SZSKR v Minister for Immigration
[2014] FCCA 2
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSKR v MINISTER FOR IMMIGRATION | [2014] FCCA 2 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal to waive a condition on the applicant’s visa disentitling the applicant to the grant of a further visa – inflexible application of policy. |
| Legislation: Migration Act 1958 (Cth), s.41 |
| Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Minister for Immigration v SZMDS (2010) 240 CLR 611 SZNOX v Minister for Immigration [2009] FCA 1233 |
| Applicant: | SZSKR |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3010 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin with Mr J Tunks, pro bono publico |
| Counsel for the Respondent: | Mr P Knowles |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
A writ of certiorari shall issue removing the record of the delegate’s decision to refuse to waive condition 8503 attaching to the applicant’s visa into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Minister to redetermine the waiver request in accordance with law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3010 of 2012
| SZSKR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of a delegate of the Minister refusing to waive a no further stay condition (8503) on the applicant’s visa. The decision was notified to the applicant on 20 November 2012[1]. It appears that the decision was made on that day as it followed a submission to the delegate dated that day[2].
[1] Court Book (CB) 43-44
[2] CB 48-52
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Lebanon, arrived in Australia on 25 January 2010. At that time he held a Sponsored Family Visitor Visa which permitted him to remain in Australia for up to three months[3].
[3] CB 48
That visa was subject to condition 8503 as stated in Schedule 8 of the Migration Regulations 1994 (Regulations):
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.
The applicant stayed in Australia beyond the period of his visa validity. He subsequently lodged two applications for a protection visa: the first application was withdrawn, the second application was refused[4].
[4] CB 48-49
On 20 September 2012, the applicant made a request for the Minister to waive the visa condition pursuant to his discretion under s.41(2A) of the Migration Act 1958 (Migration Act). The request was refused[5].
[5] CB 49
On 13 November 2012, the Minister’s Department received a further request to waive condition 8503[6]. The request was made on the applicant’s behalf by Mr Toufic Laba Sarkis[7]. The second waiver request stated that compelling and compassionate circumstances justified the waiver. Those circumstances were said to arise because the applicant’s wife “was involved in [a] serious accident which is documented by medical evidence”. The accident occurred on 27 February 2012 (some months before the applicant’s marriage to his wife on 7 June 2012)[8].
[6] CB 1
[7] CB 2-4
[8] CB 51
The request for the waiver of the condition was accompanied by:
a)a report from a social worker, Ms Lisa Laba Sarkis[9];
b)MRI and ultrasound scan reports[10];
c)letters from two doctors[11];
d)WorkCover medical certificates[12]; and
e)a bank statement in the name of the applicant’s wife.
[9] CB 7-9
[10] CB 10-13 and 17
[11] CB 14 and 18
[12] CB 19-38
Statutory background
Section 41 of the Migration Act provides, relevantly:
(1) The regulations may provide thatvisas, or visas of a specified class, are subject to specified 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, theholder 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…
Regulation 2.05(4) conditions the exercise of the Minister’s power under s.41(2A) of the Migration Act. Regulation 2.05(4) relevantly provides:
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.
(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.
Although s.41(2A) vests in the Minister (or his delegate) the discretion to waive the visa condition, that discretion is not enlivened unless the requirements of Regulation 2.05(4) are satisfied. Thus, the question of whether the discretion was exercised reasonably does not arise unless, among other things, the “compelling and compassionate circumstances” required by regulation 2.05(4)(a) are established[13].
[13] see Re Vanstone; ex parte Auva'a (2003) 134 FCR 379 at [8] per Dowsett J; Verlicia v Minister for Immigration [2004] FCA 1529 at [7] per Moore J
Decision of the delegate
The delegate of the Minister notified the applicant by letter dated 20 November 2012 that the request to waive the visa condition had been refused[14].
[14] CB 44-47
The delegate was not obliged to, and did not purport to, provide a full statement of reasons[15]. However, in the letter of notification the delegate did give a brief explanation for his decision as follows:
a)the delegate was satisfied that the second request for waiver of the condition arose from circumstances which were substantially different from the earlier request and, accordingly, regulation 2.05(4)(b) was satisfied;
b)the delegate accepted the applicant’s wife suffered from the post-accident symptoms described in the report of Ms Laba Sarkis, but found that the medical evidence submitted did not reflect the intensity of the conditions described in her report, nor did the medical evidence indicate the applicant’s wife was in need of care;
c)the delegate was not satisfied that the applicant was the only person available to provide assistance to his wife.
[15] Salazar v Minister for Immigration [2001] FCA 899 at [25]–[26] per Allsop J
While the applicant’s circumstances were compassionate, they were not compelling.
The judicial review application
These proceedings began with a show cause application filed on 17 December 2012. The applicant now relies upon a further amended application filed in court by leave on 20 November 2013. The two grounds in that application are:
1. The decision involved an unreasonable and irrational finding as to satisfaction of the existence of the circumstances which would enliven the discretion in s.41(2A) of the Migration Act 1958
Particulars
The process of reasoning of the delegate is defective and unjust. The delegate accepted that the applicant’s spouse suffered the symptoms referred to in the report of the social worker. The other medical evidence was not a rational basis to discount the social worker’s observations and opinions regarding the wife’s need for assistance. There was a failure to engage with the substance of the medical evidence
2. The delegate failed to exercise his jurisdiction as he considered that the departmental policy was in effect a legislative requirement
Particulars
The delegate considered that he could only find that a medical condition of a close family member was a circumstance which was compelling where that family member both required care and that the applicant was the only person who could provide that care
I have before me as evidence the court book filed on 25 January 2013 and an extract from the Procedures Advice Manual of the Minister’s Department (PAM Guidelines), which I received as an exhibit[16].
[16] Exhibit A1
Consideration
The applicant’s challenge to the delegate’s decision must be considered in its factual context.
The applicant sought the exercise of the Minister’s discretion under s.41(2A) of the Migration Act to waive the no further stay condition which had attached to his visa.
The circumstances in which the s.41(2A) discretion can be exercised are prescribed by regulation 2.05(4). These circumstances are where there has been a change in circumstances since the grant of the applicant’s visa which contains the no further stay condition. Those circumstances must be outside the applicant’s control and be compassionate and compelling.
The applicant’s wife suffered a fall at work in February 2012. In support of his waiver application the applicant submitted a social worker’s report on the applicant’s wife’s medical condition.
The social worker’s opinion was that the wife suffered post traumatic stress disorder, anxiety, high levels of stress, body aches and pains including low back, neck pain, migraines, headaches, sleeping difficulties, dizziness, imbalance, nightmares, flashbacks of the incident, intense fear, consistent worrying, panic attacks, loss of concentration, memory loss, difficulty breathing daily, agoraphobia symptoms and anger issues.
The delegate accepted that the applicant’s wife was suffering post accident symptoms described in the social worker’s report.
The delegate accepted that the wife’s medical condition was a compassionate circumstance, but did not accept that it was compelling[17].
[17] CB 46
In the reasons he gives for concluding that the circumstance is not compelling the delegate states:
waiver policy in relation to medical conditions of close family members also requires that the officer be satisfied that the family member both requires care and that the applicant is the only person who can provide that care.
The policy thus has two requirements where a relative of the applicant is ill; first, the need for care and secondly, that the applicant is the only person who can provide that care. The delegate makes findings that:
However the medical evidence provided does not reflect the intensity of your wife’s conditions as prescribed by the social worker; it also does not indicate that your wife is in need of care.
Secondly:
I accept that your wife would prefer to obtain assistance from you, but I do not accept that you are the only person available to provide that assistance.
The applicant submits that the delegate’s finding as to the need for care does not meet the requirement of rationality. Further, he submits that the delegate erred as he applied the policy of both the need for care and the availability of assistance as being legal pre-conditions rather than policy guidance. Both contentions are resisted by the Minister.
Unreasonableness
I prefer the submissions of the Minister in relation to the first ground.
The principal complaint raised by ground one is that the delegate accepted that Ms Laba Sarkis’ report accurately stated the symptoms suffered, but did not accept Ms Laba Sarkis’ assessment of the severity of those symptoms or the wife’s care need. This reasoning is said to be unreasonable.
The medical evidence supplied by the applicant confirmed that the applicant’s wife was unfit to return to work. The medical evidence shows the development of new symptoms:
a)The accident occurred on 27 February 2012. The original treating doctor was Danish Khan. His certificates do not indicate psychological problems arising until 6 May 2012. On that day “Nightmares, Anxiety/Depression” are recorded[18]. This symptomatology continues in subsequent reports[19]. On 20 July 2012 a further complaint of memory loss is recorded[20]. On 3 August 2012, post traumatic stress disorder is first diagnosed, and the other symptoms are continuing[21]. This is also the case on 3 September 2012[22] and 1 October 2012[23].
b)On 11 October 2012 a different doctor, Dr Assad, also diagnosed post traumatic stress disorder[24] and this is repeated in his referral letter of 30 October 2012[25].
[18] CB 28
[19] CB 29-32
[20] CB 33
[21] CB 34
[22] CB 36
[23] CB 37
[24] CB 38
[25] CB 18
It was clear from the medical evidence that the wife was suffering additional symptoms over time leading to a diagnosis of post traumatic stress disorder.
In her report Ms Laba Sarkis stated that the applicant’s wife “requires support and assistance with completion of daily tasks”[26] and that the applicant “assists her on a daily basis”[27] and “From observations I cannot see that [the applicant’s wife] can adequately cope without her husband’s support”[28].
[26] CB 7
[27] CB 8
[28] CB 8
The delegate stated that the medical evidence did not indicate that the wife was in need of care. The delegate accepted Ms Laba Sarkis’ summary of the wife’s condition but rejected her assessment of what the wife’s support needs were.
This gives rise to the question as to how the distinction drawn by the delegate was reached.
To establish that the delegate’s finding was unreasonable, it must be established that the approach adopted by the delegate was lacking in any “evident and intelligible justification” or was “arbitrary, capricious or clearly unjust”[29]. For the following reasons, that high threshold is not met in this case.
[29] see Minister for Immigration v Li (2013) 297 ALR 225; 87 ALJR 618 at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130] per Crennan and Bell JJ
First, as a matter of law, the delegate was not required to accept the opinion or conclusions of a medical expert such as a psychologist[30]. This principal applies with even more force in this case given that Ms Laba Sarkis had no apparent medical qualifications and there was no evidence she had any expertise in the diagnosis or treatment of mental illness.
[30] SZHHF v Minister for Immigration [2008] FMCA 1208 at [15] per Raphael FM
Secondly, far from being irrational, the delegate’s conclusion was accurate: none of the medical evidence submitted to the delegate stated that the applicant’s wife was in need of care; nor did the medical evidence describe the wife’s symptoms with the same degree of severity as Ms Laba Sarkis’ report.
Thirdly, to the extent that it dealt with the care needs of the applicant’s wife (and the applicant’s role in fulfilling these care needs), Ms Laba Sarkis’ report was vague: eg “her husband has committed himself to provide her with love, support, assistance during her time of need”[31]. Given the relative lack of detail in the report, it was open for the delegate not to accept every aspect of it.
[31] CB 8
Fourthly, the applicant’s submissions contend that the medical evidence submitted (and especially the WorkCover certificates) were not purporting to give a full report of the applicant’s medical condition. Thus, it is claimed, the fact the medical evidence did not describe the care needs of the applicant’s wife does not provide a basis for rejecting the assessment by Ms Laba Sarkis. However, it was for the applicant to put forward sufficient evidence to establish the facts said to satisfy regulation 2.05(4)[32]. The fact that there was no medical evidence to support Ms Laba Sarkis’ claims meant that it was open to the delegate not to be satisfied of the matters stated in her report.
[32] cf. SZNOX v Minister for Immigration [2009] FCA 1233 at [18]
Fifthly, the applicant relies on the contention that the medical evidence suggested that the condition of the applicant’s wife was deteriorating[33]. It is not clear that the wife’s condition was in fact deteriorating, although it may be accepted that additional symptoms were diagnosed over time. However, even if the condition of the applicant’s wife was deteriorating, this does not overcome the fact that none of the medical evidence suggested that the applicant’s wife needed care. It is also relevant to note that the written application seeking waiver of the visa condition did not claim that the applicant’s wife needed care or that the applicant provided such care[34].
[33] see applicant’s submissions at [11] and [20]
[34] CB 1
Sixthly, the applicant contends that the delegate failed to consider the evidence that the applicant was incapacitated from returning to work and, more generally, failed to engage with the substance of the medical evidence[35]. This argument faces a legal difficulty. Given the absence of any obligation to give reasons, this Court should not lightly infer that a particular piece of evidence has not been considered[36]. In any event, there is no reason to draw an inference that the delegate ignored or failed to engage with the medical evidence. The evidence was referred to in the letter of the delegate informing the applicant of the decision. The internal document titled “Minute Submission to Delegate” (which was signed by the delegate) also listed the medical evidence including the WorkCover certificates[37]. Given these references to the medical evidence, I will not infer the evidence was ignored. Moreover, the weight which was to be attributed to this evidence was a matter for the delegate[38]. It was not unreasonable therefore for the delegate to give less weight to medical evidence that did not specifically address the care needs of the applicant’s wife.
[35] applicant’s submissions at [21]-[22]
[36] SZGBR v Minister for Immigration [2005] FMCA 824 at [13]-[15] per Smith FM
[37] CB 48-52
[38] Minister for Immigration v SZJSS (2010) 243 CLR 164 at [32]-[33]
Ground 2 – the inflexible application of policy
The complaint reflected in ground two of the further amended application is that the delegate applied the policy position as if it were a legislative requirement. It is not suggested that the policy was itself unlawful (ie outside what is permissible by the legislation). Rather, the complaint is that the policy was applied inflexibly.
The determination of whether a particular circumstance could be characterised as “compassionate and compelling” required the Minister (or his delegate) to form a view about a matter involving value judgments. It was open for the Minister to state in advance (by way of a policy) his understanding of the meaning of the phrase “compassionate and compelling” and indicate how the Migration Act would be administered. As Hayne J said in Minister for Immigration v Jia[39]:
The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment. It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character. It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character. If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made. The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression “is not of good character” and had indicated how the Act would be administered. So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done (emphasis added).
[39] (2001) 205 CLR 507 at 565-566
Thus, where a statutory power is vested in the Minister, there can be no objection to the Minister exercising that power in accordance with government policy[40].
[40] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 455 per Gaudron, Gummow and Hayne JJ. See also Aronson and Groves, Judicial Review of Administrative Action (5th Ed; 2013) at [5.300]
A decision may, however, be made beyond jurisdiction if it involves the application of policy without regard to the merits of a particular case.
The PAM Guidelines state at 13.1, 14.4 and 19.4:
13 Assessing waiver requests
13.1 Overview
Each case must be assessed on its merits. It is an error apply policy inflexibly.
The visa holder should be given the opportunity to fully present information as to why they consider their circumstances warrant the waiving of the condition (but see also section 11 Counselling).
Failure to satisfy any part of regulation 2.05(4) requirements must result in the waiver request being refused.
Decision records must indicate how the visa holder satisfies each regulation 2.05(4) requirement.
14.4 Compelling circumstances
The decision to waive the condition can be taken only if compelling circumstances have developed since the visa holder was granted the visa that has the “no further application” condition attached.
Under policy, ‘compelling circumstances’ are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia. For examples of circumstances that may meet this requirements, see section 19 Types of circumstances envisaged.
19.4 Death/illness within close family
The death, serious illness or serious medical condition of a member of a visa holder’s close family, in circumstances where the visa holder is required to remain temporarily to provide assistance or support might also satisfy requirements. When assessing such claims, officers should also have regard to what other family and/or community support is available in Australia.
Illness within close family
For the following reasons, a request for 8503 to be waived on the basis of a close relative having become seriously ill does not automatically mean that a referral to MHS is required for an “independent” assessment.
Under policy, officers must be satisfied that:
·the medical condition of the close relative is such that care is required and
·that care can only be provided by the visa holder.
Policy would expect that only these cases would meet the regulatory requirement that the visa holder’s circumstances be both compelling and compassionate.
If the relative with the medical condition is also seeking t have an 8503 visa condition waived, the procedures in section 19.3 Referral to Medibank Health Solutions apply. If, however, the relative with the medical condition is not also seeking a waiver (for example, they may be an Australian citizen or permanent resident), it is for the visa holder to decide whether they wish to have the relative undergo an independent (that is, MHS) health assessment to verify the visa holder’s claim:
·if the relative is to undergo assessment, details are to be referred to MHS using form 1148 – see PAM3: Sch4/4005-4007 – Form 1148
·if the visa holder chooses not to have the relative undergo assessment, the decision whether to waive the 8503 condition is to be based on the information held.
Existing conditions
Deterioration of an existing serious illness or medical condition would not normally be grounds for a waiver.
(emphasis in original and added in bold)
The statutory requirement is that the circumstances be compelling and compassionate. In this regard the delegate applied the waiver policy, not as a guide but as a substitute for the statutory test. This follows from the sentence :
waiver policy in relation to medical conditions of close family members also requires that the officer be satisfied that the family member both requires care and that the applicant is the only person who can provide that care. (emphasis added)
The Minister contends that as the delegate was not under a legal obligation to give reasons for his decision, little can be read into the terms of the notification of his decision. I disagree. It would have been open to the delegate simply to have approved the minute put to him[41]. That submission dealt adequately with the application for waiver. The delegate chose to give a detailed explanation for his decision in the notification letter under the heading, “Reasons”. After referring to his understanding of the requirements of waiver policy which underpins the applicant’s challenge to this decision, the delegate went on to say that, for the reasons given, he had determined that the applicant’s circumstances did not meet the requirements for waiver of the 8503 condition.
[41] which is reproduced at CB 48-52
I accept the applicant’s contention that the reasons for the delegate’s decision proffered by him indicate sufficiently clearly that the delegate considered that the policy was not a guide which could be departed from in particular cases but was a requirement. The delegate applied the policy inflexibly without regard to the merits of the case and thus unlawfully circumscribed his discretion[42].
[42] Jackson v Minister for Immigration [2003] FCAFC 203; (2003) 75 ALD 643 at [20] and cases there referred to. Lobo v Minister for Immigration [2003] FCAFC 168; (2003) 132 FCR 93 at [65]
The applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 January 2014
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