SZGBR v Minister for Immigration - [2005] FMCA 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBR v MINISTER FOR IMMIGRATION

[2005] FMCA 824

MIGRATION – Decision of delegate – refusal to waive visa condition against on-shore visa application – consideration of “compelling and compassionate circumstances” – no misconception of law in brief explanation given by delegate – no legal error in “no evidence” finding.

Migration Act 1958 (Cth), ss.66(2)(c), 368, 430, 483A, Part 8

Judiciary Act 1903 (Cth), s.39B
Administrative Decisions (Judicial Review) Act1977 (Cth), s.13

Applicant:

SZGBR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 901 of 2005

Judgment of:

Smith FM

Hearing date:

10 June 2005

Delivered at:

Sydney

Delivered on:

10 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Wright Stell Lawyers

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the respondents costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 901 of 2005

SZGBR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for judicial review brought under s.483A of the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth). Although the application does not concern a decision on the applicant’s refugee status, he has been given a pseudonym since the evidence refers to previous applications by him and his parents for protection visas and to related litigation (in which he was given a different pseudonym – see: SZAVH & Ors v Minister for Immigration [2004] FMCA 675, and [2004] FCA 1491, and proceedings in the High Court NSD1454 of 2004).
The applicant is a young man now seeking to challenge a decision by a delegate of the Minister for which merits review is not available, refusing to waive a condition attaching to his last substantive visa, upon which he entered Australia in January 2001. Waiver of the condition was necessary to allow him to make an on-shore application for a visa of a different class for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 824
Decision Date: 10 June 2005

CaseChat Overview and Summary

The matter of SZGBR v Minister for Immigration involved the applicant, SZGBR, challenging a decision made by the Minister for Immigration, represented by the Minister, regarding the waiver of certain immigration regulations. The applicant argued that the delegate had failed to properly consider the hardship and compassionate circumstances that warranted a waiver. The case was heard in the Federal Circuit Court of Australia. The central legal issues were whether the delegate had correctly interpreted and applied the relevant immigration regulations, specifically in relation to the consideration of circumstances over which the applicant had no control and whether the delegate had adequately addressed all elements required by the regulation. The court examined whether the delegate's reasoning demonstrated a proper understanding of the regulation, and if the decision-making process was lawful and rational.

The court found that the delegate had considered the applicant's circumstances and had formed a view that significant hardship constituting compassionate circumstances had not been made out. It was accepted that the delegate had to address whether circumstances had developed over which the person had no control, but it was also open to the delegate to consider subsequent decisions made by the applicant as being within his control. The court was not persuaded that the delegate's reasoning revealed a misconception of the law, and thus rejected the applicant's claims of errors of law. The court concluded that while the delegate's explanation was brief, it was sufficient to show that all relevant issues had been addressed.

In light of the above, the court dismissed the application and ordered that the applicant pay the respondents' costs in the sum of $4500. This decision underscored the importance of a thorough yet concise approach in administrative decision-making processes and highlighted the high threshold for overturning such decisions in judicial review.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondents costs in the sum of $4500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I therefore read the two sentences in the delegate’s letter which refer to hardship as providing no more than an indication that the delegate had considered the issue raised by the applicant, and had formed a view that significant hardship constituting compassionate circumstances had not, in his opinion, been made out.iii)In the sentence: “Although your residence in Australia during the protection application and appeal process is out of your control, your decision to remain in Australia without your family and to accept the offer of a university place was not outside of your control.” (my emphasis) Counsel for the applicant argued that the emphasised part of this sentence revealed a misconception of the effect of reg.2.05(4)(a)(i). This was because that element raises for consideration only whether compelling and compassionate circumstances had developed “over which the person had no control”. He argued that, having found that there were some circumstances which had so developed up to the time when the applicant’s parents had returned to Bangladesh, it was irrelevant for the delegate to consider whether subsequent aspects of the applicant's circumstances were within his control. I accept that reg.2.05(4)(a)(i) required the delegate to address whether circumstances had developed over which the person had no control, since that was one element in the pre-condition to the waiver power. I also accept that the delegate appears to have accepted that such was the case in relation to the applicant's circumstances up until his parents departed. However, it was, in my view, open to the delegate also to consider the applicant's subsequent decision to remain and continue with a university course in Australia as being within his control when addressing other elements in the regulation. It was open to him to consider this when addressing the circumstances over-all, to consider whether he thought they had the quality of “compelling and compassionate”. I consider that in the second part of this sentence, the delegate should be understood as saying no more than that he had thought it relevant that this aspect of the applicant’s circumstances were “not outside of your control”. I am not persuaded that this sentence reveals a misconception of law on the part of the delegate. For the above reasons I do not accept the three errors of law argued in his oral submissions to me by counsel for the applicant, nor their different formulation in paragraphs 6 and 7 in the further amended application. I do not accept that the delegate failed to address issues that were required to be addressed under the regulation. Although the brevity of his explanation does not allow me to be positively satisfied that he did adequately address all elements of the regulation, I am not prepared to draw an inference from the letter that he failed to address relevant issues. As I have indicated, I am not persuaded that the letter demonstrates that legally irrelevant matters were addressed and taken into consideration.

Ratio Decidendi

Legal Principle Established

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