SZLPH v Minister for Immigration
[2018] FCCA 231
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZLPH v MINISTER FOR IMMIGRATION | [2018] FCCA 231 |
| Catchwords: MIGRATION – Application to review decision of a delegate of the Minister for Immigration not to waive “no further stay” condition imposed on the Applicant’s visa – whether jurisdictional error in relation to assessment of whether there were compelling and compassionate circumstances within reg.2.05(4) of the Migration Regulations. |
| Legislation: Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth), reg.2.05, sch.8 condition 8503 |
| Cases cited: Anani v Minister for Immigration [2013] FCCA 1140 | ||
| Applicant: | SZLPH | |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 466 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 8 February 2017 |
| Date of Last Submission: | 23 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 466 of 2015
| SZLPH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of a delegate of the Respondent dated 3 February 2015 not to waive condition 8503 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).
The Applicant, a citizen of Pakistan, arrived in Australia on 2 November 2005 as the holder of a Business (Short Stay) (Class UC) Subclass 456 visa granted on 5 April 2005 which was subject to condition 8503. Condition 8503 provides that the visa 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. This visa expired on 2 February 2006.
In 2006 the Applicant applied for a protection visa. His application was refused. The Tribunal affirmed the delegate’s decision and the Applicant sought judicial review. He was ultimately unsuccessful (in November 2008). He remained unlawfully in Australia.
On 12 January 2015 the Applicant made a written request to the Minister to waive condition 8503 under s.41(2A) of the Migration Act 1958 (Cth) (the Act) on the basis that he wished to stay in Australia with his wife, an Australian citizen.
Section 41 of the Act is as follows:
(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; 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).
…
The circumstances in which a condition such as a condition 8503 may be waived are prescribed in reg.2.05 of the Regulations. Relevantly, reg.2.05(4) is as follows:
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.
While reg.2.05(4AA) relates specifically to the waiver of condition 8503 there is no suggestion or evidence that it was relevant in this case.
In support of the waiver application the Applicant provided a statement from his wife, whom he married in September 2012. She claimed that the Applicant fell off a ladder in November 2014 and fractured his pelvis and arm and that she suffered from psychological conditions following his admission to hospital, surgery and medical complications.
Various documents were provided in support of the application, including a copy of the Applicant’s marriage certificate, a letter of 18 December 2014 from a Dr Skarratt of Westmead Hospital, information in relation to bombing incidents in Pakistan said to have been near the wife’s house in Lahore, photographs of the wedding, various letters of support in relation to the couple’s relationship, copies of telephone records, medical evidence relating to the couple’s fertility and attempts to conceive, and a letter from a psychologist dated 9 January 2015. The psychologist’s letter stated that the Applicant’s wife had reported symptoms meeting the criteria for an adjustment disorder and that she was currently suffering from significant stress in the context of her husband’s sudden serious injuries. Her symptoms were said to be hindering her ability to concentrate and to continue with her work and studies. It was suggested that granting her husband a “spousal visa” (sic) would be highly beneficial in reducing her stress.
The letter of 18 December 2014 from Dr Skarratt was addressed “To whom it may concern”. It stated that the Applicant was an inpatient following an accident at work on 24 November 2014, that he had multiple injuries including a fractured pelvis and right wrist, both of which had been “surgically fixed” during his admission, and that “[h]e will be unable to travel for at least the next three months.” No other medical evidence about the accident or the Applicant’s treatment or recovery was provided to the delegate in support of the waiver application.
On 28 January 2015 an officer of the Department prepared a Minute in the form of a submission to the delegate in relation to the request for a waiver of condition 8503. The submission summarised the request, referred to the supporting documents, discussed the applicable legislative requirements and included an “assessment” of the circumstances against reg.2.05(4) of the Regulations. The officer was of the view that the circumstances were not those of the kind set out in reg.2.05(4) and that the condition should not be waived. On 3 February 2015 the delegate recorded on the Minute “Agree – not waived. I am not satisfied that [the Applicant’s] circumstances are outside his control”.
Reasons for decision not to waive condition 8503
On 3 February 2015 the delegate wrote to the Applicant notifying him of the decision not to waive the 8503 no further stay condition and providing written reasons for that refusal. Further references to the “reasons” are references to the letter of 3 February 2015.
The delegate referred to s.41(2A) of the Act and set out reg.2.05(4). He stated that he did not accept that since the Applicant was granted the visa subject to condition 8503, circumstances had developed over which he had no control, that resulted in a major change to his circumstances and that were “both” compelling and compassionate.
The delegate summarised the waiver request, recording that the Applicant sought a waiver to remain in Australia with his wife (an Australian citizen), that he had an accident at work in which he fractured his pelvis and right wrist, that his wife was now suffering from psychological conditions following his admission to hospital, and that it was claimed that he was not able to travel back to Pakistan because of reports of bombing in close proximity to where he had lived. The delegate listed the documents provided in support of the request.
Under the heading “Reasons”, the delegate accepted that the Applicant’s claims were of a compassionate nature, as he wished to remain in Australia with his wife. He also accepted that entering into a de facto relationship or marriage, including cohabiting, could constitute a major change to the Applicant’s circumstances. However the delegate continued:
…under current waiver policy, marriage to (or commencing a de-facto partner relationship with) an Australian citizen or resident would not, normally constitute a situation that would be regarded as being beyond your control. The decision for you to enter into this relationship and then subsequently marry was made by you and [your wife] voluntarily and therefore was within your control.
The delegate also accepted that the Applicant’s accident and subsequent hospitalisation was compassionate in nature. However he noted that this accident had occurred while the Applicant was at work, as evidenced in the letter from Dr Skarratt of 18 December 2014. Departmental records were said to indicate that at the time of the accident the Applicant did not hold a visa which allowed him to remain in Australia lawfully or which allowed him the ability to work in Australia. The delegate stated:
The decision for you to work in Australia without a valid visa that gave you permission to work was a personal choice and decision made by you voluntarily in full knowledge of your current immigration status. The subsequent fall you suffered was a direct result of the decision you made to work, therefore the events that led to your accident are considered to have been within your control. If you had not made the decision to work, you would not have incurred the accident that hospitalised you.
The delegate had regard to Dr Skarratt’s letter in relation to the Applicant’s accident and recovery. There is an obvious typographical error in the delegate’s reference to a letter of 18/12/2015 (after an earlier correct reference to the December 2014 date of the letter). The delegate took into account the fact that Dr Skarratt’s letter stated that the Applicant would be unable to travel for at least 3 months (from 18 December 2014), but observed that there was no indication that beyond this point he would not be fit to travel on an aircraft back to Pakistan. The delegate found that the Applicant’s then current condition was only temporary and not a reason that compelled him to remain in Australia indefinitely and suggested that for a waiver to be considered he must give evidence that he was left with little or no alternative other than to remain in Australia. The delegate was of the view that on the medical evidence provided the Applicant would be able to travel once his injuries had healed. Therefore the delegate did not accept that the Applicant would remain unfit to travel back to Pakistan indefinitely and was compelled to remain in Australia.
The delegate considered the claim that the Applicant’s wife was suffering from a psychological condition. He acknowledged that this may cause concern to the Applicant and that her condition could be considered compassionate in nature. The delegate also accepted that, as the letter from the psychologist stated, the wife was “currently suffering from significant stress in the context of her husband’s sudden serious injuries”. The delegate considered that the wife’s condition was understandable, considering her concern for the Applicant and the injuries he had sustained. However the delegate had regard to the fact that the psychologist’s letter did not state that the Applicant’s wife was incapacitated to the degree that she was not able to take care of herself and also to the fact that in her statement she had indicated that she had been invited to live with her brother for support while the Applicant was in hospital. The delegate was satisfied that the Applicant’s wife had both psychological and family support to cope with her stress.
Finally, the delegate acknowledged that the Applicant’s statements regarding his concerns about returning to Pakistan were compassionate in nature. He had regard to policy indicating that the criteria in reg.2.05(4) would be satisfied in circumstances where the decision-maker could be satisfied that an applicant lived in an area that had been directly affected, but that merely coming from an affected country was not in itself sufficient for this concession to apply. The delegate took into account departmental records indicating that the Applicant had arrived in Australia on 2 November 2005 and had not returned to his home in Pakistan since then. He had regard to the fact that the Applicant had not indicated whether the home in Lahore was owned by him or whether he had rented accommodation; that 10 years had passed since the Applicant last lived in this accommodation; and that the Applicant had provided no evidence that proved this property was still vacant and was awaiting his return or as to whether others had settled into the property and no evidence that indicated that he was not able to return to Pakistan and find alternative accommodation with remaining family members. The delegate did not accept that the Applicant was not able to return to Pakistan on this basis.
The delegate was of the view that the Applicant had not provided any information indicating that there had been a major change to his circumstances beyond his control since his visa was granted, that proved he was not able to travel back to Pakistan once he recovered from his injuries, or that he was compelled to remain in Australia.
The delegate determined that “for these reasons” the Applicant’s circumstances did not meet the requirements to waive condition 8503.
These Proceedings
The Applicant sought review of the delegate’s decision by application filed in this court on 26 February 2015. On 26 March 2015 the application was summarily dismissed by Judge Street. The Applicant sought and was granted leave to appeal. The appeal was allowed, the orders set aside and the proceedings remitted to this court (differently constituted) for determination according to law.
After the matter was remitted, I made orders for the filing of a Courtbook, any amended application, affidavit evidence and submissions.
The Applicant filed an affidavit affirmed on 14 January 2016 attaching a statement from his wife addressing matters such as their relationship, inadequacies of their former migration agent in relation to the Applicant’s protection visa application, their wish that he apply for a spouse visa and the impact of her husband’s accident, largely expressed in terms of the impact on her. Also attached were copies of medical reports which post-dated the delegate’s decision and which related to fertility issues for both the Applicant and his wife.
The day before the hearing the Applicant filed written submissions, attaching a January 2017 medical certificate in relation to his wife’s anxiety and depression. The Respondent had already filed pre-hearing submissions. In addition, I gave each of the parties the opportunity to file post-hearing submissions, which they did.
The Applicant relies on the application filed on 26 February 2015. It contains 1 ground, which is as follows:
The department misinterpreted and misunderstood the claim and the difference between compassionate and compelling circumstances.
The Applicant took issue with the delegate’s approach to the matters he had relied on in support of his waiver application.
The concerns that the Applicant and his wife raised in written and oral submissions primarily take issue with the delegate’s failure to find that circumstances had developed that were both compassionate and compelling. The Applicant did not explain the manner in which the delegate was said to have misinterpreted and/or misunderstood the “difference” between compassionate and compelling circumstances. Rather, his concern was expressed as a disagreement with the delegate’s findings that aspects of his claims did not amount to compelling circumstances. It was submitted that the delegate had misinterpreted “compelling” and that the evidence provided in support of the application was convincing and forceful evidence which had been ignored by the delegate.
The Applicant expressed concerns as to whether the delegate had considered aspects of the claims and evidence provided and with the reasonableness of the decision. In one respect the Applicant also took issue with the delegate’s finding about whether circumstances had developed over which the Applicant had no control.
The Applicant’s submissions
The Applicant submitted that the delegate had erred in finding that his accident (a fall at work): “was a direct result of the decision [he] made to work, therefore the events that led to [his] accident are considered to have been within [his] control. If [he] had not made the decision to work, [he] would not have incurred the accident that hospitalised [him]”. The delegate made this finding in the context of addressing the fact that the Applicant voluntarily decided to work without a visa giving him permission to work.
The Applicant submitted that while he had made the decision to work, it was beyond his control that he fell, injured himself and was hospitalised. It was submitted that the delegate had “acted contrary to regulation 2.05(4) as what (sic) happened” as the Applicant had no control over the accident.
More generally, it was submitted that the delegate had failed to take into account as “compelling” what was described as the “terrible incident and accident”. This was a reference to the work accident in which the Applicant suffered significant injury. Reference was also made to his subsequent surgery, complications and his admission to the intensive care unit where he was said to have been placed on life support.
The Applicant and his wife contended that the accident the Applicant had experienced was in itself enough to amount to compelling and compassionate circumstances and that the delegate had failed to realise the seriousness of this accident and the Applicant’s condition or how a “disabled” person would travel back to Pakistan and obtain medical treatment or survive there if he was unable to work.
The delegate was said to have misunderstood how to apply the law and to have failed to “justify how the applicant after the accident, could find employment in Pakistan and live apart from his wife” and without her support.
In addition it was submitted that the delegate had not seriously considered Dr Skarratt’s letter about the Applicant’s inability to travel or how the Applicant would be able to survive in Pakistan having regard to his physical condition and the fact he had no place to live, the terrorism activity in Pakistan and the information about explosions in Lahore said to be have been in the vicinity of the Applicant’s home.
The Applicant also took issue with the delegate’s failure to accept that his wife’s psychological condition (said to be as a result of his fall) was compelling. It was submitted that the delegate had not understood the severity of his wife’s psychological condition and had failed to ask how it developed and what would happen to his wife as a result of any action to deport him.
The Applicant’s wife made submissions to the court about her current psychological condition, but confirmed that the only evidence that had been before the delegate in that respect was the psychologist’s letter of 9 January 2015. While it was acknowledged that this letter was considered by the delegate, the Applicant submitted that the delegate had failed to realise the impact of these circumstances on her life and that of her husband, because he did not consider it properly and did not inquire into the consequences for the Applicant, and for her, if the Applicant had to return to Pakistan.
Further medical evidence in relation to the Applicant’s accident and treatment and evidence about terrorism incidents in Pakistan was attached to affidavits and submissions filed in these proceedings. However the Applicant confirmed that all the information provided to the delegate was included in the Courtbook. There is no suggestion that medical reports and other documents now provided to the court, which do not appear in the Courtbook, were provided to the delegate. Indeed at the hearing the Applicant, through his wife, explained that while they had other medical certificates and evidence about his operations and hospitalisation they had not given this evidence to the delegate. Nor had they provided evidence to the delegate to support the claims made to the court that the Applicant had an ongoing disability or was “disabled”.
The Applicant submitted that if the delegate thought that the evidence he provided was not enough, the delegate should have asked for further evidence to consider the issue properly, but had not done so.
It was also submitted that insofar as the delegate suggested that, on the medical evidence, the Applicant’s condition was temporary and that there was no indication he would not be capable of international travel after the 3 month period, this was unreasonable because the delegate “had (sic) the seriousness of the accident and yet failed to understand how a disabled person with a terrible medical condition would be capable to go back to Lahore where he will be deprived of further medical treatment as a result of the explosions in hometown Lahore”.
In post-hearing submissions the Applicant again submitted that the delegate failed to consider the significance of the accident and its life-threatening impact on him, as well as whether it was safe for him to return to Pakistan. Medical evidence which pre-dated the delegate’s decision was provided to the Court, including information apparently relating to the Applicant’s treatment and discharge from Westmead Hospital, including the circumstances in which he was admitted to and treated in the intensive care unit. However, as indicated, there is no suggestion that such medical evidence was before the delegate. Medical information was also provided in relation to the Applicant’s post-discharge rehabilitation and treatment which was not provided to the Department in support of the waiver application.
The Respondent’s submissions
The Respondent pointed out that the Minister’s power under s.41(2A) of the Act was discretionary and that where, as here, a visa had been granted subject to the no further stay condition (condition 8503), reg.2.05(4) of the Regulations relevantly prescribed circumstances in which the Minister may waive such a condition. It was submitted that such circumstances must exist to enliven the Minister’s power to waive the condition (see Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone (2003) 134 FCR 379; [2003] FCA 1506 and Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1529 at [7]).
The Respondent acknowledged that, while there was no obligation on the decision-maker to provide reasons, in this case it was appropriate to scrutinise for jurisdictional error the delegate’s letter of 3 February 2015 in which he provided reasons. However it was submitted that in such circumstances one would not expect a “dissertation” on the meaning of “compelling”.
The Respondent contended that in the circumstances of this case there was no evidentiary basis for concluding that if there were a jurisdictional error in the internal departmental submission (the Minute) that would have had the effect of infecting the delegate’s decision. Rather, it was submitted that the delegate’s letter had to be considered on its merits as an explanation of what the delegate meant. It was submitted that in circumstances where the delegate had clearly identified the evidence and information submitted by the Applicant in the notification letter, such an approach was consistent with the approach taken in Verlicia at [9].
In relation to the ground in the application, the Respondent submitted that the documents provided to the Court by the Applicant which post-dated the delegate’s decision (in particular a pathology request form, a statement by his wife and various medical documents, including in relation to the couple’s fertility) were of no relevance in establishing jurisdictional error on the part of the delegate.
More generally, the Respondent submitted that without further and better particulars the ground in the application did not raise any arguable jurisdictional error on the part of the delegate. It was contended that the delegate had acknowledged the compassionate nature of the circumstances relied on in support of the request to waive condition 8503 and that his reasoning, as outlined in the notification letter of 3 February 2015, revealed that he clearly understood the nature of the task before him.
It was submitted that while the delegate had accepted that the circumstances were compassionate in nature, it remained for him to be persuaded that they were also compelling as required under reg.2.05(4) of the Regulations. The Respondent submitted that the delegate had considered the Applicant’s claims and evidence and that it was reasonably open to him on the evidence before him to find that the Applicant’s circumstances were compassionate, but not compelling, and hence that reg.2.05(4) was not satisfied.
It was also submitted that in a legislative context in which the phrase “compelling circumstances” arose for determination (such as in reg.2.05(4)) it was not erroneous for the decision-maker, on the evidence before him, to consider whether he was “compelled” to find in favour of an applicant, consistent with the approach taken in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [21]-[24]. While Babicci related to a different provision in the Regulations, the Respondent submitted that such an approach was apposite in the present context.
The Respondent contended that the occurrence of events which were “far-reaching and most heavily persuasive” (see Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21]) was called for in the context of considering whether there were compelling and compassionate circumstances within reg.2.05(4)(a) of the Regulations. It was pointed out that the decision maker had “a broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances” (SZGBR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 824 at [19] citing Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360 at [12]).
In particular, it was submitted that having regard to what the Full Court described in Babicci at [24] as “shades of difference” between the various dictionary definitions of “compelling” and the fact that, on any view, “the circumstances must be so powerful that they lead the decision-maker to make a positive finding” that the condition should be waived (Babicci at [24]), it was open to the delegate to consider whether the Applicant was “compelled to remain in Australia” as a result of the circumstances raised for consideration and to have regard to the fact that he did not accept that the Applicant would remain unfit to travel back to Pakistan such that he was compelled to remain in Australia.
However, the Respondent also submitted that the delegate had not interpreted the concept of “compelling circumstances” as limited to circumstances which compelled an applicant to remain in Australia. Rather, it was submitted that this factor was addressed in the context of the particular waiver application on the evidence before the delegate and did not amount to a misconstruction of the broader concept of “compelling circumstances”. The delegate was said to be of the view that the question of whether the Applicant was compelled to remain in Australia was one aspect of whether there were compelling circumstances.
In support of this proposition the Respondent contended that had the delegate proceeded on the basis that compelling circumstances were limited to circumstances which compelled an applicant to remain in Australia, then one would have expected him to have paid no attention to the wife’s psychological condition, because such circumstances were susceptible of an assessment as to whether or not they were compelling without consideration of whether they were such as to compel the Applicant to remain in Australia. The Respondent acknowledged that the issue of whether there were compelling circumstances had to be considered generally, but submitted that the delegate had done so in considering all of the circumstances raised on behalf of the Applicant, including his wife’s condition.
It was said to be relevant that the delegate was considering whether to waive a “no further stay” condition. It was submitted that it was not surprising that, in considering whether the circumstances were “compelling”, the delegate had regard to whether the circumstances were such as to warrant the Applicant remaining in Australia and in that context had addressed the implications of the accident, the subsequent hospitalisation and the Applicant’s recovery.
The Respondent also submitted that the delegate had demonstrated an understanding and consideration of the concept of “compelling” circumstances in addressing the Applicant’s wife’s condition. It was said to have been open to him to conclude that the circumstances were not sufficient to amount to “compelling” circumstances where the wife was not “incapacitated to the degree that she [was] not able to take care of herself” and had psychological and family support to help her with stress.
In relation to the Applicant’s general submission that the delegate had “failed to consider” whether the circumstances were compelling and compassionate circumstances, the Respondent pointed out that the waiver application (as required under reg.2.05(4)(c)) was presented to the delegate as a very short written request, containing basic details about the Applicant and his visa status, the submission from the Applicant’s wife and limited supporting evidence. It was submitted that if the Applicant now sought to put forward a different case in relation to ongoing implications from the accident or events thereafter, this did not establish jurisdictional error on the part of the delegate.
It was also submitted that the delegate had correctly approached his task by considering both whether the circumstances were compassionate in nature and also compelling. It was pointed out that in Anani v Minister for Immigration [2014] FCCA 899 at [9] it had been stated that “compassionate and compelling circumstances are not the same, and… they must be considered separately”. The Respondent also contended that the general proposition that the application of facts found to statutory words and phrases did not ordinarily form the basis for jurisdictional error ought to be accepted (see Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473; [2001] HCA 10 at [35]-[36] per McHugh J.) Insofar as it was claimed by the Applicant that the decision-maker had failed to understand that his circumstances were both compassionate and compelling, this was said to go no higher than to seek impermissible merits review (see Cohen at [36] per McHugh J).
The Respondent also submitted that the delegate properly had regard to policy. This was said not to be contentious and not indicative of jurisdictional error (see Anani v Minister for Immigration [2013] FCCA 1140 at [33]).
In relation to the concerns raised by the Applicant about whether the delegate considered the evidence he provided, the Respondent submitted that it was clear that while in a written statement provided to the Court the Applicant’s wife had now addressed what happened to her husband after he was first taken to hospital (including the complications he experienced and his time in an intensive care unit), the letter of 18 December 2014 from Dr Skarratt, which was before the delegate, had post-dated these asserted events and provided an objective assessment of the Applicant’s fitness to travel, which was expressed as a view that he would be unable to travel “for at least the next three months”. It was submitted that other evidence now provided to the court which had not been before the delegate did not go to show a legal error of the kind contended for by the Applicant in the application or otherwise.
Insofar as the Applicant submitted that the delegate should have asked him for further information, it was said to be for the Applicant to put such information before the decision-maker as he saw fit. The Respondent submitted that this was not a case in which a duty to inquire of the nature considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 arose. There was also said to be no suggestion that there was any request made to the delegate to contact any of the Applicant’s treating doctors.
In relation to the Applicant’s submission that the delegate should have gone beyond the case that was presented, the Respondent submitted that the delegate could only assess the circumstances raised for his consideration and that there could be no obligation or duty at law to require him to go beyond the case actually presented. It was pointed out that in Thongpraphai at [13]-[14] the Federal Court clearly recognised the nature and limits of the administrative exercise engaged in by the delegate.
The Respondent also addressed the issue of whether the delegate had erred in considering the meaning or applying the concept of circumstances “over which the person had no control”. Insofar as the Applicant had submitted that while he had made the decision to work, it was beyond his control that he fell, injured himself and was hospitalised, the Respondent submitted that the Applicant appeared to misunderstand the reasoning of the delegate. It was contended that, when seen in context, it was apparent that in stating “[T]he subsequent fall you suffered was a direct result of the decision you made to work, therefore the events that led to your accident are considered to have been within your control. If you had not made the decision to work, you would not have incurred the accident that hospitalised you” (emphasis added) the delegate was recognising that there was a chain of events. It was submitted that this did not reveal a misconstruction or a misunderstanding of the law, insofar as reg.2.05(4)(a) relevantly provides that “since the person was granted the visa... compelling and compassionate circumstances have developed… over which the person had no control.” It was submitted that the phrase “circumstances have developed” in reg.2.05(4)(a) permitted the delegate to examine the developing chain of events and consider whether or not the Applicant had control over the sequence of events and that in proceeding in this manner the delegate did not misunderstand the legislation or misapply the law to the facts. Attention was drawn to the fact that, in any event, the delegate had also found that the Applicant’s current condition as a result of the accident did not amount to compelling circumstances.
The Respondent submitted that insofar as the Applicant had made submissions about having a “disability”, there was no evidence before the delegate to support such a claim. Rather, the medical evidence before the delegate was said to be to the contrary, as recognised in the delegate’s observation (on the basis of the letter from Dr Skarratt) that while the Applicant would be unable to travel for at least 3 months from December 2014 there was no indication that beyond that point he would not be fit to travel on an aircraft back to Pakistan. It was said to be on that evidence (and in the absence of any evidence to the contrary) that the delegate had concluded that the Applicant’s current condition was “only temporary and not a reason that compels [him] to remain in Australia indefinitely” and had not accepted that the Applicant would remain unfit to travel back to Pakistan indefinitely and so was compelled to remain in Australia. The Respondent pointed out that insofar as the Applicant now asserted that there was contrary and more recent information, the delegate could only consider the claims that had been put on the basis on which they had been put to him and the evidence provided to him.
Consideration
As the Respondent submitted, the precondition to the exercise of the Minister’s power to waive condition 8503 is that reg.2.05(4) is satisfied. As pointed out by Moore J in Verlicia at [7] reg.2.05(4) prescribes the circumstances “which must exist to enliven the power to waive.” Flick J stated in Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [11] that unless the condition precedent in r.2.05(4) is satisfied no occasion arises for the exercise of the discretion to exercise the power to waive condition 8503 conferred by s.41(2A) of the Act (and see also Auva’a at [8] and Verlicia at [7]).
In this case, as in Verlicia, it is unnecessary to consider the scope of the s.41(2A) discretionary power and matters relevant to its exercise. No occasion arose for the exercise of that power as the decision-maker was of the opinion that the prescribed preconditions in reg.2.05 were not met.
Under reg.2.05(4) compelling and compassionate circumstances must have developed since the person was granted the visa subject to condition 8503 (in this case since this Applicant was granted his subclass 456 visa on 5 April 2005) over which the applicant had no control and that resulted in a major change to his circumstances.
I note first that although there is no provision in the Act or Regulations obliging the Minister or his delegate to provide written reasons for a decision not to waive a visa condition such as condition 8503 (see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [25]-[26] per Allsop J, as his Honour then was), in this case the delegate did provide written reasons in the notification letter of 3 February 2015. This permits consideration being given to those reasons in order to determine, relevant to the concerns expressed by the Applicant, the matters considered by the delegate, and, in particular, whether the delegate failed to consider any submission or evidence in a manner constituting jurisdictional error or otherwise fell into jurisdictional error (see Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 at [55]). As the Respondent submitted, in these circumstances, even if there was error in the internal submission to the delegate (although there was no such contention), this would not in itself establish jurisdictional error such as to infect the delegate’s decision.
Before turning to the issues raised by the Applicant as to whether the delegate considered the evidence and claims he made, it is convenient to consider the ground in the application which, as expressed, raises a legal issue as to whether the delegate misinterpreted or misunderstood the concept of “compassionate and compelling circumstances” in reg.2.05(4) of the Regulations.
Insofar as it was claimed that the delegate had misinterpreted and misunderstood the difference between “compassionate” and “compelling” circumstances, this ground is not made out. On the contrary, it is clear from the reasons provided by the delegate in the notification letter that he understood that the concepts of “compassionate” and “compelling” are separate (see Anani [2014]) and different and had regard to the fact that under reg.2.05(4) it was necessary that the circumstances be both compelling and compassionate.
The delegate in this case referred, correctly, to s.41(2A) and reg.2.05(4) and, while there may be some lack of clarity in the concluding part of the reasons, he summarised clearly the basis for his reasons for decision in stating early in the notification letter:
Specifically, it was not accepted that since you were granted the visa that was subject to the 8503 condition that circumstances have developed over which you had no control and resulted in a major change to your circumstances and are both compelling and compassionate (emphasis added).
In other words, the delegate recognised that it was necessary for circumstances to be both compassionate and compelling. This is further indicated by the fact that the delegate accepted that various aspects of the Applicant’s claims were of a compassionate nature, but was not satisfied that such circumstances were compelling. As stated in Anani [2013] at [29]:
In other words, it is for the delegate to form his own view as to whether or not the circumstances relied on by the Applicant are compelling and compassionate. The requirements of reg 2.05 are cumulative, hence even if some of the circumstances are found to be compassionate, that would not suffice if such circumstances are not also compelling circumstances over which the Applicant had no control (see Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [16] per Flick J).
No issue arises as to the delegate’s consideration of the meaning of “compassionate”. As to the meaning of “compelling” circumstances, in Babicci the Full Court of the Federal Court stated (at [21]-[24]):
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. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge’s view of this.
In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
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 reg 1.20J(1) should be waived.
As the Respondent pointed out, the Full Court made the point in Babicci that on any view of the meaning of “compelling” “the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition… should be waived” and while in Babicci a different provision (reg.1.20J(1)) was in issue, these remarks are also of relevance in the context of reg.2.05(4).
Moreover, as their Honours stated at [21] in Babicci “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.” In Babicci, the Full Court proceeded on the basis that in the circumstances of that case, the decision-maker had asked the correct question in proceeding on the basis that compelling circumstances “were those which “forced or drove” or “compelled” a particular result” [at 23].
As to the concept of “circumstances”, as pointed out by Dowsett J in Auva’a 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 [Minister’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.
In this case, having regard to the nature of the matters put before the delegate for consideration, it has not been established that the delegate misconstrued or misunderstood the meaning of “compelling circumstances” or, indeed, confined it in a manner demonstrating a misunderstanding or misapplication of the law to circumstances which compelled an applicant to remain in Australia. Such an approach would be inconsistent with the delegate’s consideration of the impact of the wife’s psychological condition and whether such circumstances could amount to compelling circumstances that resulted in a major change to the Applicant’s circumstances. Further, while accepting that the accident and subsequent hospitalisation were compassionate in nature, the delegate considered whether the Applicant’s condition (which, on the evidence before him, was only temporary) was a reason that compelled the Applicant to remain in Australia indefinitely. In this context the delegate had regard to the absence of any indication that the Applicant would not be fit to travel on an aircraft back to Pakistan beyond three months from December 2014.
As the Respondent submitted, this approach does not show that the delegate regarded “compelling circumstances” as necessarily limited to those that compelled a person to stay in Australia. Rather this factor was addressed in the context of the particular waiver application on the claims and evidence presented to the delegate. No jurisdictional error is established in relation to the delegate’s consideration of whether any of the circumstances relied on were “compelling”.
Insofar as the Applicant now makes broader submissions to the court about his circumstances and puts other medical evidence before the court in this respect, this does not establish that the delegate erred in failing to have regard to material that was not put before him prior to the waiver decision.
The delegate properly had regard to policy in considering whether the circumstances were characterised by necessity such that the Applicant was faced with a situation where there was little or no alternative but to seek to remain in Australia (see Anani [2013] at [33]). This approach is not indicative of jurisdictional error, whether as a misunderstanding or misinterpretation of the law or otherwise. The delegate did not fail to address the question arising under reg.2.05(4).
The same may be said in relation to the delegate’s consideration of whether the other aspects of the claims made by the Applicant were compelling. In that context it is relevant to bear in mind that, in Thongpraphai, in considering whether “compelling and compassionate circumstances” had developed since the grant of a visa, O’Loughlin J stated at [21] “[t]here is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive”. Moreover, the decision maker has a “broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances” (see SZGBR at [19] citing Nguyen at [12]).
The delegate understood that the word “compelling” was used in the context of reg.2.05(4) in its ordinary sense and had to be considered in light of the facts of the case presented to him, consistent with the approach taken in Thongpraphai (and also see Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 at [25]). As was pointed out in Terera at [25] by Kenny J:
…the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the 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.
The delegate has not been shown to have applied a wrong legal test or to have asked himself or decided a wrong legal question in relation to the meaning of compassionate and compelling circumstances.
The Applicant also took issue with the delegate’s approach to the concept of “circumstances… over which the person had no control” insofar as it related to his work accident. Had the delegate simply stated that the accident itself was within the Applicant’s control, there may be strength in the Applicant’s submission. However, as the Respondent submitted, read in context it is clear that the delegate was, consistent with the wording of reg.2.05(4), considering whether “circumstances had developed” over which the Applicant had no control in finding that “the events that led to your accident are considered to have been within your control”. It has not been established that the delegate erred in his understanding or application of the concept of “circumstances have developed over which the person had no control” in a manner constituting jurisdictional error. For the sake of completeness I note that even if, contrary to my view, the manner in which the delegate expressed himself in relation to the “control” issue could be seen as involving some misunderstanding or misapplication of the law in that respect, the requirements of reg.2.05(4) are cumulative. The delegate went on to consider, in relation to the accident itself and its subsequent impact on the Applicant, whether the Applicant’s then current condition was such as to amount to compassionate and compelling circumstances.
It was also asserted that the delegate “misunderstood” the claim. Insofar as the Applicant submits that his circumstances were more serious than, or other than, what was considered by the delegate (and in this respect relies on material that was not before the delegate) this does not establish jurisdictional error on the part of the delegate. There is no evidentiary basis for any assertion that the delegate failed to consider any of the Applicant’s claims or evidence.
Insofar as the assertion of misunderstanding amounts to a disagreement with the approach taken by the delegate as to whether on the facts and evidence before him he was satisfied that the circumstances were “compelling”, the mere fact of disagreement with the delegate’s conclusion or reasoning is not indicative of error, but seeks impermissible merits review.
The Applicant’s disagreement with the delegate’s failure to accept that various aspects of his claims were compelling does not establish jurisdictional error. In relation to the accident and recovery, the Applicant’s concerns are based to some extent on the fact that he had other medical evidence and, according to his wife, now claims to have a “disability”. However the medical evidence provided to the delegate in relation to the consequences of the accident was limited. The letter from Dr Skarratt of 18 December 2014 (which the delegate considered) did refer to the Applicant’s then current hospitalisation, but also stated that his fractured pelvis and wrist had been surgically “fixed” and that he would be unable to travel for at least 3 months. There was no indication that the condition was other than temporary (albeit there clearly had been a significant injury) or that beyond a limited period (expressed as at least 3 months) the Applicant would not be fit to travel or would be compelled to remain in Australia indefinitely. Nor was there any evidence before the delegate that the Applicant would be unable to obtain any required treatment or medication (none of which was identified) were he to return to Pakistan. Nor was there evidence before the delegate as to any other assistance he required that would not be available in Pakistan.
Insofar as the Applicant takes issue with the delegate’s consideration of his wife’s psychological condition and the concern that it may cause him, the focus of the statements and submissions from the Applicant was primarily on the impact on her. I note that insofar as the concerns expressed in these proceedings (in this or any other respect) related to the circumstances of the Applicant’s wife, reg.2.05(4) refers to circumstances that have resulted in a major change to the circumstances of the person whose visa was subject to condition 8503. The delegate did not misunderstand or misinterpret the claims put to him in considering whether the wife’s condition (which he accepted may cause the Applicant concern) amounted to compassionate and compelling circumstances within reg.2.05(4). The delegate considered the information provided in that respect.
The concerns raised about the wife’s present condition do not demonstrate any legal error on the part of the delegate.
As to the Applicant’s concerns about returning to Pakistan, it was not entirely clear on the material in the courtbook whether the complaints about bombing and terrorist activities in Lahore in the wife’s statement provided in support of the waiver application related to events in the vicinity of her former home or the Applicant’s former home. In submissions to the Court this home was described as the family home and concerns about return to Pakistan were expressed in terms of the Applicant returning to his hometown. There has been no suggestion that the delegate misunderstood the claims in that respect.
On the limited material before the delegate, he has not been shown to have failed to consider any integer of the Applicant’s claims. It was reasonably open to him to have regard to policy and to be of the view that merely coming from an affected country was not sufficient to establish compelling circumstances and, indeed, to have regard to the limited evidence before him in considering whether he could be satisfied that the Applicant had lived in an area that has been directly affected, having regard to the fact that the Applicant had been in Australia for nearly 10 years at that time and the limited evidence provided to the delegate in relation to the Lahore property.
The Applicant’s disagreement with the delegate’s failure to accept that he was not able to return to Pakistan is not indicative of jurisdictional error. The fresh evidence now provided to the court about events and circumstances in Lahore does not establish jurisdictional error on the part of the delegate.
Insofar as it is now contended that the delegate failed to consider that the Applicant was a “disabled person with a terrible medical condition” and hence that he would be unable to go back to Lahore, there was no evidence or submission put to the delegate that the Applicant was disabled. Doctor Skarratt’s evidence is not supportive of any such contention. If the Applicant’s claim is that his circumstances have changed (and that he is now disabled) that may be a basis for a further waiver application (but note reg.2.05(4)(b)) but it does not establish jurisdictional error on the part of the delegate on the information before him.
The Applicant and his wife told the court that they did not appreciate that all medical and other evidence should have been provided to the delegate. However this is not indicative of jurisdictional error on the delegate’s part
The Applicant submitted that the delegate should have asked him for further information in relation to his claims. However, as the Respondent submitted, it was for the Applicant to put such information before the decision-maker as he saw fit. There is nothing in the circumstances of this case to indicate that there was a critical fact, the existence of which was easily ascertained, such as to impose any duty on the delegate to inquire of the nature considered in SZIAI. Nor is there any evidence that the Applicant made any such request to the delegate, or that he sought further time to provide additional information. The delegate could only assess the circumstances raised for his consideration. There was no obligation or duty at law in this case to require him to go beyond the case actually presented (see Thongpraphai at [13]-[14]).
The Applicant may also be seen as raising a concern that the delegate’s reasoning was legally unreasonable. However there is no basis for any such assertion. There was an evident and intelligible justification for the delegate’s conclusions in relation to each aspect of the Applicant’s claims. This is not a case in which the fact-finding was conducted without any logical or probative basis or was plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of s.41(2A) and the prescribed circumstances in reg.2.05(4) (see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11).
As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 9 February 2018
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