SZFOP v Minister for Immigration
[2010] FMCA 438
•15 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOP v MINISTER FOR IMMIGRATION | [2010] FMCA 438 |
| MIGRATION – Delegate’s decision – waiver of visa condition precluding on‑shore visa application – applicant married Australian citizen in compassionate circumstances – open to delegate to find that applicant’s circumstances not beyond his control and not ‘compelling’ – application for judicial review dismissed. |
| Migration Act 1958 (Cth), ss.41(2A), 417, 476 Migration Regulations 1994 (Cth), reg.2.05(4), Sch.8 cl.8503 |
| Salazar v Minister for Immigration & Multicultural Affairs [2001] FCA 899 SZFOP v Minister for Immigration & Anor [2009] FMCA 1099 SZGBR v Minister for Immigration [2005] FMCA 824 |
| Applicant: | SZFOP |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 508 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 15 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the respondent’s costs in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 508 of 2010
| SZFOP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in April 2000 on a three month tourist visa. On 27 July 2000 he applied for a protection visa. This was refused in August 2000, and the decision was affirmed by the Refugee Review Tribunal in July 2002. The applicant remained in Australia.
In 2005 the applicant applied for judicial review of the Tribunal’s decision, but that proceeding terminated in August 2005 in accordance with consent orders signed by the applicant and submitted by his solicitor. The applicant then unsuccessfully pursued repeated s.417 requests to successive Ministers.
In August 2009 he applied to set aside the previous consent orders of this Court. That application was refused by Scarlett FM on 17 November 2009 (see SZFOP v Minister for Immigration & Anor [2009] FMCA 1099). His Honour found no evidence to establish allegations of fraud or lack of instructions on the part of the applicant’s previous solicitor, nor was his Honour satisfied that there was an arguable jurisdictional error affecting the Tribunal’s decision. His Honour also thought that there were no satisfactory explanations for various delays.
The applicant married an Australian citizen on 23 January 2010, and on 3 February 2010 he requested a waiver by the Minister of a condition on his original substantive visa to allow him to make an onshore spouse visa application. The condition was in terms of cl.8503 of Sch.8 of the Migration Regulations 1994 (Cth), which provided:
8503The 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 Minister is given power to waive such a condition only “in prescribed circumstances” (see s.41(2A)). The circumstances are prescribed in reg.2.05(4):
(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.
The applicant’s application for exercise of this power put forward the following grounds:
1.I am the spouse of Australian citizen W.
2.We maintained genuine relationship for over 10 years.
3.W was subject of domestic violence at the hand of her ex‑husband.
4.My wife suffers psychologically & physically.
5.I made a decision to depart Australia soon but my wife became agitated and upset as she cannot be without me.
6.Please waive 8503 to assist me to lodge spouse visa here.
7.Further evidence will be provided re medical condition.
8.Please make a decision asap.
9.Please notify compliance of my change of circumstances.
Documents enclosed with the waiver application established the applicant’s marriage, the citizenship of his wife, and her divorce from a previous spouse in 2004. They also included a letter from a general practitioner dated 3 February 2010, which is difficult to characterise. It is addressed to a principal of a Catholic school in relation to some unspecified matter in which the principal was being requested to assist the applicant’s wife. The letter lists 17 attendances on the doctor between 1990 and 2009 for a variety of complaints, and lists her current medications. A reading of it does not suggest any particular level of impairment suffered by the applicant’s wife, nor any condition which necessarily causes substantial physical or mental impairment. The list of attendances contains only one reference to a mental complaint, being an attendance for “depression – reactive” in July 2008. It shows no attendance since May 2009, and that attendance was for “smoking cessation”.
A copy of the doctor’s letter was later forwarded to the Minister by Mr Toufic Laba Sarkis, an unregistered migration agent who calls himself a “community volunteer”, and who was assisting the applicant. In fact no “further evidence” of a medical nature was ever forwarded to the Department. Mr Laba Sarkis also made a submission addressed to the Minister, inviting compassionate intervention.
A delegate of the Minister made a decision on 3 March 2010 to decline the exercise of the power to waive the condition. The delegate was not obliged to provide a statement of reasons, and did not do so (see SZGBR v Minister for Immigration [2005] FMCA 824 at [13], and also Salazar v Minister for Immigration & Multicultural Affairs [2001] FCA 899 at [26]).
When making her decision, the delegate had before her a submission from another officer in the Department containing a recommendation which was accepted. In the circumstances, I am prepared to assume that the delegate probably adopted the reasoning of that submission. The officer recommended declining the request for waiver upon the following assessment:
ASSESSMENT OF THE CIRCUMSTANCES OF THE CLIENT AGAINST SUBREGULATION 2.05(4):
a) If the client has previously had a request for a waiver of condition 8503 and the condition was not waived, are the circumstances provided in relation to this particular request substantially different from those considered previously?
N/A. This is the first waiver request from the client.
b) Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
Yes. Mr Taouk arrived in Australia on 28 April 2000 on a three month Tourist Visa. Mr Taouk remained in Australia beyond his visa validity period and applied for a Protection Visa.
Mr Taouk met Ms W, an Australian Citizen and they married on 23 January 2010.
Mr Taouk claims his wife relies on him for emotional support due to her ongoing medical conditions.
c) Did the circumstances result in a major change to the client’s circumstances?
Yes. Mr Taouk’s marriage to Ms W can be considered as a major change to his circumstances.
d) Were the circumstances outside the client’s control?
No. Mr Taouk made a conscious decision to remain in Australia beyond his visa validity period and to marry Ms W.
This decision is completely within his control.
e) Are these circumstances compelling?
No. Mr Taouk claims he is unable to depart Australia as his Australian Citizen wife relies on him for emotional support due to her ongoing medical conditions.
In a letter dated 03 February 2010, Dr J states that Ms W has had numerous medical conditions since 1990. However, this medical evidence does not confirm that Ms W is unable to care for herself or perform her daily activities without assistance.
Mr Taouk claims that, “the changes of circumstances ie his marriage to an Australian Citizen, Miss W would be accepted as per September legislation and would excite your compassionate intervention and allow him to stay in Australia as the spouse of an Australian Citizen.”
However, under the relevant 8503 Policy provisions marriage to an Australian resident would not normally be considered to be ‘beyond the control’ of a waiver applicant. Waiver policy in relation to medical conditions of close family members also requires that the officer be satisfied that the family member both requires care, and that the applicant is the only person who can provide that care.
Mr Taouk’s claims do not constitute circumstances of a compelling nature.
f) Are these circumstances compassionate?
Yes. Some compassionate circumstances do exist. Mr Taouk is a newly married man who claims his wife does not want to be separated from him.
(emphasis in original)
The applicant now asks the Court to set aside the delegate’s decision, and to remit the matter for further consideration by the Minister. The Minister accepts that I have jurisdiction in this respect under s.476 of the Migration Act, provided jurisdictional error can be established affecting the decision. The Court does not have power itself to consider the merits of the matter, nor to make any recommendations as to how the Minister should exercise powers under the Migration Act.
The applicant’s original application gave no details of a particular jurisdictional error. Its grounds were:
1.The delegate of the Minister failed to apply the law.
2.The delegate misunderstood the claim.
3.The delegate ignored important information given and failed to justify the decision.
A document entitled ‘Affidavit’ appears to attempt to provide substance to these grounds in paragraphs 2 to 8:
2.In ground 3 of my Application under the Migration Act filed in Court on 31 March 2010 I stated that the Delegate ignored important information given.
3.My wife suffered depression (court book p.18) as from 10/7/2008. Such was indeed overlooked by the decision maker. Even the decision maker overlooked the deterioration in the Australian spouse’s health, especially after 28/5/2002.
4.I refer to the assessment of the circumstances point (d) Were the circumstances outside client’s control? The answer “No” by the delegate is an error of law because I made a decision to remain in Australia because of circumstances beyond my control as I could not depart Australia and leave my wife who suffered depression and other factors which would be detrimental to her health and well being, especially knowing that my life is at risk as I have had and continue to have a well founded fear of persecution because I was the bodyguard of Samir Geagea. The delegate overlooked my documented history before the Department.
5.The decision maker referred to the letter dated 3 February 2010 given by Dr J and made a comment that the medical evidence does not confirm that Ms W, my wife, is unable to care for herself or perform her daily activities without assistance. The Delegate failed to ask such question and received medical opinion directly from the Doctor. Such failure is an error of law.
6.The Delegate also ignored important information listed in the application for 8503 waiver, court book 1, such as W was subject of domestic violence at the hand of her ex‑husband, my wife suffers psychologically and physically and that my wife became agitated and upset as she cannot be without me, the Delegate also failed to request further evidence.
7.The Delegate failed to understand “compelling” and “compassionate”. While the Delegate accepted that some compassionate circumstances do exist, and that I am newly married man but failed and ignored that we maintained genuine relationship for over ten years and failed to see the consequences of any forced separation after a long term genuine relationship.
8.The Delegate of the Minister ignored the representation to Senator Chris Evans by my community volunteer of 3 February 2010 (court book p. 19 and 20) and failed to understand and apply the law.
I am not satisfied that there is any substance to these arguments. I not satisfied that the delegate overlooked any material which had been presented in support of the application for waiver. Moreover, in my opinion, the delegate probably read all the documents, including the submission which was before her.
The letter from the doctor was specifically identified in the submission, and, in my opinion, the assessment made of the letter was plainly open to the delegate. It was not the duty of the Minister to make further inquiries of the doctor as to the medical condition of the applicant’s wife.
In my opinion, the delegate’s conclusion that the compassionate circumstances which had developed since the applicant came to Australia in 2000 were not relevantly to be regarded as circumstances “over which the person had no control” was open to the delegate on the material before the delegate.
In relation to the assessment of whether the circumstances were ‘compelling’, the authorities which I cited in SZGBR at [19] and [20] show that the concept of ‘compelling’ addresses “circumstances which force or drive the decision maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion”. The adjective ‘compelling’ does not address the opinions of the applicant when deciding to protract his stay in Australia, inter alia by marrying an Australian citizen. I am unable to detect in the submission to the delegate, and certainly not from the decision record of the delegate, that when she applied the regulation she acted under any misapprehension as to its correct legal interpretation.
For the above reasons, I am not persuaded by any of the arguments made by the applicant in his ‘affidavit’ or in his oral submissions to me today. I am not satisfied that the decision of the delegate of the Minister was affected by any jurisdictional error.
I must therefore dismiss the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 June 2010
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