at 342 [22]
Thirdly, answering the question posed by regulation 2.05(4)(a) requires the Minister to “understand and address” the case sought to be made by the applicant in support of his or her waiver request.
Fourthly, circumstances will be “compelling and compassionate” if they are “far-reaching and most heavily persuasive”, are “sufficiently forceful to lead the decision-maker to waive the … condition” or “forc[e] or dr[i]ve the delegate irresistibly to be satisfied that [the] condition … should be waived.” It is important, however, not to place a gloss on the language used in the provision. Whether a 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.”
Fifthly, the Minister is not under an obligation to give reasons for making a decision under regulation 2.05(4). If the Minister nonetheless does so, a court on judicial review can draw inferences from those reasons. However, absent a statutory duty to give reasons, it will be “difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the [Minister].”
Applicant’s claims and the delegate’s decision
The claims made by Ms Snochowska as to why condition 8503 should be waived appear in her waiver request form dated 26 September 2018,[7] her written submissions dated 27 September 2018,[8] her statutory declaration dated 23 August 2018[9] and the statutory declarations of her de-facto partner dated 30 August 2018.[10] They may be summarised as follows:
a)the “unique and compelling personal circumstance” of her partner;[11] and
b)the prospect that, if she were removed from Australia, her partner will be “exposed to very significant pressure from his children and their spouses to be placed into a retirement home”[12] and will suffer “significant physical and mental decline”.[13]
[7] CB 6-7
[8] CB 2-4
[9] CB 15-18
[10] CB 11-14
[11] CB 2 [2]
[12] CB 3 [10]; CB 7 [Q15]; CB 11 [7], CB 12 [10]
[13] CB 3 [9]; see also at CB 2 [5]
Although not under an obligation to do so, the delegate published reasons in a document entitled “Decision Record”.[14] In her reasons, the delegate made the following relevant findings:
a)Ms Snochowska and her partner “entered into a relationship and have registered their relationship” with the New South Wales Registry of Births Deaths and Marriages on 30 December 2017;
b)Ms Snochowska did not have “no control over these circumstances” as she and her partner “made the mutual decision to enter into and register their relationship”;
c)Ms Snochowska’s partner’s “family circumstances” were found to be “outside of [Ms Snochowska’s] control”;
d)the delegate “acknowledge[d]” that Ms Snochowska’s circumstances were “compassionate as she would like to remain in Australia to support her partner”;
e)the delegate “acknowledge[d] the statement regarding [Ms Snochowska]’s partner ‘the foundation of this application is that the consequence of the removal of Ms Snochowska and the duration of period of offshore processing will lead to significant physical and mental decline’”. She accepted that Ms Snochowska’s relationship with her partner “helped him overcome his grief and regain happiness”, but considered that it was “open to [him], as an Australian, to seek the support services available to assist him with any period of separation from [her]”. As to the social isolation that Ms Snochowska’s partner would experience if he were separated from her, the delegate said that this claim was “considered” but found that “the separation may only be temporary and that it [wa]s open [to] [her] and her partner to maintain contact through electronic means”. She concluded by saying that she was not satisfied that “these circumstances [were] sufficiently forceful” (that is to say, compelling) “to waive the condition”;
f)the delegate “acknowledge[d] the claims regarding [Ms Snochowska]’s partner’s children pressuring him to leave his home and enter a retirement home.” She said that, while she acknowledged that he was experiencing ongoing issues with his family, “as an Australian citizen he has access to a range of services to assist him with his legal rights should he require it.” These “ongoing issues of family dynamics and lack of support by [Ms Snochowska]’s partner’s family” were not considered to be compelling circumstances “for [her]”; and
g)the delegate “considered [Ms Snochowska]’s claims in their entirety” but did not find them to be “sufficiently forceful to waive the condition”.
[14] CB 30-32
These proceedings began with a show-cause application filed on 4 December 2018. There are three grounds in that application:
1. The Delegate failed to properly consider the following matters advanced by and on behalf of the Applicant in deciding whether to waive condition 8503.
Particulars
a. Primary reasons for refusal assert conclusions without any explanation as to the reasons for such finding. In terms of issues of family dynamics, this matter was dealt with by reference to the existence of “services”. A similar conclusion was drawn with respect to the issue of grief and social isolation.
b. Such conclusion does not evidence proper, genuine or realistic consideration.
2. The Decision maker formed an erroneous assumption that formed a central plant in decision making.
Particulars
a. Services existed to credibly preserve the rights of the partner so as to meaningfully deal with the consequences of social alienation and alleged bullying resulting in the detention of the Applicant and being locked out of his home.
b. Decision maker erroneously assumed contact could be maintained electronically.
c. Partner would not revert to mental and social deterioration as a result of his social isolation.
3. Jurisdictional error was made by the Delegate in failing to accurately characterize the complete nature of the claim.
Particulars
a. The Delegate characterized the Applicant’s case as being predicated only upon the claim that her partner would suffer distress on the basis of their separation only. No reference was made to the claim regarding mental deterioration, given the claims made.
(errors in original)
Ms Snochowska continues to rely upon that application, although she has little understanding of the grounds which were prepared by her then-solicitor, Adrian Joel. The application was accompanied by a short affidavit by Mr Joel, which I received.
I also have before me as evidence the Court Book filed on 12 February 2019.
Mr Joel filed a notice of withdrawal on 16 July 2019. Ms Snochowska attended today’s hearing in person by telephone with the assistance of an interpreter. I invited oral submissions from Ms Snochowska this morning. She told me of recent developments in her life. She has been, unfortunately, in conflict with her partner’s children, which has ultimately led to the breakdown of her relationship. Ms Snochowska now lives independently with a friend.
The conflict between Ms Snochowska and Mr Coluccio’s family has unfortunately resulted in separate proceedings in the Family Court. I am told that those proceedings involve an application for maintenance and that there will be a hearing on 26 May 2020.
The present circumstances lead me to the view that even if some error in the decision of the delegate could be identified, it would be futile to remit the case to the Minister’s delegate for fresh consideration. That is because the circumstances on which Ms Snochowska’s waiver request were based have fundamentally changed.
As I put to her, it would be advisable for her to speak to the Minister’s Department concerning an extension of her bridging visa for the duration of the legal proceedings in the Family Court. She should also consider whether there is any other basis upon which she seeks to remain in Australia.
In my view, there is no substance to the grounds of review advanced by Ms Snochowska. The Minister’s submissions deal with those grounds. I agree with those submissions.
Ground 1
Ground 1 asserts that the delegate failed to consider certain matters advanced by, or on behalf of, Mr Snochowska in deciding whether to waive condition 8503. Those matters were said to be “family dynamics” and “grief and social isolation”.
In the circumstances of the present case, it is unnecessary to resolve any question that might arise as to whether regulation 2.05(4)(a) requires the Minister to have regard to every contention advanced by an applicant who requests a waiver of a visa condition, as opposed to considering his or her claims as a whole, as to why, since the grant of the visa, compelling and compassionate circumstances have developed over which he or she had no control and that resulted in a major change to his or her circumstances.
Whatever be the correct analysis, in forming a view as to whether the requirements of regulation 2.05(4)(a) had been established, the delegate had regard to the claims made pertaining to Ms Snochowska’s partner’s family dynamics, social isolation and grief. Each was considered, but the delegate was not satisfied that they amounted to compelling circumstances. In particular, the delegate:
a)“acknowledge[d]” that Ms Snochowska’s partner “experienced grief following the death of his wife on 27 June 2016” and “had long-term alienation from his children which induced periods of social isolation” but considered that he would be able to utilise “support services” to assist him during any period of separation from Ms Snochowska;
b)“considered” Ms Snochowska’s claims as to her partner’s “social isolation … while he is on his farm, and without the support of his family”, but was not satisfied that they were compelling as he also had a residence in Sydney; and
c)“acknowledge[d]” the claims as to Ms Snochowska’s partner’s family members pressuring him into moving into a retirement home and the incident in July 2018 where they changed the locks to his property while he was in hospital and acknowledged that he was “experiencing ongoing issues with his family”, but was not satisfied that they were compelling because, as a citizen, he could avail himself of “a range of services” to protect his rights.
The fact that the delegate “acknowledge[d]” some matters does not mean that they were not considered. A decision-maker may properly consider a matter without making an express finding of fact about it. In some circumstances, for example, it will not be necessary for the decision-maker to make a finding about a particular matter if it is assumed in the applicant’s favour. Here, fairly read, the delegate had implicitly accepted Ms Snochowska’s claims pertaining to her partner’s family dynamics and grief, but was nonetheless not satisfied that they met the criterion in regulation 2.05(4)(a). The delegate’s acknowledgment of Ms Snochowska’s claims was tantamount to acceptance, at a factual level.
Ground 2
This ground asserts that the delegate “formed an erroneous assumption that formed a central plan[k] in decision making”. The particulars to this ground provide as follows:
a)services existed to credibly preserve the rights of the partner so as to meaningfully deal with the consequence of social alienation and alleged bullying resulting in him being locked out of his home;
b)the decision maker erroneously assumed contact could be maintained electronically; and
c)the decision maker assumed that the partner would not revert to mental and social deterioration as a result of his social isolation.
It is unclear whether this ground is asserting that the delegate made findings in the absence of any evidence or whether findings were made which were illogical or irrational. In any event, no erroneous assumption was formed by the delegate as alleged by Ms Snochowska.
The delegate had made the following relevant findings:
a)it was open to Ms Snochowska’s partner “to seek the support services available to assist him with any period of separation from [her]”;
b)it was open to Ms Snochowska’s partner “to maintain contact [with her] through electronic means”; and
c)“as an Australian citizen he ha[d] access to a range of services to assist him with his legal rights should he require it”.
Contrary to particular (c) to this ground, the delegate made no finding that Ms Snochowska’s partner “would not revert to mental and social deterioration as a result of his social isolation”. Nor can any unstated assumption be inferred from the delegate’s findings.
Each of the findings listed above was supported by the evidence before the delegate.
So far as the delegate’s finding that Ms Snochowska and her partner could maintain contact through electronic means was concerned, there was evidence that each had a mobile telephone number.[15]
[15] CB 9-10 (see the hospital label affixed to the discharge summary), CB 25 [Q14]
The remaining findings were supported by the evidence that Ms Snochowska’s partner had been admitted to two hospitals as recently as July 2018 (the Mater Hospital and Campbelltown Private Hospital),[16] that he had been instructed to obtain a psychologist’s report in relation to the nature of his emotional and social dependence on Ms Snochowska,[17] and that he said that he had “considerable financial assets”, including his own home, a farm, and at least $20,000 in cash.[18]
[16] CB 8-10
[17] CB 31
[18] CB 12 [11], CB 14 third-last paragraph
To the extent that it might be said that there was implicit in the delegate’s findings an acceptance of the existence of support services or otherwise, that understanding was supported by the evidence. The delegate had evidence before her of the existence of two hospitals, a law firm which then represented Ms Snochowska, and the existence of psychological care services which her partner could utilise in the event that her waiver request was refused and he became distressed or to deal with any violation of his property rights by members of his family.
Further, the delegate was entitled to draw upon her own knowledge and experience of the existence of electronic means of communication and the existence in Australia of legal, medical and psychological services. In circumstances where the delegate was under no duty to give reasons, and it cannot therefore be taken to be a comprehensive statement of every matter taken into account, the fact that she did not state expressly that she was drawing upon such knowledge cannot itself supply the inference that she did not do so.
For the foregoing reasons, the delegate made no erroneous assumptions in her decision (or ones for which there was no evidence). Nor did the delegate make any findings of fact that were illogical or irrational. Each impugned finding was supported by evidence and each was one on which reasonable minds could differ.
To the extent that ground 2 amounts to a ‘no evidence’ challenge, I reject it for two reasons. First, for the reasons given above, there was more than a skerrick of evidence to support the impugned findings. Secondly, for such a challenge to succeed, the decision must depend upon the prior establishment of a particular fact, such fact being jurisdictional. None of the impugned findings can be characterised in that way, albeit that they went to a jurisdictional fact (namely, the Minister’s satisfaction of the matters described in regulation 2.05(4)(a)). Even if there were no evidence for the findings, it does not follow that there was no evidence in support of the jurisdictional fact itself.
Ground 3
By ground 3, it is contended that the delegate made a jurisdictional error “in failing to accurately characterise the complete nature of the claim”. In the particular to this ground, it is said that the delegate characterised Ms Snochowska’s case “as being predicated only upon the claim that her partner would suffer distress on the basis of their separation only” and that “[n]o reference was made to the claim regarding mental deterioration”.
So far as the contention that Ms Snochowska’s partner will suffer mental decline in the event that condition 8503 was not waived is concerned, that claim was considered. The delegate relevantly commenced her reasoning on this aspect of the case by “acknowledg[ing] the statement regarding Ms Snochowska’s partner” that “the consequence of the removal of [Ms Snochowska] and the duration of period of offshore processing will lead to significant physical and mental decline”.[19] The delegate then gave reasons as to why, although she accepted that separation may cause Ms Snochowska’s partner “a level of distress”, the circumstances were not compelling in the requisite sense. Those reasons were as follows:
a)no evidence had been proffered from a psychologist concerning “the nature of [her partner’s] emotional and social dependence on [her]”;
b)her partner could utilise support services to assist him with his separation from her;
c)any period of separation would be temporary; and
d)it would be open to him to maintain contact with her electronically.
[19] CB 31
In the same paragraph, the delegate found that, “[t]herefore”, she was “not satisfied that these circumstances [we]re sufficiently forceful to waive the condition”.[20] One of those “circumstances” was the claim, recorded in the same paragraph, that Ms Snochowska’s partner would suffer “significant physical and mental decline”.
[20] CB 32
Accordingly, to the extent that Ms Snochowska claimed that not waiving condition 8503 would result in her partner suffering mental decline, that claim was considered.
I conclude that Ms Snochowska is unable to establish that a decision of the delegate is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed.
I will order that the application filed 4 December 2018 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Ms Snochowska told me that she is currently penniless, but would be able to pay the costs if she is successful in her Family Court proceedings. I am satisfied that the costs sought have be reasonably and properly incurred.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 May 2020
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