SZRSX v Minister for Immigration (No.6)
[2019] FCCA 3058
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRSX v MINISTER FOR IMMIGRATION (No.6) | [2019] FCCA 3058 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal to waive no further stay condition on a visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: AAG17 v Minister for Immigration [2018] FCA 1862 Boutros v Minister for Immigration [2019] FCA 851 SZRSX & Anor v Minister for Immigration [2017] FCCA 3420 |
| Applicant: | SZRSX |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 627 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms K Morris of Clayton Utz |
INTERLOCUTORY ORDERS
The title of the respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The name of the applicant is not to appear on the transcript of today’s hearing.
For the purposes of this proceeding, the applicant is to be known by the pseudonym “SZRSX”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 627 of 2019
| SZRSX |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of a delegate of the Minister (delegate) made on 13 February 2019. The delegate refused to wave condition 8503 (the Condition) attaching to the applicant’s last substantive visa.
This was not the first such application the applicant had made. The present decision was, as I understand it, a reconsideration of an earlier decision. The applicant had also previously made three protection visa applications. With that in mind, I ordered that she be known by the pseudonym which had been allocated to her in earlier protection proceedings.[1]
[1] There have been five previous decisions of this Court and its predecessor in relation to this applicant: SZRSX v Minister for Immigration & Anor [2012] FMCA 915, SZRSX v Minister for Immigration & Anor [2013] FMCA 72, SZRSX v Minister for Immigration & Anor [2016] FCCA 622, SZRSX v Minister for Immigration [2017] FCCA 2580, SZRSX & Anor v Minister for Immigration [2017] FCCA 3420
The background facts in this matter are otherwise set out in the Minister’s outline of submissions filed on 17 October 2019.
The applicant is a citizen of Fiji who first arrived in Australia on 16 May 2011 as the holder of a visitor TR676 visa (tourist visa). It is not contested that this visa was the subject of the Condition. Shortly after arriving in Australia, the applicant made a protection visa application. That application (and the related judicial review proceedings) were finally determined on 11 February 2013.[2] Subsequently, the applicant made a second protection visa application on 14 February 2014. The judicial review proceedings in respect of that second application were finally determined on 3 August 2016.[3] The applicant then made a third application for a protection visa on 24 November 2016. The judicial review proceedings in respect of that third application (so far as they concerned this applicant) were finally determined on 31 August 2017.[4]
[2] Court Book (CB) 46 [2]
[3] CB 46 [2]
[4] AAG17 v Minister for Immigration [2018] FCCA 1696; AAG17 v Minister for Immigration [2018] FCA 1862 (noting that those proceedings were concluded, as against this applicant, on 31 August 2017 by reason of her non-appearance before this Court)
On 15 August 2016, the applicant applied for waiver of the Condition.[5] The delegate, in a previous decision dated 31 August 2016,[6] refused that application, however the delegate’s decision was ultimately set aside by Derrington J on 15 May 2018.[7] Following that decision of the Federal Court the delegate wrote to the applicant on 30 May 2018,[8] 29 June 2018,[9] and 7 January 2019[10] inviting her to provide further information in support of her application, however no additional information relating to the waiver application was ultimately received.[11] On 13 February 2019, the delegate refused the application for waiver of the Condition.
[5] CB 1-23
[6] CB 24-28
[7] SZRSX v Minister for Immigration [2018] FCA 810; CB 44-54; the Minister notes that the earlier delegate’s decision was made by a different delegate - CB 28 cf 70
[8] CB 55-58
[9] CB 60-61
[10] CB 62-65
[11] CB 68; the Minister notes that the applicant did send a letter of 9 June 2018 (CB 59) but, as recorded at CB 68, that document did not put forward any submissions as to the application
Delegate’s decision
At the start of her decision, the delegate noted that the reasons given by the applicant for seeking the waiver of the Condition were (1) to “lodge a Partner visa in Australia” and (2) because she feared “returning to her home country”.[12] The delegate further noted that she was reconsidering the applicant’s initial request and that, despite three request letters being sent to the applicant and a phone call being made to the applicant, as at the date of the decision no additional information had been received.[13]
[12] CB 68
[13] CB 68
The delegate then had regard to the statutory criteria set out in regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) governing applications made pursuant to s.41(2A) of the Migration Act 1958 (Cth) (Migration Act) to waive the Condition. The delegate relevantly found that:
a)for the purposes of regulation 2.05(4)(a)(i), the applicant’s request for a waiver in order to apply for a partner via was a “personal choice” and therefore not a circumstance over which she had no control. However the delegate accepted that the applicant’s claim that her life was at risk was a circumstance outside her control;[14] and
b)for the purposes of regulation 2.05(4)(a), the applicant’s stated fear of returning to Fiji and her stated desire to remain in Australia were both “compassionate” circumstances. As to whether they were “compelling” circumstances, the delegate noted that this must be given its “ordinary meaning” of being “forceful or driving” and must be “sufficiently forceful” to lead a decision maker to waive the condition. The delegate noted in this regard that she had considered the documents received with the applicant’s original waiver application[15] and outlined the applicant’s claims regarding her fear of harm if returned to Fiji. The delegate noted in particular that, in the applicant’s protection visa proceedings, the applicant’s evidence was that the reason she could not relocate within Fiji was because she did not know anyone in other cities in Fiji. The delegate was not satisfied that this was “sufficiently forceful to waive the condition”. The delegate further noted that, in those protection visa proceedings, there was evidence that Fiji had many organisations available to “provide shelter, legal services, counselling and financial assistance” and considered that the applicant would be able to access those services to assist in resettling. The delegate otherwise noted that the applicant had provided no additional information regarding her relationship in Australia. The delegate was not satisfied on the evidence before her that the desire to lodge the partner visa was “sufficiently forceful to waive the condition”. For those reasons, the delegate was not satisfied on balance that the applicant’s circumstances were compelling.[16]
[14] CB 69
[15] See: CB 3-23
[16] CB 69-70
For those reasons, the delegate was not satisfied that the applicant had met all of the criteria within regulation 2.05(4) and therefore refused the waiver application.[17]
[17] CB 70
The present proceedings
These proceedings began with a show cause application filed on 15 March 2019. The applicant continues to rely upon that application. The grounds in it are:
1.The decision of the Delegate of the Minister is wrong and was made against the decision of the Federal Court of Australia and I provided comments to the Department which according to them was not received.
2.The Department’s reasoning to refuse to waive 8503 condition is not based on probative evidence. Even though the Officer acknowledged that my claim that my life is at risk is outside my control and the Department failed to consider that compelling circumstances exist.
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book lodged on 30 April 2019.
The Minister’s written submissions were read to the applicant before I came on the bench. At the outset of the hearing the applicant handed up in court an outline of written submissions she had prepared. She declined the opportunity to make any oral submissions.
The applicant’s submissions address the merits of the delegate’s decision in issue. She refers, in particular, to her fear of returning to Fiji. That fear was addressed by the delegate in the decision. The applicant’s submissions at [2] erroneously refer to an offshore protection visa application dated 20 March 2013. That date appears to be a prior decision of the Refugee Review Tribunal concerning one of the applicant’s protection visa claims. At [8] the applicant asks the Court to note that she is unrepresented and has financial problems. With that in mind, I have considered for myself whether any arguable case of jurisdictional error might be advanced in this case.
I can see no viable argument. The delegate considered the matters raised by the applicant. The delegate reached conclusions that were open on the material. The delegate clearly understood the task to be performed and the delegate was careful to avoid errors made previously.
In terms of the grounds of review advanced I agree with the Minister’s submissions.
Relevant legislation
At the time the applicant was granted her tourist visa (29 April 2011), clause 676.613(b) of Schedule 2 to the Regulations provided that “condition 8503 may be imposed”, which condition was in the following terms:
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 the applicant made her waiver application, ss.41(2) and (2A) of the Migration Act relevantly provided that:
41 Conditions on visas
…
(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 that time, regulation 2.05(4) of the Regulations provided that:
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.
…
As noted above, it is not disputed that the applicant’s tourist visa was subject to the Condition, being a condition falling within s.41(2)(a) of the Migration Act. It is further not disputed that regulation 2.05(4) was the relevant statutory criteria to be applied by the delegate in considering the waiver application.
Ground 1
It is unclear which “decision of the Federal Court of Australia” this ground relates to, however it is probable that this is a reference to Derrington J’s decision in SZRSX which quashed the delegate’s earlier decision in respect of the waiver application. Relevantly, in those proceedings, the basis for Derrington J’s decision was a finding that the delegate (in the earlier decision) had misapplied s.41(2A) by finding that there was no “change or any newly-developed circumstance”[18] and found that, to the contrary, the renewal of the applicant’s relationship with her former husband constituted a developed circumstance not existing at the time the visa was granted.[19] Those findings bear no relevance on the decision of the delegate which is the subject of these proceedings.
[18] At [16]
[19] At [17]-[18]; CB 50-51
Relevantly, the delegate here: (a) implicitly accepted that the applicant’s relationship with her former husband was a newly developed circumstance; (b) found that this newly developed circumstance was compassionate; but (c) ultimately found that this circumstance was not compelling. There is therefore no inconsistency with the Federal Court decision. Notably, so far as this ground is otherwise directed to the Federal Court’s treatment of the applicant’s protection claims, Derrington J found no error in the finding in the earlier delegate’s decision that this was not a “compelling” circumstance[20] which is consistent with the finding by the delegate on the remitted application.[21]
[20] At [23]-[27]; CB 52-53
[21] CB 70
For those reasons, this ground is misplaced and there is no relevant inconsistency or conflict between the Federal Court’s decision and delegate’s decision.
As to the applicant’s contention that she provided “comments to the Department which according to them was not received”, the only evidence of such “comments” being submitted to the Minister’s Department is that contained at CB 59, being a document which the Minister’s Department and delegate expressly averted to.[22] The delegate noted in this regard that, notwithstanding that letter, the applicant ultimately did not provide any additional information in support of her waiver application, which is consistent with the plain terms of the applicant’s letter of 9 June 2018. The applicant has not put forward any evidence that any other documents were provided to the Minister’s Department which were overlooked by the delegate, nor has the Minister been able to locate any other documents. The delegate had express regard to the material initially given by the applicant.[23] In these circumstances, I find that the delegate gave proper and genuine consideration to all of the materials before her, and did not overlook any relevant material. The applicant has failed to demonstrate any error on the part of the delegate as to her treatment of the applicant’s material.
[22] At CB 62, 68
[23] CB 70
Ground 2
This ground rises no higher than an impermissible attempt to traverse the merits of the delegate’s decision. As set out above[24] the delegate considered all material before her and gave logical and rational reasons for finding that, whilst the applicant’s fears regarding returning to Fiji were a relevant “circumstance” and were, moreover, a “compassionate” circumstance, it was not “sufficiently forceful” to constitute a “compelling” circumstance.
[24] At [6]-[8]
The Federal Court has recently considered a decision by a delegate who had applied a similar “sufficiently forceful” test (for regulation 2.05): Boutros v Minister for Immigration.[25] Perry J there relevantly found[26] that such a construction of regulation 2.05(4) was “broadly consistent” with the High Court’s construction of the phrase “compelling reasons” (as considered in Plaintiff M64/2015 v Minister for Immigration[27] at [31]). Kenny J has likewise held, in another case considering regulation 2.05, that “no error [was] disclosed” by a statement by a delegate that “the word “compelling” was to be given its ordinary meaning and that, in the present context, “compelling” circumstances referred to circumstances that were “sufficiently forceful” to lead the decision-maker to waive the 8503 condition.”[28]
[25] [2019] FCA 851
[26] At [23]
[27] [2015] HCA 50; (2015) 258 CLR 173
[28] Farhat v Minister for Immigration [2018] FCA 93 at [27]
On a fair reading, the delegate’s reasons for finding that regulation 2.05(4) was not satisfied were neither legally unreasonable, nor lacking an evidentiary foundation. The delegate correctly identified and applied the law and gave genuine, proper and realistic consideration to the claims of the applicant and the evidence and material before it. There was furthermore a sufficient logical, evidentiary and intelligible basis for the delegate’s findings. No legal, let alone jurisdictional error arises.
Conclusion
I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the delegate. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 October 2019
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