SZRSX v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 198
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZRSX v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 198
File number(s): SYG 850 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 12 February 2024 Catchwords: MIGRATION – application for extension of time to bring proceeding – refusal – relevant considerations
MIGRATION – tourist visa – “no further stay” condition – application for waiver of condition - refusal
Legislation: Migration Act 1958 (Cth) ss 41, 474, 477
Migration Regulations 1994 (Cth) reg 2.05
Cases cited: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Number of paragraphs: 21 Date of hearing: 12 February 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms K. Morris Solicitor for the Respondent: Clayton Utz ORDERS
SYG 850 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZRSX
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time within which to bring proceedings be refused.
2.The application be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of Fiji who arrived in Australia on 16 May 2011 on a valid Tourist (Class TR) subclass 676 visa which imposed a “No further stay” condition precluding her from the grant of any further substantive visas for the duration of her stay in Australia, other than a protection visa (8503 Condition). On 23 September 2021 she lodged an application with the Department of Home Affairs (Department) requesting a waiver of the “No further stay” condition. That was her second such application. The applicant had remained in Australia continuously since her arrival. On 26 April 2022 the applicant’s second waiver application was refused by a delegate (Delegate) of the first respondent (Minister) and she has applied to this Court for judicial review of the Delegate’s decision.
The application for judicial review was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (Cth) (Act) and the applicant has applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the application for an extension of time within which to bring this proceeding will be refused and the substantive application will be dismissed.
RELEVANT LEGISLATION
At the time of the visa application, condition 8503 under the Migration Regulations 1994 (Cth) (Regulations) provided:
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.
At the time of the Delegate’s decision on 26 April 2022, the Act relevantly provided as follows:
41Conditions on visas
(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
…
(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).
…
At the time of the Delegate’s decision on 26 April 2022, the Regulations relevantly provided as follows:
2.05 Conditions applicable to visas
…
(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.
…
BACKGROUND FACTS & MIGRATION HISTORY
The relevant events in the applicant’s migration history, the previous judicial review proceedings and the waiver application the subject of this proceeding were summarised in the Minister’s written submissions in the following terms which I adopt:
5. The applicant, on 12 July 2011, 14 February 2014, and 24 November 2016, made applications for a protection visa. Those applications were unsuccessful, and the related judicial review proceedings filed by the applicant were finalised in or around August 2017.
6. On 15 August 2016, the applicant first sought a waiver of the 8503 Condition. That application was refused on 31 August 2017, however that refusal was later set aside: SZRSX v Minister for Immigration and Border Protection [2018] FCA 810. Following remittal, on 13 February 2019, that application was again refused by a delegate of the Respondent. The subsequent judicial review proceedings were unsuccessful: SZRSX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1065.
7. On 3 September 2021, her Honour Justice Jagot made orders dismissing the applicant’s application for judicial review in respect of the 2016 waiver application. Relevantly, as summarised by her Honour in SZRSX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1065 at [6], in respect of that first application:
“The delegate considered that: (a) the applicant’s decision to enter into a relationship and lodge a Partner visa was a personal choice and not a circumstance over which the applicant had no control, (b) the applicant’s claim that her life would be at risk in Fiji was a circumstance over which the applicant had no control, (c) the applicant’s desire to remain with her partner and her fear of returning to Fiji involve compassionate circumstances, (d) the applicant’s desire to remain with her partner, given the lack of additional supporting information, is not sufficiently forceful to constitute a compelling circumstance, and (e) based on the available information, the applicant’s claimed fear for her life if she returned to Fiji is not sufficiently forceful to constitute a compelling circumstance. As a result, the delegate was not satisfied that the prescribed circumstances in reg 2.05(4) existed and the waiver application was refused.”
8. On 23 September 2021, the applicant made a second application for waiver of the 8503 Condition. In that application, the applicant:
a. noted that she had previously applied for a waiver of the 8503 Condition;
b. noted that she had previously raised with the Department her claims to fear harm if returned to Fiji and her previous protection visa applications;
c. requested that the Department consider her de facto relationship with an Australian citizen and enclosed related documents; and
d. enclosed a copy of SZRSX v Minister for Immigration and Border Protection [2018] FCA 810.
9. On 2 March 2022, the Department of Home Affairs wrote to the applicant requesting further information in respect of her request for a waiver of the 8503 Condition. Amongst other matters, that letter requested information as to “how the reasons for a waiver request in 2021 are substantially different to the reasons for the waiver request in 2016?”.
10. On 18 March 2022, the applicant responded to that request, in which she again requested consideration be given to her de facto relationship and her fear of harm if returned to Fiji. The applicant also enclosed documents relating to her de facto relationship (some of which had previously been provided). The applicant did not directly state how the reasons for the 2021 request differed from the 2016 request. Instead, she stated “Yes I submitted a request for waiver in 2016 and now in your request with further fresh evidence”.
11.On 26 April 2022, the Delegate determined to refuse the second application for a waiver of the 8503 Condition.
…
(References omitted)
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of decisions in respect of which this Court has jurisdiction. At the time of the Delegate’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
…
Because the Delegate’s decision was dated 26 April 2022, the applicant had until 31 May 2022 to commence this proceeding. The application was not filed until 4 June 2022 and so it was brought four days out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for her delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. In that regard, I note the recent High Court authority of Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [18], to the effect that the Court in considering such matters is not limited to an impressionistic assessment.
Satisfactory explanation for delay
In her application commencing this proceeding, the applicant stated that:
1.When I applied to the Federal Circuit and Family Court it was within the time. My application was originally refused on 26/4/2022 and I applied within 35 days and precisely on 28/5/2022. For some reasons and technical problem with extra documents for Exemption from Paying Court Fees I now request that the honourable Court accept my application to be filed according to the court's request.
No documentary evidence corroborative of those assertions was provided by the applicant, nor were those facts deposed to in the applicant's affidavit filed in support of the application. Further, it does not appear that the Court's records support the assertion. I place little weight on the latter, but I place considerable weight on the former issues and find that there is no evidence before the Court that the applicant has a satisfactory explanation that she endeavoured to file the initiating application before the limitation period expired.
I conclude that the applicant has not demonstrated that she has a satisfactory explanation for the delay in commencing the proceeding.
Merits of substantive application
In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a departmental decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant decision of the Delegate is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial.
I have concluded that the present applicant has not demonstrated that.
The Delegate’s decision and reasons
The Delegate’s findings and reasons in support of the decision were summarised by the Minister in his written submissions in the following terms which I also adopt:
11. … the Delegate:
a. noted that, in the applicant’s first waiver request made in 2016, she had claimed to fear harm in Fiji if returned and had stated that she wished to lodge a partner visa if she remained in Australia as the reasons for the waiver request;
b. found that the applicant’s second waiver request was made for “the same reasons as the client claimed in her first waiver back in 2016” and that therefore the “reasons for the two waivers are not substantially different” (cf r 2.05(4)(b) of the Migration Regulations 1994 (Cth) (Regulations));
c. also found that the circumstances relied upon had not developed since the applicant’s visa was granted, were not otherwise a major change in the applicant’s circumstances or matters over which she had no control, and whilst compassionate were not compelling circumstances (cf r 2.05(4)(a) Regulations); and
d. determined that the applicant therefore did not satisfy r 2.05(4) of the Regulations.
(References omitted)
THE PROCEEDING IN THIS COURT
In her application commencing this proceeding the applicant alleged:
1. The Case Officer was provided with evidence of solid de facto relationship for many years and that my partner has been supporting me emotionally and financially. The Department failed to consider long term relationship and failed to interpret compelling circumstances and failed to see the difference between my first request to waive 8503 condition dated 17 August 2016 which was refused on 31 August 2016 and this request which was refused on 26 April 2022.
2. The Case Officer misunderstood the compelling circumstances.
The grounds pleaded in the application demonstrate a failure to identify the critical issue in this case, namely that the Delegate considered that the applicant’s second application for a waiver of Condition 8503 failed because it was not substantially different from her earlier request. The evidence indicates that the facts asserted in support of the second waiver application were essentially the same as those advanced in support of the earlier one. The earlier waiver application was not reproduced in the evidence, but the Delegate summarised it in his decision record and that summary has not been challenged.
Consequently, the question is whether there is any basis to conclude that the Delegate’s decision to apply reg.2.05(4)(b) of the Regulations in the way that he did was flawed in a way that would support a conclusion that his decision on the application was affected by jurisdictional error. Nothing was advanced to suggest this, and it appears passably clear that the finding made by the Delegate was well open to him on the evidence and was neither unreasonable nor illogical, as those words are understood by reference to the authorities. The prospect of the applicant being able to demonstrate jurisdictional error on the Delegate’s part are insufficient to justify the matter being considered at a final hearing.
CONCLUSION
Having found that no satisfactory explanation for the delay in commencing the proceeding has been provided and that the substantive application for a judicial review of the Delegate's decision has insufficient merit for it to be considered at a trial, I conclude that the application for an extension of time within which to bring this proceeding must be refused and the application dismissed, as it would not be in the interests of justice to do otherwise.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 1 March 2024
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