SZSUI v Minister for Immigration

[2013] FCCA 103

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUI v MINISTER FOR IMMIGRATION [2013] FCCA 103  

Catchwords:
MIGRATION – Review of decision by delegate of the Minister of Immigration and Citizenship – whether delegate of the Minister of Immigration and Citizenship’s decision affected by jurisdictional error – whether delegate considered all relevant evidence in refusing to waive condition 8503 of the applicant’s visa – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 41, 414, 474, Pt.8
Migration Regulations 1994 (Cth), reg.2.05

Cases cited:
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630

Applicant: SZSUI

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2855 of 2012

Judgment of: Judge Emmett

Hearing date: 4 April 2013

Date of Last Submission: 4 April 2013

Delivered at: Sydney

Delivered on: 23 April 2013

REPRESENTATION

Counsel for the Applicant: Mr David Godwin

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT OF AUSTRALIA AT
SYDNEY

SYG 2855 OF 2012

SZSUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Minister for Immigration and Citizenship (“the Delegate”) dated 28 November 2012 refusing him a waiver of condition 8503 of his visa for the second time.

2. The applicant claims to be a citizen of Egypt.

Background

1. The applicant arrived in Australia on 5 March 2011 having departed legally from Egypt on a passport issued in his own name and a three month Tourist visa subclass 676 visa issued on 21 December 2010.

2. The applicant travelled to Australia to accompany his employer. He remained in Australia beyond his visa validity period and was an unlawful citizen from 6 June 2011 until 20 September 2011.

3. On 20 September 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. The application was lodged on the grounds of religious persecution as a member of the Koranist faith.

4. On 23 March 2012, a different delegate of the respondent refused the applicant’s application for a protection visa and the applicant lodged an application for review with the Refugee Review Tribunal which was refused on 2 July 2012.

5. On 2 October 2012, the applicant lodged a request that the 8503 condition on his visa be waived which was refused on 25 October 2012 by a different delegate of the first respondent.

6. On 13 November 2012, the applicant again applied for a waiver of condition 8503 of his visa.

7. As stated above, on 28 November 2012, the Delegate refused the second waiver application.

8. On 5 December 2012, the applicant filed the application for judicial review of the Delegate’s decision, the subject of this proceeding.

Legislative framework

1. The applicant’s visa was subject to condition 8503 which states as follows:

   “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.”

2. A delegate of the First Respondent has power to waive condition 8503 pursuant to s.41(2A) of the Act and reg.2.05(4) of the Migration Regulations 1994 (“the Migration Regulations”). Relevantly, reg.2.05(4) states:

   “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.”

The applicant’s application for a waiver of condition 8503

1. The applicant’s solicitors provided a letter in support of his application for a waiver of condition 8503 to allow him to lodge a valid partner visa application. The letter stated the following:

   a)The applicant is an Egyptian national who arrived in Australia on a tourist visa with condition 8503 attached.

   b)He is currently married to an Australian Citizen.

   c)His spouse will be aggrieved by a decision not to allow him to apply for a visa.

   d)Since his arrival in Australia he has developed substantial ties to the Australian Community.

   e)He has married an Australian and his spouse has developed a substantial emotional and physical dependency on him.

   f)His spouse sustains serious multiple injuries and relies on the applicant for emotional and physical support.

   g)He seeks consideration of a waiver on the grounds of political turmoil in Egypt which would render grave consequences for the applicant if he were returned to his home country.  

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. 

2. On 7 March 2013, the applicant attended a directions hearing before me. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. The applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

5. On 2 April 2013, the applicant filed an Amended Application.

6. The applicant was represented at the hearing by Mr David Godwin, of counsel.

7. By consent, leave was given to the applicant to rely upon the grounds in the amended application, filed on 2 April 2013. Mr Godwin informed the Court that the applicant no longer relied on Grounds 1 and 3 of the Amended Application, and relied only on Ground 2.

8. Ground 2 is as follows:

   “2. The Delegate ignored important issues raised in the Psychological Assessment Report which appears in the Court book page 34-43 in particular, page 1 of the report Court Book p.34, point 1, points 3-5. Page 2 of the report (p.35 of the court book) the Delegate ignored why Ms Donovan’s mother is unable to continue undertaking fill responsibility of her daughter as she has twins, 7 years old, a 6 year old and a three year old to care for. Page 3 of the report, point 4 (court book p.36) the Delegate ignored the close and comprehensive support by her husband on [a] day to day basis. On page 7 of the report (p.40 of the court book) the Delegate ignored the wife’s statement as well as her mother’s statement.”

9. In support of Ground 2, Mr Godwin contended that the Delegate ignored important issues raised in the psychological assessment report provided to the Delegate by the applicant’s lawyers in the applicant’s second application for a waiver of condition 8503 of his visa. The particulars in support of Ground 2 were not the subject of any written or oral submissions by counsel for the applicant.

10. Mr Godwin contended that the Delegate failed to properly consider a psychological report prepared by Dr Jacmon, dated 5 November 2012, provided by the applicant’s legal advisors to the Delegate in support of the applicant’s second application for a waiver of condition 8503 (“the Jacmon Report”). Mr Godwin submitted that the psychological report diagnosed for the first time that both the applicant and the applicant’s wife are suffering from a mixed anxiety, depressive disorder.

11. The Minister has power to waive condition 8503 of the applicant’s visa, if a delegate of the Minister is satisfied that compelling and compassionate circumstances have developed over which the applicant has no control, and those circumstances resulted in a major change to the applicant’s circumstances. Where the Minister has previously refused to waive the condition, the decision maker must be satisfied that the circumstances are substantially different from those considered previously.

12. In support of the first waiver application made on 2 October 2012, the applicant’s legal advisors provided a letter in support to the Department. The letter submitted that the applicant has developed substantive ties to the Australian community, is married to an Australian citizen, his wife has developed substantial emotional and physical dependency on the applicant, and his wife sustained serious multiple injuries causing her to rely on the applicant for emotional and physical support. The letter also submitted that the applicant was seeking consideration of the waiver on the grounds of the current political turmoil in Egypt and the applicant’s fear if he was to return to his home country. The letter attached a medical report stating that, inter alia, the applicant’s wife suffers episodes of depressed mood.

13. In relation to the refusal of the first waiver application, a different delegate (“the First Delegate”) provided reasons that included that marriage to an Australian resident would not normally be considered to be beyond the control of a waiver applicant and that the First Delegate was not satisfied that the applicant is the only person who can provide care to the applicant’s wife. The First Delegate noted that the applicant’s wife’s injuries occurred in 1988 and were in existence prior to the applicant’s visa grant and arrival in Australia. The First Delegate also noted that the applicant and his wife reside on the same property as the applicant’s wife’s parents and immediate family members. The First Delegate stated that there had been no information provided to show that the care and support that the applicant’s wife was receiving prior to her relationship with the applicant could not continue or that she could not obtain care and assistance from her immediate family members.

14. In relation to the applicant’s claim to be at risk of harm if returned to Egypt, the First Delegate noted that that no new information was provided to indicate that the applicant’s personal health and well-being would be jeopardised if he was to return to Egypt. The First Delegate noted that the applicant had been refused a protection visa application and had a current request for ministerial intervention under consideration.

15. Following the First Delegate’s refusal to waive condition 8503, on 13 November 2012, the applicant’s legal advisors lodged a second application for a waiver of compliance with condition 8503. The legal advisor’s letter state that the applicant’s wife would be aggrieved by a decision not to allow the applicant to apply for a substantive visa onshore. The letter made the further submission:

    “Since our client’s initial arrival in Australia he has developed substantive ties to the Australian community. He is married to an Australian citizen and the couple have been in a long standing relationship with the Australian partner developing substantial emotional and physical dependency on her husband.

    His Australian citizen spouse has sustained serious multiple injuries and relies on her husband for emotional and physical support – refer to attached psychological assessment report from Dr John Jacmon.”

16. The applicant’s legal advisors enclosed a copy of the Jacmon Report which stated that he assessed the applicant and the applicant’s wife on 1 November 2012 and 5 November 2012. The Jacmon Report commences with conclusions on the following basis:

    “The assessment has gathered considerable information on the relationship between Mr (Applicant) and Ms Donovan (his wife), and particularly her dependence on him.”

17. The Jacmon Report then stated that the applicant’s wife derives extensive emotional support from the applicant as well as essential practical help in her day to day life. It states that she is highly dependant on her husband. It states that, given the applicant’s wife’s serious disability, she is highly dependant on the applicant for daily household tasks, transport to and from work and personal care. It referred to the applicant’s mother who had been providing comprehensive support to the applicant’s wife, however, is no longer able to do so because of the growing demands of her own four children. The Jacmon Report concluded that the applicant’s wife suffers from “a mixed anxiety depressive disorder”. The Jacmon Report said that the disorder added to the distress suffered by her from her serious and continuing disability. The Jacmon Report opined that the disorder appeared to be deep seated and unlikely to resolve in the short term.

18. The Jacmon Report also opined that the loss of the applicant from her day to day life would have a devastating effect on her psychological health and that she is likely to experience increasing difficulty in remaining at work and eventually will be forced to consider drawing on the disability pension. It stated that the expected deterioration of her mental health would lead to an increasing risk of institutionalisation. It stated that the applicant’s wife did not wish to move to Egypt and that her disability and psychological state “reveal compassionate circumstances”. It concluded that “failure to recognise her ongoing intensive needs for her husband would result in irreparable harm and continuing hardship to an Australian citizen.” The Jacmon Report noted that the applicant’s wife works full time in a customer service call centre for a telecommunications company and that the applicant drives her to and from work every day because her disabilities do not permit her to drive.

19. In the psychological assessment summary of the Jacmon Report, it is stated that “It was hypothesised that they (the Applicant and his wife) had developed symptoms of anxiety and depression”.

20. The Jacmon Report concluded that the applicant also suffers from a “mixed anxiety depressive disorder”. It also referred to a statement by the applicant’s wife. He also referred to a statement by the applicant’s wife’s mother who said as follows:

    “[I] cannot look after my own daughter Haylie because I have four younger children of my own in which need my full attention 24/7.

    Haylie has a left army paralysis and also needs somebody to look after her physically but unfortunately I can not give her all my attention which makes her struggle on a day to day living basis.”

21. Whilst the Jacmon Report referred to his diagnoses of the applicant and his wife as suffering from a depressive disorder, there is no explicit reliance or submission made arising from the Jacmon Report by the applicant’s legal advisors. As quoted above, the applicant relied on his substantive ties to the Australian community, his marriage to an Australian citizen, the dependence of his wife upon him for emotional and physical needs, his wife’s multiple injuries and her reliance on the applicant for serious emotional and physical support. Other than attaching the Jacmon Report, there was no submission made by the applicant as to what further it is that any decision maker should draw from the provision of the Jacmon Report.

22. In its letter dated 28 November 2012 to the applicants, the Delegate noted that the applicant had provided the Jacmon Report. The letter stated that this was the applicant’s second request to waive condition 8503 of his visa. The letter correctly stated that in his first request, the applicant claimed that he wished to remain in Australia with his wife and apply for apply for a partner visa onshore and that due to injuries sustained in 1988, the applicant’s wife requires his care and support. The letter also referred to the applicant’s submission in his first waiver application that it is unsafe for him to return to Egypt given the current political turmoil.

23. The letter then correctly stated that the Migration Regulations specify  that if the Minister previously refused to waive condition 8503, then the Minister must be satisfied that the compelling and compassionate circumstances that have developed over which the applicant has no control since the grant of his visa are substantially different from those considered previously. The Delegate then stated:

    “Having considered the reasons provided in your first request and those provided in your second request, I am not satisfied that they are substantially different.”

24. The Delegate then went on to refer to the Jacmon Report and quoted from it. The Delegate accepted that the applicant and his wife did not wish to be separated and the applicant’s wife may experience a marked reduction in her quality of life and may have to leave work leading to a loss of financial independence as she relies on the applicant for transportation. The Delegate also noted that there was no information before him to suggest that the applicant’s wife could not access assistance through community services available to eligible Australian citizens and residents with disabilities.

25. The Delegate then stated that for those reasons, the Delegate had determined that the applicant’s circumstances did not meet the requirements to waive condition 8503 of his visa and the condition has not been waived.

26. Counsel for the applicant, Mr Godwin referred to  NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [20] where the Court stated as follows:

    “The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but as is apparent from Dranichnikov, extends to reviewing the Delegate’s decision on the basis of all the materials before it…

    63 It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):

    ‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’

    In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error”.

1. Mr Godwin submitted that the Delegate had not read or considered the Jacmon  Report and had based his conclusions on a submission to the Delegate prepared by an officer of the Department.

2. I do not accept that simply because the Delegate came to similar conclusions as the minute of a submission of an officer of the Department, one should find that the Delegate had not himself read the Jacmon  Report. Similarly, simply because the Delegate did not refer to the diagnoses of a depressive disorder in the applicant and his wife, I do not accept the applicant’s submission that an inference should be drawn that the Delegate had not read the Jacmon  Report. The parts of the Jacmon Report quoted by the Delegate supported the written submission made by the applicant’s legal advisors. The Delegate was not obliged to accept those submissions (See Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 and 618). Nor was the Delegate required to refer to every piece of evidence in written reasons (see Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46]).

3. As stated above, no submission whatsoever was made to the Delegate by the applicant’s legal advisors relying on the diagnoses of a depressive disorder either in relation to the applicant or the applicant’s wife.  The Delegate’s reference to the Jacmon Report, and the Delegate’s quotes from it, weigh against the drawing of an inference that the Delegate did not read or turn its mind to the contents of the report.

4. In any event, any finding that the Delegate may have made about the existence or otherwise of a depressive disorder in the applicant and or his wife, could not have addressed the underlying finding of the Delegate, both in the first waiver application and the second, that the applicant’s marriage was not a circumstance beyond his control. Moreover, it was plainly not a circumstance that is substantially different from that considered in the first waiver application.

5. In the circumstances, the Tribunal had regard to the Jacmon’s Report in considering the applicant’s second waiver application.

6. Further, and in any event, I do not accept that a claim that the applicants relied on their diagnoses of depressive disorders in support of their second waiver application emerged clearly on the materials before the Tribunal in the light of the submissions of the applicant’s legal representative. Further, the Jacmon Report makes clear that Dr Jacmon was considering the dependence of the applicant’s wife upon her husband. No reference was made about the applicant’s reliance on any diagnosis in respect of any depressive disorder he may have. As is stated above, the applicant’s wife’s depression was referred to in the medical report provided in support of the first waiver application, although a formal diagnosis was not referred to in that report.

7. A fair reading of the Delegate’s letter makes clear that the Delegate understood the relevant law that it was to apply in considering the second waiver application made by the applicant. The findings that it made were open to it on the evidence and material before it and for the reasons it gave.

Conclusion

1. In the circumstances, the Delegate complied with its obligations under the statutory regime in the making of its decision.

2. The Delegate’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

3. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  23 April 2013