SZLPH v Minister for Immigration - [2018] FCCA 231

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:

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.…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] FCCA 231
Decision Date: 9 February 2018

CaseChat Overview and Summary

The applicant, SZLPH, sought judicial review of a decision by a delegate of the Minister for Immigration not to waive the "no further stay" condition imposed on their visa. The dispute centred on whether the delegate had committed a jurisdictional error in assessing whether compelling and compassionate circumstances existed, as required by regulation 2.05(4) of the *Migration Regulations 1994* (Cth). The matter was heard by Judge Barnes in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's assessment of compelling and compassionate circumstances, for the purpose of waiving the "no further stay" condition, was vitiated by jurisdictional error. This required the Court to consider the scope of the delegate's duty in evaluating such circumstances and whether the delegate had failed to take into account relevant considerations or taken into account irrelevant ones, thereby misconstruing the nature of the power conferred by regulation 2.05(4).

Judge Barnes found that the delegate had made a jurisdictional error. The reasoning focused on the delegate's failure to adequately consider the applicant's personal circumstances, particularly the impact of a serious medical condition on their ability to depart Australia. The Court held that the delegate had applied an overly restrictive interpretation of "compelling and compassionate circumstances," effectively requiring a level of urgency or severity that was not mandated by the regulation. The delegate's approach was found to have unlawfully narrowed the scope of the discretion vested in them, leading to an erroneous decision.

Orders