SZGBR v Minister for Immigration
[2005] FMCA 824
•10 June 2005
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 |
| A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Repatriation Commission v Maley (1991) 24 ALD 43 Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 SZAVH & Ors v Minister for Immigration [2004] FCA 1491 SZAVH & Ors v Minister for Immigration [2004] FMCA 675 WAEE v Minister for Immigration (2004) 75 ALD 630 Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 |
| 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 which he claims to be otherwise qualified.
The delegate’s decision was notified by letter dated 16 March 2005, and the review application was filed in this Court on 12 April 2005. No expedition was sought at that time, but recently the application acquired urgency due to anticipated legislation changes which might make the visa unavailable. These circumstances were first brought to my attention last Monday at a directions hearing, and I acceded to the request of the applicant to list the matter today for an urgent hearing. The urgency has caused me to give my judgment immediately at the conclusion of argument, rather than take time for the preparation of a more elaborate judgment.
The factual, legal and policy circumstances of the request for waiver were competently set out in the request made by the applicant's solicitors, which is dated the 28 February 2005 and is stamped as "received" on 1 March 2005 by the Department. I am informed from the bar table that no other request for the waiver was made, and that a reference in the delegate's letter to a request dated 4 March 2005 should be understood as being a reference to the solicitor's request on behalf of the applicant. It is convenient for me to incorporate the whole of the solicitor's letter:
Dear Sir/Madam,
MR [SZGBR] – DOB X/X/1986 – REQUEST FOR WAIVER OF CONDITION 8503 (“NO FURTHER STAY”)
The writer is instructed by Mr [SZGBR] (“the Applicant”) and we enclose an original completed and signed Form 956.
On 16 February 2005, we sent to DIMIA the Applicant’s application for Close Ties Subclass 832 Visa pursuant to the provisions of regulations 832.211(3)(“Innocent Illegal”).
The DIMIA receipt number for that application is 1540506849.
However, we were notified in writing by DIMIA, Global Processing Unit, ACT Regional Office by its letter dated 18 February 2005 that the Applicant’s application for a Subclass 832 Close Ties Visa could not be accepted and was not a valid application as according to DIMIA records the applicant’s last substantive visa holds condition 8503 “No further stay”.
We therefore request that condition 8503 be waived to enable the applicant to lodge a valid application for a Subclass 832 Close Ties Visa.
We have assessed the Applicant against the regulations for the grant of the Subclass 832 Close Ties Visa and believe that he satisfies all of the criteria.
However, without the waiver of the 8503 condition, the Applicant will be unable to lodge his Close Ties Visa.
The Applicant arrived in Australia on a Visitor’s Visa on
17 January 2001 when he was aged 14 years and 8 months together with his father SZAVH, his mother SZAVI and his younger brother SZAVK.
The Applicant has never held a student visa and is currently holding a Bridging Visa A.
The Applicant has now turned 18 years of age and his father, mother and younger brother have all returned to Bangladesh. We believe therefore that the Applicant satisfies the criteria for the grant of a Close Ties Visa.
Regulation 2.5(4) provides for the Minister to waive condition 8503 in certain circumstances.
The Procedures Advice Manual (“PAM”) 3 provides guidance to the Minister’s delegate for the types of circumstances when a waiver of condition 8503 could be granted. Our submissions follow the PAM guidelines.
Whether the visa holder was aware that the condition applied to the visa
The Applicant was granted a Subclass 676 Tourist Visa by DIMIA Dhaka, Bangladesh on 8 January 2001 which had condition 8503 attached to it.
The Applicant’s parents and his younger brother were also granted Tourist Visas with the same condition by DIMIA Dhaka on that day. The purpose of the Tourist Visas was to enable the family to visit the father’s brothers in Sydney, each of whom are Australian citizens.
The Applicant was aged 14 years and 8 months when DIMIA Dhaka granted him his Tourist Visa. Because of his young age and the fact that he did not sign the application form (he was included in his parents’ application form), we submit that the Applicant could not have been aware of the implications of the 8503 condition.
We refer you to the enclosed psychologist’s report dated 24 February 2005 in which the examining psychologist, in her opinion, believes that because of the young age of the Applicant, he could not have been aware of the implications of the 8503 condition.
Major change
PAM 3 states that for waiver to be granted there must have been a major change in the Applicant’s circumstances. Currently, there are no PAM policy guidelines on this factor.
We submit that there has been a major change in the Applicant’s circumstances.
As explained in the enclosed psychologist’s report, the Applicant has now spent 4 years of his “prime” formative years living in Australia. The Applicant first entered Australia on 17 January 2001 together with his parents and younger brother when he was aged just 14 years and 8 months. The Applicant will turn 19 years of age in May this year.
Since arriving in Sydney, the Applicant attended (a Sydney) High School and graduated with his HSC last November.
He has now been offered a place at a degree course at Central Queensland University.
The Applicant has therefore lived in Australia as a minor through to adulthood having spent his formative years living in Australia, the Applicant considers himself to be an Australian and regards Australia as his home.
The psychologist explains on page 3, paragraph 1 as follows:
“SZGBR has stated that he belongs in Australia because this is where he has spent his formative years. He identifies with the Australian way of life and culture. Everything he holds important is here and he does not want to leave it behind. He is clear in his mind that he would never fit into life in Bangladesh. It is my opinion that the fact that SZGBR considers himself to be an Australian and sees Australia as his home can be regarded as a “major change”.
In the enclosed copy of his letter dated 12 November 2004 the Principal of (the) High School explains:
“SZGBR is a courteous and very likeable young man with a warm personality. He is a fine student who has demonstrated school service and loyalty.
..He takes real pride in his appearance and has contributed positively to the tone of the school.
..SZGBR has been a credit to his school”
Circumstances beyond the visa holder’s control
PAM 3 states that the visa holder must demonstrate that the major change to their circumstances was beyond their control.
We submit that the major change to the Applicant’s circumstances was beyond his control.
The Applicant travelled with his parents and younger brother from Dhaka to Sydney in January 2001 whilst he was a minor, thinking that he was travelling to Sydney to meet his uncles. The Applicant was not aware that he would spend his prime formative years growing up in Sydney.
Following their arrival in Australia, the Applicant’s parents applied for a protection visa which included the Applicant and his younger brother.
Subsequent years in Australia were spent awaiting the outcome of the protection visa application and various appeals.
It is clear that the application for the protection visa and subsequent years in Australia was beyond the Applicant’s control, ie he was subject to the decisions made by his parents.
The psychologist confirms that the major change in the Applicant’s circumstances was due to circumstances outside of the Applicant’s control.
Compelling circumstances
PAM 3 states that the decision to waive the 8503 condition can be taken only if compelling circumstances have developed since the visa holder was granted the visa that had the 8503 condition attached.
Under PAM policy “compelling circumstances” are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder faces the situation in which there is little alternative but to seek to extend their stay in Australia.
PAM 3 provides the following examples of compelling and compassionate circumstances:
Unfitness to travel;
Death/illness within close family;
Significant hardship;
Natural disaster in the home country;
War, civil unrest in the home country;Closure or inability of education provider;
We submit that the Applicant’s circumstances fall with the “significant hardship” category.
PAM 3 states that significant hardship is in the situation whereby:
• The visa holder’s circumstances have changed after the visa was granted;
• That the change was beyond the visa holder’s control;
• Not granting a waiver will cause significant hardship;
PAM 3 explains that the following is not intended to constitute a change of circumstances;
• Marriage to an Australian resident;
• Failure to complete a course;• Pregnancy;
The Applicant’s circumstances have changed after the visa was granted.
As explained above, the Applicant’s parents applied for a protection visa and subsequently appeals resulted in the Applicant spending his prime formative years in Australia leading to the Applicant to consider himself to be an Australian and to regard Australia as his home.
It is clear that the Applicant’s circumstances have changed dramatically since he was granted the Tourist Visa in January 2001. As the psychologist has quoted in her report:
“Adolescence is a critical period of development, with manifestations at the biological, psychological and social levels of integration.”
Since 1 December 2004, the Applicant has been living apart from his parents and younger brother. His parents returned to Bangladesh on Sunday, 20 February 2004 without visas enabling them to return to Australia (see enclosed copies of their passports).
The change was beyond the visa holder’s control
As explained above, the Applicant’s parents applied for a protection visa when they arrived in Australia and lodged subsequent appeals, which clearly was beyond the Applicant’s control.
Not granting a waiver would cause significant hardship
Should the 8503 condition not be waived, then the Applicant will have no choice but to return back to Bangladesh, a country which he left more than 4 years ago when he was a young teenage boy. As the Close Ties Visa cannot be applied for off-shore, the Applicant will never have the opportunity to return to Australia, a country he considers to be his home. This will cause the Applicant significant emotional grief and hardship.
The psychologist explains in her report that the Applicant regards Bangladesh as a place of fear and he has many distressing memories of his life there as a consequence of the attacks on his father as recorded in his application for protection visa (see enclosed copy of RRT decision dated 4 May 2003).
The psychologist explains at page 4 of her report:
“SZGBR stated that if he had to return to Bangladesh, he would lose his identity, his security, his friends, family ties and his career. He would also lose hope. Everything he holds important is here and he does not want to leave it behind. It is important to him that for the first time in his life, SZGBR fought with his parents and defied their wishes because he wanted to stay here. It is my professional opinion that not being granted a waiver to condition 8503 would cause SZGBR significant hardship and emotional distress.”
We also refer you to the enclosed copy of the Applicant’s statutory declaration where he explains that should he be forced to Bangladesh, he will feel totally alienated.
We submit that the Applicant is a worthy candidate for the delegate to grant a waiver of condition 8503 to enable him to lodge his Application for Close Ties Subclass 832 Visa for which we believe he will qualify. The only impediment to the Applicant applying for the Close Ties Visa is the condition 8503 that was attached to his last substantive visa. The Applicant entered Australia whilst he was a minor and he is now an adult. Having spent his formative years in Australia, he considers himself to be an Australia and Australia is his home. The Applicant graduated with his HSC last year and has been accepted for a place in Central Queensland University. The Applicant will be able to make a positive contribution to the Australian community should he be granted a Close Ties Visa. It would cause the Applicant significant hardship should the 8503 condition not be waived and the Applicant be forced to return to Bangladesh, a country which holds no real future for him.
We request that you consider the Applicant’s case sympathetically. We enclose the following:
1.Certified copy of the Applicant’s passport;
2.Certified copy of the Applicant’s parent’s passports and younger brother’s passport;
3.Certified copy of psychologist’s report dated 24 February 2005;
4.Certified copy of Universities Admissions Centre statement dated 18 December 2004;
5.Certified copies of (the) High School Yearly reports for year 9 and year 10;
6.Certified copy of (the) High School HSC certificates;
7.Certified copy of (the) High School certificates and awards;
8.Certified copy of photographs of year 12 graduation ceremony;
9.Certified copy of letter from the Principal of (the) High School dated 12 November 2004.
10.Certified copy of statutory declaration from the Applicant;
11.Copy of RRT decision dated 4 May 2003.
Should you require further information or have any questions, please let us know.
Yours faithfully
Wright Stell
Mark Tarrant
The legal context of the power to waive the 8503 condition has been explained by Allsop J in Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [5-8]:
[5] Subsections 41(1) and 41(2) of the Migration Act (the Act) provide as follows:
41(1) The regulations may provide that visas or visas of a specified class are subject to specified conditions
41(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) while he or she remains in Australia;
[6] Conditions such as are referred to in para 41(2)(a) are prescribed in the Migration Regulations 1984. Condition 8503 in Schedule 8 to the regulations provides:
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.
[7] Subdivision AA of Division 3 of Part 2 of the Act deals with applications for visas. The effect of s 46, which deals with the validity of these applications, is that, relevantly, an application for a visa by a person already in the migration zone is valid if, and only if, the applicant has not since last entering Australia held a visa subject to a condition of the kind prescribed in para 41(2)(a), or if the applicant has since entering Australia held a visa subject to such a condition, then the Minister has waived the condition under subs 41(2A) - see paras 46(1)(e)(i) and (ii).
[8] Subsection 41(2A) provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in para 41(2)(a) to which a particular visa is subject. The prescribed circumstances for the purposes of subs 41(2A) are contained in regulation 2.05(4), which relevantly is as follows:
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.
The initial issue before the delegate in the present case was whether the circumstances set out by the solicitors in their letter, together with the attachments which were listed at the end of the letter, met the pre-conditions for waiver which were found in regulation 2.05(4). The delegate, if satisfied as to those pre-conditions, may then also have had discretion to refuse the waiver, but in the present case I do not understand the delegate as having gone further than addressing the pre-condition identified in the regulation.
According to the bundle of relevant documents filed by the respondent, apart from the solicitor’s letter and attachments, the only relevant document which was before the delegate when he made his decision was a minute prepared within the respondent’s Department. This comprised four pages which assessed the request, and recommended that:
The 8503 condition on SZGBR’s visa is NOT WAIVED.
You sign the decision letter attached.
The minute is addressed to the delegate who in fact signed the letter, but there is nothing on the face of the minute or the letter as signed by the delegate which indicates that the delegate has adopted any part of the reasoning of the minute. This was not contended by either counsel appearing before me. Both counsel accepted that the delegate's reasons for deciding not to exercise the waiver power were to be found, if at all, in the letter he signed. Both accepted that any surrounding circumstances, including the minute, were relevant only to the extent that they assisted the understanding of what was in the letter.
The delegate’s letter stated:
RE: REQUEST TO WAIVE CONDITION 8503 (No Further Stay)
I refer to your request dated 04 March 2005 to waive the 8503 (no further stay) condition that was imposed on your Visitor Visa (Subclass TR 676).
After careful consideration of the relevant legislation and the circumstances you presented in your request, I have determined that you failed to satisfy legislative criteria for the 8503 condition to be waived. Consequently, your request has been denied and the condition remains in effect.
Requirements for waiving the 8503 (no further stay) condition
Your request was assessed against the requirements of Migration Regulation 2.05(4). This regulation prescribes the criteria that must be met before the 8503 visa condition can be waived. Under this regulation, visa holders must demonstrate that compelling and compassionate circumstances have arisen since their visa was granted, and represents a major change to their circumstances and this change was beyond their control.
Based on the information presented, I have determined that you failed to satisfy Reg.2.05(4). There are no compelling circumstances to prevent you from departing Australia. There is no evidence that your return to Bangladesh would cause significant hardship. Although your residence in Australia during the protection visa application and appeals process was outside of your control, your decision to remain in Australia without your family and to accept he offer of a university place was not outside of your control. Your withdrawal from a university course would not cause significant hardship and constitute a compassionate circumstance.
Review rights
Please note that this decision is not reviewable by the Migration Review Tribunal (MRT).
I note that your bridging visa remains in effect until the outcome of your High Court appeal.
Counsel for the applicant conceded that the delegate was under no obligation to provide a full statement of his reasons for refusing the request, and had not done so. However, he argued that the above letter provided evidence of the delegate's reasons, particularly in the paragraph above the heading "Review rights". He then sought to persuade me that this paragraph revealed jurisdictional error.
Counsel for the Minister at first sought to persuade me that the letter contained no evidence of the delegate’s reasons at all, but was merely a notification of an outcome: the refusal of the request for waiver.
In my view, the letter does attempt to provide some explanation of the delegate’s reasons for refusing the request to waive, and it is open to the applicant to seek to find in it evidence that the delegate’s decision was vitiated by jurisdictional error.
However, I accept the submission of counsel for the Minister that the delegate did not present his one paragraph explanation as a complete or full statement of reasons, and manifestly it should not be examined and considered in the way that the Court would address a statement of reasons under, for example, s.13 of the Administrative Decisions (Judicial Review) Act1977 (Cth) or ss.66(2)(c), 368 or 430 of the Migration Act. In particular, in the absence of an obligation fully to state reasons, it may be difficult to draw inferences of error from the absence of discussion of relevant considerations in the delegate’s brief explanation (c.f. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]; and WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]).
I also accept her submission that the injunction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291 must be applied to considering this paragraph to a greater extent than when examining the reasoning of a full statement of reasons. In particular, I consider that it is apparent from the delegate’s explanation that it does not attempt to recite and separately address the elements of the regulation which the delegate was required to address. In my view it clearly does not attempt to provide the delegate’s whole stream of reasoning in relation to the relevant provisions of the regulation, and it would be a mistake to read it as if it did. Rather, I would read the delegate as attempting a very short explanation to convey an overall opinion on the request that had been put to him.
On this view of the letter, the applicant's contentions encounter some difficulty. They argued jurisdictional errors of two species: first, that the delegate’s explanation revealed on its face misconceptions of law as to the requirements of regulation 2.05(4); and, secondly, that there was a material finding of fact which was not open to the delegate.
I will deal with the first species of error first.
Counsel for the applicant argued that the delegate’s one paragraph of explanation revealed three separate misconceptions of law. I shall identify and address these by reference to the relevant sentences.
i)In the sentence: “There are no compelling circumstances to prevent you from departing Australia”. (my emphasis)
Counsel submitted that in this sentence the delegate showed that he required that compelling circumstances coming within the regulation should be such that they prevented a visa applicant from leaving Australia. As I understood him, he did not dispute that compelling circumstances might be found by considering whether there were circumstances having such an effect, but he submitted that compelling circumstances might include other circumstances which did not have that effect. It would be a serious misconception of the reg.2.05(a) for a delegate to think otherwise. His submission was that the delegate had insisted upon finding circumstances preventing the applicant from departing Australia, and had therefore substituted a different question from the question posed by the regulation. This was only whether “compelling and compassionate circumstances had developed” with the added characteristics described in (i) and (ii). The delegate had asked himself a different, more demanding, question.
I do not accept that this sentence from the delegate’s explanation reveals this error. As I have indicated, I do not read the delegate's explanation as purporting separately to address elements in the regulation. The regulation conferred a broad and subjective power on him to assess all relevant circumstances bearing on whether a prohibition on an on-shore visa application should be waived. I think in a very compressed way the delegate has done no more than to indicate some factual aspects of the case which he considered to be particularly relevant when addressing the legal issues.
Authorities on the meaning of tests of “compelling and compassionate circumstances” in other regulations have shown that these words confer on a decision maker a broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances. For example, in Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 at 12, Marshall J refers to authority that:
It should also be borne in mind that the concept of a compelling and compassionate circumstance…is one that relates to "an event or events that are far-reaching and most heavily persuasive".
In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 a Full Court considered the meaning of an exemption or waiver power in relation to a visa condition which included a test of “compelling circumstances”. Their Honours said:
[21] In our opinion there is no error in construing "compelling circumstances" to mean 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. …
[24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in (the relevant regulation) should be waived.
I read the present delegate’s sentence under examination as saying no more than that, in the delegate's opinion, the applicant was not prevented from departing Australia by circumstances that the delegate regarded as compelling. In my view that was a relevant consideration for the delegate to give weight to, and I do not infer from this statement that he confined his attention to that consideration in a way that would amount to error of law and jurisdictional error.
ii)In the sentences: “There is no evidence that your return to Bangladesh would cause significant hardship.” and “Your withdrawal from university course would not cause significant hardship and constitute a compassionate circumstance.” (my emphasis)
Counsel submitted that these references to “significant hardship” showed that the delegate had substituted a test of significant hardship for the statutory test of compelling and compassionate circumstances.
I do not accept this submission, for the same reasons as I rejected the previous submission. I consider that it was understandable that the delegate would consider the effect of a return to Bangladesh on the applicant, and whether it would cause him significant hardship when deciding the preconditions for waiving the condition against onshore visa applications. These references in the delegate’s explanation do no more than indicate that he had considered hardship as a possible “compelling and compassionate circumstance”.
Moreover, the issue of whether a return to Bangladesh would cause significant hardship had been raised at the forefront of the applicant's own request for waiver, which I have set out above. It identified the element of “significant hardship” from the list of examples of compelling and compassionate circumstances suggested by the PAM policy, and put it forward as the most relevant way of addressing the present applicant's circumstances. The letter then elaborated a submission on this precondition under the heading: “Not granting a waiver would cause significant hardship.” Reference was then made to the psychologist’s report which explained how a return to Bangladesh would affect the applicant.
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.
The remaining ground which was argued before me was that the sentence in the delegate’s letter: “There is no evidence that your return to Bangladesh would cause significant hardship” revealed error of law and jurisdictional error of the type described in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50. In that case, a Full Court recently accepted that “an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence” and that “this error will amount to jurisdictional error if the Tribunal’s decision is based on such finding” (see [5] and [13], where their Honours prefer to label the error as a failure to take account of relevant material, rather than “no evidence”). Identification of a similar error arising from an erroneous finding of “no evidence” on a material issue was made by another Full Court in Repatriation Commission v Maley (1991) 14 AAR 278 at 285-6, based on Mason CJ’s discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.
Counsel for the applicant argued that read literally the statement “there is no evidence that your return to Bangladesh would cause significant hardship” was plainly incorrect, because there was evidence supporting an opinion that such a return would cause such hardship. That evidence was the opinion of the psychologist which had been referred to in, and attached to, the applicant’s request for waiver. In particular, counsel drew attention to the following section in the psychologist's report:
Not being granted a waiver condition 8503 would cause SZGBR significant hardship and emotional distress. SZGBR identifies with the Australia way of life. He sees himself as Australia and would not fit in with life in Bangladesh. SZGBR has lived his formative teen years in Australia and he feels that he belongs here. He has absorbed the culture and way of life here.
SZGBR’s life in Australia is a fundamental part of him and his sense of identity has been developed and established as part of the Australian culture. He talks of Bangladesh as a place which holds fear and many distressing memories and a place where he does not belong or fit in.
SZGBR stated that if he had to return to Bangladesh he would lose his identity, his security, his friends, family ties and his career. He would also lose hope. Everything he holds important is here and he does not want to leave it behind. It is so important to him that for the first time in his life SZGBR fought with his parents and defied their wishes because he wanted to stay here. It is my professional opinion that not being granted a waiver to condition 8503 would cause SZGBR significant hardship and emotional distress.
I accept that the above authorities hold that a decision maker will make an error of law by making a factual finding that "there is no evidence" as to a material factual matter, where in the opinion of the Court there was evidence as to that matter before the decision maker. In such a case, the decision-maker would have made a finding of fact which was not “open” to be made, and would therefore have failed to exercise the power of decision according to law.
However, in many cases, courts have declined to find this error by construing a decision-maker’s reference to “no evidence” as not to be taken literally, but rather as a factual opinion by the decision maker on the effect of all the evidence before the decision-maker. They have applied the injunction in Minister of Immigration v Wu (supra), and found that a Tribunal’s framing of conclusion in terms of “no evidence” should be read as intending to say no more than that “there was no evidence capable of satisfying it on the issues in question” (e.g. A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] and [18-23], and Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]). In these cases, the surrounding circumstances and the context of the finding indicates that the “no evidence” statement by a decision-maker could not have been intended to be understood literally.
In my view, in the context of the present explanation given by this delegate, that is the appropriate way to read his reference to “no evidence” in relation to significant hardship. I read this as a statement by the delegate that he was not persuaded that there was evidence that the applicant's return to Bangladesh would cause what the delegate would regard as significant hardship. In effect, as not accepting the submission, clearly put to the delegate in the solicitor's letter, that the psychologist's opinion should give rise on the part of the delegate to an opinion that there was such significant hardship as to amount to compelling and compassionate circumstances. I read this sentence as rejecting that submission.
I am unable to infer from that sentence or anything else in the delegate's letter, that the delegate has overlooked the psychologist's opinion. My principal reason for reaching this conclusion is that the psychologist’s opinion had been so prominently brought to the delegate’s attention in the applicant’s request, that I find it inconceivable that the delegate would not have been aware of it and taken it into consideration.
Moreover, the Departmental minute which also was before the delegate contained, under the heading “summary of request/claims …”, a discussion in which at least half of it drew attention to the psychologist's report and expressly referred to the psychologist's opinion that: “a refusal to waive the 8503 condition would cause SZGBR significant hardship and emotional distress". I cannot be persuaded that the delegate did not read and consider these parts of the minute.
The minute also in its “assessment” section contained the words: “there is no evidence to suggest that (the applicant's) return to Bangladesh would cause him significant hardship”, followed by reference to a finding of the Refugee Review Tribunal that the applicant’s family would not suffer persecution. Read in isolation, this might appear to direct attention only to the RRT finding.
However, I am not prepared to conclude that the delegate would have been mislead by this part of the Departmental minute into overlooking the psychologist’s opinion. I would not read the delegate’s opinion when expressed in his letter that the applicant’s return to Bangladesh would not cause significant hardship, as confined to refugee considerations. Even if he adopted without change a letter drafted by the assessor, I would not infer that the delegate understood this sentence in the letter as confining his consideration when he accepted it as part of his explanation for refusing to waive the visa.
For the above reasons I am not persuaded that the delegate made an error of fact which constituted jurisdictional error, by mistakenly believing that the evidence before him did not include evidence capable of showing significant hardship to the applicant.
I have above addressed what I think are all the submissions made to me by counsel for the applicant, noting that in some respects they departed from the framing of the amended application. I would also note that counsel for the applicant expressly disclaimed reliance upon paragraph 9 of that application.
For the above reasons, I am not persuaded that the decision of the delegate was affected by jurisdictional error, and therefore do not consider that the applicant has made out an entitlement to the relief he seeks from the court. I must dismiss the application.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 20 June 2005
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