SZSUI v Minister for Immigration

[2016] FCCA 3317

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUI v MINISTER FOR IMMIGRATION [2016] FCCA 3317

Catchwords:
MIGRATION – Tourist visa – no further stay condition – application for waiver of condition.

Legislation:

Migration Act 1958, ss.41, 474

Migration Regulations 1994, reg.2.05

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZSUI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2100 of 2014

Judgment of: Judge Cameron

Hearing date: 24 November 2016

Date of Last Submission: 24 November 2016

Delivered at: Sydney

Delivered on: 24 November 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the applicant be amended in the Court record to read “SZSUI”.

2. The application be dismissed.

3. The applicant pay the respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2100 of 2014

SZSUI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Egypt, arrived in Australia on 5 March 2011 as the holder of a three month visitor’s visa subject to condition 8503 (No Further Stay).  On 1 July 2014 the applicant lodged a request with the Department of Immigration and Border Protection (“Department”) seeking waiver of the no further stay condition imposed on his visa.  On 18 July 2014 a delegate of the respondent (“Minister”) refused that request and the applicant has applied to this Court for judicial review of that decision. 

2. The applicant’s waiver request the subject of this proceeding was the fifth such request the applicant had lodged with the Department.  The applicant’s four previous requests had all been refused.

3. In these judicial review proceedings, the Court cannot reconsider the applicant’s request for a waiver of the visa condition. Its task is to determine whether the delegate’s decision was affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Section 41 of the Act allows the Minister to make certain visas subject to particular conditions. It also provides that the Minister may waive one of the visa conditions provided for by that section. Section 41 relevantly provides:

   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 … while he or she remains in Australia; …

   (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).

2. Regulation 2.05 of the Migration Regulations 1994 prescribes the circumstances in which the Minister may waive the condition referred to in s.41(2)(a). It relevantly provides:

   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

1. As noted earlier, the applicant arrived in Australia on 5 March 2011 as the holder of a single entry visitor’s visa which was valid until 5 June 2011.  The applicant had travelled to Australia to accompany his employer.  After his visa expired, the applicant remained in Australia as an unlawful non-citizen until 20 September 2011 when he lodged an application for a protection visa.  That application was refused by the Department on 23 March 2012 and that decision was affirmed by the Refugee Review Tribunal (“RRT”) on 2 July 2012. 

First waiver request

1. The applicant lodged his first request for a waiver of condition 8503 on 2 October 2012.  He sought the waiver on the ground that he had married an Australian citizen and wished to lodge a valid partner visa application.  He claimed that his wife suffered from certain medical conditions and relied substantially on him for emotional and physical support.  The applicant also claimed that if he returned to Egypt he would face sectarian and political violence as a result of the political turmoil there.  In support of his request the applicant provided a marriage certificate which indicated that he had married his wife on 21 August 2012.  He also provided a medical report dated 19 September 2012 indicating that in 1988, when she was almost three years old, his wife had been involved in a motor vehicle accident and suffered from left upper limb paresis, left lower limb weakness, left Horner’s syndrome, kyphoscoliosis, postural scoliosis, recurrent back and shoulder pain, episodes of headaches and dizziness, recurrent chest infections and depressed mood.

2. The applicant’s first request was refused on 25 October 2012 on the bases that his wife’s injuries had occurred before his visa grant and arrival in Australia and that he had not provided evidence to show that the care she had been receiving could not continue or that she could not obtain the care she required from her immediate family members.  The request was also refused on the basis that the applicant’s claims to fear harm in Egypt had already been assessed as not meeting the criteria for a protection visa.

Second waiver request

1. On 13 November 2012 the applicant lodged his second waiver request, again based on his claim that his wife relied on him for emotional and physical support.  On that occasion, the applicant provided a psychologist’s report dated 5 November 2012 which stated that he and his wife suffered from mixed anxiety disorder and that his wife was apprehensive of being forcibly separated from him.  The report recorded that the applicant’s mother-in-law was no longer able to provide his wife with care because she had four other young children and their demands were increasing. 

2. The Department refused the applicant’s second request on 28 November 2012, finding that it was not substantially different from his first request.  The Department also noted that there was no evidence that the applicant’s wife could not access community services available to people with disabilities.  

3. An application by the applicant to this Court seeking judicial review of the refusal of his second waiver request was dismissed on 23 April 2013.

Third waiver request

1. The applicant lodged his third waiver request on 14 January 2014.  In it, he claimed that his wife had previously been looked after by her mother but that his presence had eased his mother-in-law’s load which had allowed her to meet the increasing demands of her other growing children.  He also claimed that there was civil unrest in Egypt and referred to travel warnings on Egypt issued by the Department of Foreign Affairs and Trade.  In support of the third request the applicant provided a letter dated 5 January 2014 from his mother-in-law in which she stated that she had four children under the age of eight and would not be able to keep up with all of her children’s care needs if the applicant left Australia.

2. In refusing the applicant’s third request, the Department acknowledged the applicant’s claim that his presence had reduced his mother-in-law’s care load but found that that information did not explain why the previous care arrangements which had applied to his wife could not continue.  It also found that the travel warnings concerning Egypt were intended for Australian citizens travelling to Egypt, not for Egyptian citizens travelling there.

Fourth waiver request

1. On 1 April 2014 the applicant lodged his fourth waiver request.  He claimed that he had sustained a penetrating eye injury in October 2013 for which he had undergone surgery but which required further monitoring and treatment in Australia.  The applicant provided a letter dated 23 October 2013 signed by a retinal specialist at Westmead Hospital stating that he had had two surgeries for a right eye penetrating injury and would require further surgery in six to twelve months.  He provided a second letter from Westmead Hospital dated 3 March 2014 stating that he was trialling the use of contact lenses to correct his poor vision and if they did not work he would require a corneal transplant.

2. The applicant’s fourth application was refused on 8 April 2014.  While accepting that the circumstances the applicant had presented in the fourth request were substantially different from those in his previous three requests, the Department was not satisfied that the circumstances were such that the applicant was compelled to remain in Australia.

Requests for ministerial intervention

1. After the RRT affirmed the decision to refuse his protection visa application, the applicant applied for ministerial intervention.  That request was refused on 30 October 2012.  On 22 May 2013, after his second waiver request was refused, the applicant made a further application for ministerial intervention citing his wife’s need for care as a compelling and compassionate circumstance.  On 26 May 2014 the Assistant Minister for Immigration and Border Protection refused to exercise the power to intervene in the applicant’s case.

Fifth waiver request

1. On 1 July 2014 the applicant lodged his fifth request for a waiver of condition 8503.  In support of his application the applicant relevantly provided:

   a)a Carer Visa Assessment Certificate dated 20 September 2013 signed by an examining medical adviser from Medibank Health Solutions.  The medical adviser assessed the applicant’s wife as suffering from depression, left upper limb paralysis, right lower limb weakness, kyphoscoliosis, respiratory infection, dizziness, headaches and left Horner’s syndrome, all of which were permanent.  The adviser noted that she did not require full assistance with any aspects of care although she required assistance with some aspects of hygiene, toileting, dressing, grooming and eating.  The applicant’s wife was assessed as not meeting the requirements for a full-time carer;

   b)a letter dated 18 June 2014 from the applicant’s wife in which she stated that they had been living together for more than a year and a half and that he assisted her with her toileting, bathing, dressing, grooming and with food preparation.  She stated that the applicant had also helped her find a suitable job and helped her get to and from work.  The applicant’s wife stated that she would be distressed if he left Australia;

   c)a letter dated 18 June 2014 from a gastrointestinal surgeon stating that the applicant’s wife was due to have surgery on 10 September 2014;

   d)a letter from a friend of the applicant’s wife stating that after marrying the applicant his wife had become happier but she had become sad again at the thought of living without her husband;

   e)three letters from Westmead Hospital dated 23 October 2013, 3 March 2014 and 2 April 2014 referring to the applicant’s penetrating right eye injury and stating that he might require further surgery and ongoing medical care; and

   f)two letters indicating that the applicant had appointments with the Westmead Hospital Eye Clinic on 2 July 2014 and 10 September 2014.

The delegates’ decision and reasons

1. On 18 July 2014 the delegate refused the applicant’s fifth request for waiver of the no further stay condition.  The delegate noted the documents the applicant had provided in support of his request, including the letter from his wife dated 18 June 2014.  She acknowledged that the applicant’s wife had suffered numerous medical issues since she had been involved in a car accident in 1988 and that the applicant had provided medical evidence of her reliance on him with daily tasks.  The delegate noted that the applicant had also provided evidence of medical treatment he was receiving for an eye injury.  The delegate noted the applicant’s four previous waiver requests and found that the circumstances of his fifth request were not substantially different from those presented in the four previous requests.  The delegate also found that while the applicant’s claims were compassionate, they were not of a compelling nature outside his control.  For those reasons, the delegate refused to waive the no further stay condition.

2. The delegate’s decision was based on a recommendation made by an officer in the Department.  Relevantly, the officer noted in a departmental minute that the applicant’s marriage and his eye injury had occurred after the grant of his visa.  The officer found that the applicant’s marriage was not a circumstance which had been out of his control, noting that the Department’s policy stated:

   marriage to an Australian citizen or resident would not, under policy, normally constitute a situation which would be regarded as “beyond the control” of the visa holder for the purposes of the waiver provisions. 

   The officer found that the applicant had made a conscious decision to marry his wife knowing that she suffered from medical injuries sustained in a car accident in 1988.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Delegate of the Minister failed to assess my wife’s needs which cannot be met by anybody else and that I am the only carer for my wife.

   2.The Delegate misunderstood the care my wife needs and the definition and meaning of compelling and compassionate circumstances.

   3.My wife suffers permanent depression, permanent left upper limb paralysis, permanent right lower limb weakness, kyphoscoliosis, respiratory infections, dizziness, headaches and permanent left horner’s syndrome.

   4.The Delegate ignored the contents of my wife’s letter dated 18 June 2014.

Ground 1

1. The first ground of the application alleged that that the delegate failed to assess the needs of the applicant’s wife and his role in looking after her.  However, that allegation overlooked what the delegate had said at page 3 of her notification letter to the applicant of 18 July 2014:

   I acknowledge that your wife has suffered from numerous medical issues since she was involved in a car accident in 1988.  It is further acknowledged that you have provided medical evidence that she relies on your care of her with daily tasks.  You also included in your request evidence of your own medical treatment for your eye injury.  However, these circumstances are not substantially different to those presented in your four previous waiver requests.

2. It should also be recognised that the delegate’s decision was informed by the departmental minute of the departmental officer.  That minute was reproduced at pages 199 to 204 of the Court Book, which was exhibit A, and contained the following paragraph:

   … It is acknowledged that the applicant wishes to remain in Australia to continue to care for his wife, who has suffered from numerous medical issues since she was involved in a car accident in 1988.  It is further acknowledged that she has recently undergone an assessment for a carer visa assessment certificate, where she was found to have a “condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life”.  The applicant has provided substantial medical evidence that his wife requires some daily care and support.

3. The delegate was plainly aware of that paragraph because her writing appears at the bottom of that page of the departmental minute as well as on the next page.

4. But in any event, the delegate could not waive condition 8503 unless the applicant’s circumstances were substantially different from those considered in the context of the earlier waiver applications, and they were not.  Nor has the applicant suggested that they were.

Ground 2

1. The first part of the second ground of the application must fail for the reasons the first ground of the application fails.  The second part of the allegation, which concerns the meaning of “compelling and compassionate circumstances”, assumes that there existed for consideration by the delegate compelling and compassionate circumstances which had not been considered earlier.  The delegate was not persuaded that the applicant’s circumstances were, in fact, substantially different from those which had existed earlier and it is not apparent that that opinion was erroneous in any sense.

Ground 3

1. The third ground of the application did not allege error on the delegate’s part, although its implication was that the delegate did not take the particularised matters into account.  For the reasons given in connection with the first ground of the application, I do not accept that this was so.  And again, it was not suggested that those matters had not been considered before in the context of the earlier waiver applications.

Ground 4

1. On the facts, the fourth ground of the application cannot be made out because the applicant’s wife’s letter was referred to by the delegate on page 2 of the notification letter and had also been referred to at page 2 of the departmental minute.

Conclusion

1. I am not persuaded that the delegate’s decision was affected by jurisdictional error. 

2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 December 2016