SZRSX v Minister for Immigration
[2017] FCCA 2580
•2 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRSX v MINISTER FOR IMMIGRATION | [2017] FCCA 2580 |
| Catchwords: MIGRATION – Application of review of a decision of the Minister’s delegate refusing a no further stay waiver request – whether the Minister correctly applied the relevant law in relation to compelling and compassionate circumstances – whether the applicant was afforded procedural fairness – the requirements of the regulation are cumulative – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41, 476 Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: Verlicia v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 1529 Thongpraphai v Minister for Immigration [2000] FCA 1590 |
| Applicant: | SZRSX |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2394 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 May 2017 |
| Date of Last Submission: | 3 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Ms N Blake of Clayton Utz Lawyers |
ORDERS
The application made on 6 September 2016 is dismissed.
The applicant pay the respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2394 of 2016
| SZRSX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application made on 6 September 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the delegate of the Minister made on 15 August 2016, which refused the applicant’s request for a further waiver of the “no further stay” condition (8503) attached to her visa.
Orders were made by a Registrar of the Court on 1 December 2016 setting the matter down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Orders were made which, amongst other things, gave the applicant the opportunity to file any amended application and further evidence by way of affidavit. No amended application or further evidence by way of affidavit has been filed by the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”, “RE1”).
Background
The relevant background to this case is set out in the Minister’s written submissions filed on 26 April 2017. I am satisfied that this is a fair summary of the material in the Court Book and the relevant paragraphs are as follows ([4] – [8] of the Minister’s written submissions):
“[4] The Applicant is a citizen of Fiji. She arrived in Australia on 16 May 2011 as the holder of a Visitor TR676 visa (Tourist visa), which was imposed with Condition 8503.
[5] On 12 July 2011, the Applicant lodged a Protection visa [application] based on alleged sexual assaults in Fiji that she claimed were perpetrated by her workplace supervisor (first Protection visa application). The first Protection visa application initially also included the Applicant's ex-husband, who later filed his own claims. On 30 September 2011, this application was refused by a delegate of the Minister. On 20 March 2012, the delegate's decision was affirmed by the (then) Refugee Review Tribunal (RRT). On 11 February 2013, the Applicant's application for review before the then Federal Magistrates Court was dismissed.
[6] On 14 February 2014, pursuant to the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the Applicant made a second application for a Protection visa. On 17 June 2014, that application was refused by a delegate of the Minister. On 13 May 2015, the Administrative Appeals Tribunal affirmed the delegate's decision. On 22 March 2016, the Applicant's application for judicial review before the Federal Circuit Court of Australia was dismissed. On 3 August 2016, the Applicant's application for an extension of time and leave to appeal to the Federal Court of Australia was dismissed.
[7] On 15 August 2016, the Applicant sought a waiver of the 'No Further Stay' Condition 8503. On 31 August 2016, the Delegate refused that Application. On 6 September 2016, the Applicant commenced the present proceedings.
[8] On 24 November 2016, the Applicant lodged a third protection visa application (third Protection visa application) with her ex-husband. On 14 December 2016, a delegate for the Minister refused the third Protection visa application on the basis of s.48A of the Act, which prevents the making of further applications for protection visas. On 3 January 2017, the applicants filed an application for review with the Federal Circuit Court in respect of that decision.”
As set out above, the applicant is a citizen Fiji. She arrived in Australia on 16 May 2011 as the holder of a tourist visa. That visa was granted on the basis of condition 8503. This condition, with reference to s.41(2)(a) of the Act, is:
“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.”
Pursuant to s.41(2A) of the Act, the Minister may waive this condition. The circumstances in which that can done are set out at reg.2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”):
“(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph (41)(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person's circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.”
As set out above, the applicant has had a long history of seeking to remain in Australia since her arrival as a visitor in 2011. Relevant to the current proceedings, she requested the waiver of the condition on 15 August 2016 (CB 1).
The applicant advanced two reasons for this request. One, to enable her to lodge an application for a partner visa. Two, that her life would be “at risk” if she returned to Fiji because of the reasons she had set out in an earlier application for a protection visa (CB 2).
The delegate found that in the circumstances presented, the requirements of reg.2.05(4)(a) of the Regulations were not satisfied. Such satisfaction was required to enliven the delegate’s discretion to grant the waiver (see Verlicia v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 1529 at [7] per
Moore J).
Relevantly, the delegate made the following findings with respect to the circumstances put by the applicant. One, since the applicant’s intention was to apply for a partner visa with her former husband, their current relationship was not a circumstance that had developed since she was originally granted a tourist visa (CB 27).
Two, that the circumstances described in the Refugee Review Tribunal decision of 2012 (“the RRT decision”), and the applicant’s application to the Court in 2013, occurred prior to the granting of her tourist visa. They therefore could not have resulted in any major change to the applicant’s circumstances (CB 27).
Three, that the decision to apply for a partner visa with her former husband was a circumstance over which the applicant had control (CB 27).
Finally, that the circumstances put by the applicant, in particular the alleged sexual assaults that occurred in Fiji, were compassionate, but not compelling (CB 27).
The Application before the Court
The grounds of the application to the Court are in the following terms:
“1. The Delegate of the Minister failed to understand that the circumstances developed after my visa was granted and that major change to my circumstances has occurred. The Delegate ignored the attachments which were provided with my application and as a result misunderstood the major change of my circumstances.
2. The Department asked me to depart Australia and I wish to exercise my rights in the Court as I believe that the Delegate of the Minister failed to accept my circumstances which meet the description of compelling.”
The applicant appeared in person at the hearing before the Court. She was assisted by an interpreter in the Fijian-Indian language. She was granted leave to tender written submissions in Court. Her oral explanation of her case to the Court, it must be said, was unclear, however the written submissions provided some basis on which to understand her case.
Ground one asserts that the delegate “failed to understand the circumstances” that had developed since the applicant’s tourist visa was granted, and further, that these changes were “major”. Further, that the delegate “ignored” supporting documentation that the applicant had provided with her request for the waiver. On the evidence, this appears to be copies of the RRT decision relating to the applicant, electricity bills, copies of her passport, and rent receipts (CB 3 to CB 23). The complaint is that the delegate therefore misunderstood the major changes in the applicant‘s circumstances.
Before the Court, at its highest, the applicant explained that the delegate failed to understand that the change in her circumstances was that, as a woman in Fiji, she lived in fear. This was shown by the applicant’s experiences in Fiji (which were set out earlier in her matter before the Tribunal), and that in Australia, she did not live in fear because women are “respected”.
As stated above at [8], in her request for the waiver of the “no further stay” condition that attached to her visa, the applicant described the reasons for seeking the waiver as follows.
One, that she wanted to lodge a partner visa application in Australia. Two, that if she could not remain in Australia and had to return to Fiji, her life would be “at risk”.
The delegate found, in the context of the applicant’s desire to lodge an application for a partner visa, that the applicant’s claimed current relationship was with her “ex-husband”, and was not a change in circumstances that had developed since the grant of the visa, given that the applicant had been in a relationship with the same man in Fiji, before the tourist visa was granted (CB 27.4).
The applicant’s other reason for seeking the waiver, was that she feared harm on return to Fiji as a woman, and for the reasons set out in her claims made in her application for a protection visa involving alleged sexual assault (CB 2).
The delegate acknowledged that the alleged sexual assault was a compassionate factor. However, he did not accept that the circumstances presented by the applicant were compelling (with reference to s.41(2A) of the Act and reg.2.05(4) of the Regulations, and see CB 27.7 to CB 28.3). The delegate’s finding was reasonably open on what was before him. No legal error is apparent in this regard.
The second complaint in ground one is that the delegate “ignored” the documents the applicant provided in support of her waiver request.
These documents fall into two categories. First, the RRT decision in relation to the applicant’s unsuccessful application for a protection visa. The applicant’s complaint, that the delegate ignored this document, must be rejected at a factual level. The delegate referred to the Tribunal’s decision record as “the Refugee Review Tribunal letter dated 20 March 2012 that you have presented to support your claims” (CB 27.9). In context, given the identical date and the absence of any other evidence to indicate anything to the contrary, the delegate must have been referring to the Tribunal’s decision record, which the applicant lodged with her request for a waiver (at CB 12 to CB 23). There is no reference in the applicant’s waiver request form to any other “letter”.
In any event, I agree with the Minister that the delegate stated in his decision record that he “considered” (amongst other things) “documents and information” provided by the applicant (CB 26.6).
This included the second category of documents which were identified by the applicant herself in her waiver request as follows (see CB 2):
“- Rent Receipts
- Copy of passport
- Electricity Bills”
It must be said that it is difficult to see how the applicant’s rent receipts, copy of her passport, and electricity bills were relevant to the statutory questions that s.41(2A) of the Act, and reg.2.05(4) of the Regulations, required the delegate to consider.
In the circumstances, I agree with the Minister, that on the evidence, it is not reasonably arguable to say that the delegate did not consider these documents to the extent that he was required to do so.
The delegate stated that he “considered” all of the documents that the applicant had presented (CB 26.5). In the circumstances, it is reasonable to find that no further specific reference was made to them by the delegate because they were not relevant to the questions posed by the Act or the Regulations. No legal error is indicated in ground one.
Ground two can only be properly understood as a request for the Court to engage in impermissible merits review.
On what is before the Court, there is nothing to indicate the delegate misunderstood the relevant law in relation to “compelling circumstances”, or misapplied it. The delegate’s use of the words “sufficiently forceful” indicates that he was aware of relevant authority on this issue (CB 27.8). As the Minister submits, compelling circumstances are those that are “far reaching and most heavily persuasive” (Thongpraphai v Minister for Immigration [2000] FCA 1590 at [21] and see [20] of the Minister’s written submissions). The delegate’s findings in this regard, again, were reasonably open to him on what was before him. No jurisdictional error is revealed by ground two.
In his written submissions at [21], the Minister fairly raised the following. The delegate found that the applicant’s “current relationship is with [her] ex-husband” (CB 27.3). The Minister says that this finding does not appear to have been drawn from information provided by the applicant to the delegate. Rather, it was presumably drawn from other departmental records.
This raises the question of whether the applicant was denied natural justice by the delegate in circumstances where the delegate may have been required to “advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at [30] as referred to in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [29]).
The Minister provides two answers to this. One, that the delegate’s finding was an objective statement of fact and there was no practical injustice on the part of the applicant as a result of the absence of an opportunity to respond to that fact. The applicant would “obviously” have “known who her current partner” was (see [22] of the Minister’s written submissions and the authority cited therein).
Two, even if the delegate did err, in any event, he rejected the applicant’s request for the waiver on separate and independent grounds. The requirements of reg.2.05 of the Regulations are cumulative (see Anani v Minister for Immigration [2013] FCCA 1140 at [29]). The delegate found the applicant’s circumstances were not compelling, did not amount to a “major change”, and were circumstances under her control. Each of these findings would preclude the delegate’s discretion from being enlivened ([23] – [24] of the Minister’s written submissions).
Before the Court, the applicant confirmed that the person referred to in her request to waive the condition was her former husband. But the issue raised by the Minister focuses on the time of the delegate’s decision. That is, whether it was reasonable for the delegate, at that time, to advise the applicant of the intention to draw this conclusion in circumstances where it was not obviously open on the known material.
At the time of the making of her request for the waiver, the applicant stated that one of the reasons for the request was so that she could lodge an application for a partner visa.
At the same time, the applicant provided a copy of the RRT decision record in relation to her previous application for a protection visa to the delegate.
That decision record, albeit dated some years earlier, records that when the applicant lodged her application for the protection visa, her former, or “ex” husband, with whom she had entered Australia, was included as a member of her family unit (see [21] - [22] at CB 14). He completed a “Part D” form included with her protection visa application.
There is a possibility that the delegate may have relied on the Tribunal’s decision record to find that the applicant’s former husband was the person relevant to her proposed partner visa application.
However, it is of greater probability that the delegate relied on information obtained from “relevant information held on [d]epartmental files” to which he said he had regard (CB 26.6). This is because the RRT decision was made over four years earlier, and also reveals that, even at that time, the parties were not living together.
I find, on balance, that the delegate did rely on information obtained from departmental records and not from the applicant in relation to the waiver request.
The Minister argues that at the relevant time (being when the applicant made her waiver request), the applicant would have known who her “current” partner was. The absence of an opportunity to respond to that information therefore would not impose any “practical injustice” to the applicant (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]).
In the circumstances of this case, what must be remembered is that procedural fairness is not about the outcome, but the process. That is, did the delegate act in a procedurally fair way.
The delegate found that the applicant’s circumstances (as at the time of its decision), had not “developed” since the tourist visa was granted. That is because the delegate proceeded on the basis, and found, that the partner visa application involved the applicant’s former husband. However, the Minister has not put any evidence before the Court now, of the applicant’s state of knowledge as to what other information the delegate may have relied upon in relation to this issue, at that time. On the evidence before the Court, the applicant was not given the opportunity to address this issue.
However, I agree with the Minister that notwithstanding any error the relief sought by the applicant should be refused. The consideration relevant to reg.2.05(4) of the Regulations involves the existence of “compelling and compassionate” circumstances. The delegate found the alleged sexual assault in Fiji was a compassionate factor, but also found that the circumstances said to prevent her returning to Fiji were not compelling.
I agree with the Minister that the circumstances in which the condition may be waived (with reference to reg.2.05(4) of the Regulations), require that since the tourist visa was granted, “compelling” and “compassionate” circumstances must have developed. That is, both requirements must be satisfied. The circumstances must be such that the applicant had no control over them, and must have resulted in major changes to her circumstances. These are requirements which must also be satisfied.
The delegate found that the applicant’s circumstances at the time of the waiver request were not compelling, did not amount to a major change in her circumstances, and were circumstances over which the applicant had control.
These findings, separate to whether circumstances have developed since the visa was granted in relation to her proposed partner visa application, are absent legal error. As the Minister submits, these findings are independent of the legal error made by the delegate in relation to the issue of the prospective partner. To be granted the waiver the applicant was required to meet all of the requirements of reg.2.05(4) of the Regulations. The delegate’s finding that her circumstances were not compelling meant that the applicant could not satisfy reg.2.05(4) of the Regulations. As such, the relief sought by the applicant should be refused.
Conclusion
It is appropriate to make an order dismissing the application. I will make that order.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 November 2017
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