SZVGE v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 218
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZVGE v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 218
File number(s): SYG 1453 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 28 February 2024 Catchwords: MIGRATION – Application for review of refusal to waive condition 8503 – whether delegate failed to consider claims as raised – whether decision legally unreasonable Legislation: Migration Act 1958 (Cth) s 41
Migration Regulations 1994 (Cth) reg 2.05
Cases cited: Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Sandhu [2016] FCA 130
Nguyen v Minister for Immigration (2001) 109 FCR 169
S395/2002 v Minister for Immigration (2003) 216 CLR 473
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 28 February 2024 Place: Sydney The Applicant: In person Solicitor for the Respondent: Mr J Pinder, Minter Ellison ORDERS
SYG 1453 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZVGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application filed on 25 September 2022 is dismissed.
2.The applicant must pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,600.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 25 September 2022, the applicant seeks judicial review of the decision of a delegate of the Minister (delegate) to refuse to waive condition 8503 which attaches to her visa.
BACKGROUND
The background and legislation relevant to the application is primarily derived from the written submissions of the Minister and is not, unless otherwise indicated, in dispute.
The applicant is a female dual citizen of Israel and Lebanon (Court Book (CB 3) at [2]) who arrived in Australia on 13 December 2013 as the holder of a Visitor (Subclass 600) visa (visa), which expired on 13 March 2014. Condition 8503 was attached to the visa and prevented the applicant from being granted a substantive visa, other than a Protection visa, while she was in Australia (CB 7).
The applicant has an extensive migration history. On 10 March 2014, she applied for a Protection visa, which was determined to be invalid. She remained in Australia as the holder of a Subclass (050) Bridging visa E (Bridging visa) and sought judicial review of that decision in which she was unsuccessful.[1]
[1] SZVGE v Minister for Immigration and Border Protection [2017] FCCA 2835 (affirmed on appeal in SZVGE v Minister for Immigration and Border Protection [2018] FCA 1873)
On 30 November 2018, the applicant made a request to waive condition 8503 to enable her to apply for a Partner visa and, on 19 December 2018, a delegate (first delegate) refused to waive visa condition 8503. The applicant sought judicial review of the first delegate’s decision and was again unsuccessful.[2]
[2] SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 35 (affirmed on appeal in SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 516)
On 14 April 2022, the applicant made a second written request for a waiver of condition 8503. The applicant appointed a registered migration agent as her representative and provided a submission and supporting evidence to the Department (CB 1 to 137). It was submitted that there had been a “major change” in her circumstances because (CB 3 to 5):
(a)the covid-19 pandemic meant there were insufficient flights to Israel and they were expensive;
(b)the applicant’s husband became a Permanent Resident on 16 September 2021. He was employed in the hospitality industry and the refusal to waive condition 8503 would “badly affect” the interests of his employer;
(c)the applicant and her husband were undergoing IVF and her husband did not have an Israeli passport; and
(d)the applicant owed a debt of $12,000 to the Commonwealth and it would be difficult for her to repay the debt offshore.
The delegate’s decision
On 2 September 2022, the delegate refused to waive condition 8503 (CB 141 to 143). The delegate was not satisfied the applicant met reg 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations).
The delegate found that Australia’s borders had opened, travel restrictions had eased and the applicant provided no evidence to indicate she was unable to depart Australia due to the COVID-19 pandemic. The delegate found the COVID-19 pandemic did not constitute a compelling circumstance preventing the applicant from departing Australia (CB 142).
The delegate considered a tax invoice issued by IVF Australia indicating that the applicant “was receiving IVF treatment”. The delegate accepted that, if the applicant departed Australia, she may be separated from her husband and this may delay their attempts to start a family. However, the delegate found the applicant was aware of condition 8503 when she arrived in Australia and that she would be able to lodge a Partner visa application offshore.The delegate found the applicant would be able to continue repaying her debt to the Commonwealth while offshore, and was not satisfied she had provided evidence that her circumstances gave rise to a basis to waive condition 8503 (CB 142 to 143).
The delegate was not satisfied reg 2.05(4)(a) of the Regulations was met and found it was not required to assess the applicant’s claims against the other criteria in reg 2.05(4) (CB 143).
Relevant legislative scheme
Section 41(2A) of the Migration Act 1958 (Cth) provides that the Minister (or delegate) may, in prescribed circumstances, waive a condition of the kind specified in s 41(2)(a) of the Act, in writing.
Pursuant to s 41(2)(a) the Regulations may impose a condition that, despite anything else in the 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 they remain in Australia. This is condition 8503.
At the time the applicant was granted the visa on 14 October 2013, condition 8503 of Schedule 8 of the 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.
The prescribed circumstances in which the Minister (or delegate) may waive condition 8503 are set out in reg 2.05(4) of the Regulations as follows:
(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.
APPLICATION TO THIS COURT
The matter was initially placed in the central migration docket, until it was docketed to me. On 2 May 2023, I made orders for the preparation of the matter and initially listed it for a hearing in October of that year. That fixture was later moved to 28 February 2024. By orders made on 2 May 2023, the applicant was granted leave to file and serve any amended application with particulars by 5 September 2023. No document was filed in accordance with that grant of leave, or at all. The applicant and the respondent were each ordered to file and serve written submissions 14 and 7 days before the hearing respectively, which occurred by reference to the initially listed October 2023 hearing date.
The applicant has appeared before me this morning in person with the assistance of an interpreter in the Arabic language. The respondent was represented by a solicitor. The applicant has been, understandably, emotional throughout making submissions today. At approximately 10:49am, the Court adjourned briefly to enable the applicant to recompose herself, after having been overcome with emotion.
The Court Book was tendered at hearing for the respondent and marked Exhibit “1R”. An Affidavit of Service was also received in relation to a question as to whether the Court Book had been served. An Affidavit filed by the applicant in support of the originating application was not read on the basis that it simply served to annex the delegate’s decision, which is now contained in Exhibit “1R”.
Applicant’s written submissions and psychological report
Annexed to written submissions filed by the applicant on 27 September 2023 was a psychological report pertaining to her husband (psychological report). The written submissions have been taken into account by the Court. However, the tender of the psychological report was rejected, for the following reasons.
Firstly, and as is acknowledged by the applicant in [5] of her written submissions, the psychological report pertains to the applicant’s husband, and not to her. The applicant’s husband was not the applicant for waiver and is not an applicant before this Court. Next, the report is dated 22 September 2023, so to the extent it was not before the delegate, it could not have been because the delegate’s decision was made more than a year earlier on 2 September 2022. As such, and as the solicitor for the respondent correctly submitted, no criticism can be made of the delegate for failing to consider a document which did not come into existence for more than a year after their decision was made. Even if those were not insurmountable obstacles to the document being relevant to the task of the Court, the husband’s psychological condition was also not an issue which was raised as being a ground for the waiver in this case before the delegate, either expressly, nor squarely on the materials, before the delegate.
At [6] of the applicant’s written submissions, the applicant said:
Therefore we both hope that the honourable Court will remit the application back to the Department to be reconsidered according to law. Application we rely on is NSD2121 of 2013.
To contextualise that submission, the solicitor for the respondent provided to the Court this morning an order from proceeding NSD 2121 of 2013, being an order of Rares J made by consent on 26 March 2014 in the Federal Court of Australia. On their face, proceedings NSD 2121 of 2013 has no bearing upon, nor do they involve the present applicant. In those proceedings, the Minister had conceded an error in the following terms (errors in original)[3]:
The first respondent concedes that the decision of the delegate of the respondent dated 23 November 2012 is affected by jurisdictional error in that the delegate did not ask himself the correct question because he did not consider the whether the applicant’s wife’s depression was a compelling and compassionate circumstance within the meaning of s 41(2A) of the Migration Act 1958 and reg 2.05(4) of the Migration Regulations 1994.
[3] Paragraph 7 of the Orders of Rares J dated 26 March 2014
However, notwithstanding the fact that apparently the error in that case involved a failure to consider whether depression of the wife of the applicant was a compelling and compassionate circumstance, I understand from a submission made by the respondent’s solicitor, that was in circumstances where that factor squarely arose on the materials. That would seem to distinguish the conceded error from the present case, even if it were not a significant question as to what precedential value a concession by consent in another matter could have in relation to the present case. For that reason, notwithstanding the fact that the applicant’s written submission will be considered, and I have read that document, the psychological report annexed thereto in relation to her husband will not be received into evidence.
Furthermore, each of paragraphs 5 and 6 of the applicant’s written submissions seek to urge upon the Court a reconsideration of the applicant’s circumstances based on a number of factors which post-date the delegate’s decision, and which will be addressed shortly. I explained to the applicant at the outset of the hearing and at a number of junctures during the hearing, that it is no part of this Court’s jurisdiction to reassess the question of waiver for itself.
The Minister’s written submissions were filed on 3 October 2023, and a list of authorities was filed two days later.
GROUNDS OF REVIEW
By her application to show cause, the applicant seeks judicial review of the delegate’s decision and raises the following four grounds of review:
1. The Delegate of the Minister erred in exercising a discretion under s41(2A) of the Migration Act 1958 and Reg 2.05(4) of the Migration Regulations 1994 to consider waiving visa condition 8503 on the basis that the Delegate failed to consider my claim that me and my husband were in the process of trying to conceive a child and were undertaking testing for fertility (IVF).
2. Also the Delegate had information about our long term relationship as we were married on 20 October 2018 and that our long standing genuine relationship could not give rise to a compelling reason.
3. The Delegate failed to consider our financial circumstances to pay debts and gave little weight to the claim and the Delegate failed to consider whether grant of the waiver request might have resulted in the applicant being granted a bridging visa with work rights.
4. The Delegate’s decision is unreasonable.
Ground 1
The first ground of review alleges that the delegate erred by failing to consider that the applicant and her husband had plans to start a family and were undertaking testing for IVF fertility treatment. When asked to speak to this ground, the applicant made submissions which can be summarised as follows.
The applicant said that she is “really tired of how much [she has] spoken about this”,[4] by which I take that to be a reference to speaking about her IVF treatment or the visa process in general. The applicant said that it has been a “long time” and she has been “saying the same thing”.[5] She said that it affects her mentally and she does not “want to sit and talk about things like that”.[6] The applicant said that she had been trying for a long time with IVF treatment and that “it is not working out”.[7] She said that there are no other issues for her other than mental health. The applicant said that the Department of Immigration says that she can go to Israel, but that she cannot because that would either mean leaving her husband here, or him being in Lebanon. The applicant says that she and her husband must undertake IVF treatment in Australia. The applicant says that her husband cannot go to Israel with her, and she says that she cannot go to Lebanon with him. The applicant again reiterated the need to be in Australia in order to undertake IVF treatment.
[4] Transcript 28 February 2024 TS8.45
[5] Transcript 28 February 2024 TS8.45
[6] Transcript 28 February 2024 TS8.45
[7] Transcript 28 February 2024 TS9.10
At hearing the solicitor for the respondent initially addressed the applicant’s opening statement that she is really tired about how much she has had to speak about “this”. The solicitor for the respondent points out (for the purposes of the record) that the time at which the applicant made that statement was the very outset of her oral submissions to the Court, and only some minutes after the comfort break referred to at [16]. The solicitor for the respondent submitted that if there was any suggestion that somehow the applicant was tired of the submissions because she had been having to address the Court at length this morning, such that there was any suggestion that she was not being afforded procedural fairness, that was not borne out. The Court has certainly attempted this morning to assist the applicant throughout what has been a visibly difficult hearing for her. However, I am satisfied from my observations of the hearing that the applicant has been sufficiently capable of participating in it, notwithstanding that at some junctures she has been emotional. To the extent that the applicant made submissions that she is tired of speaking “about things like that”[8], the Court understood this to be a broader submission, in the sense that the applicant is fatigued by the process of seeking to have condition 8503 waived in respect of her visa, and possibly the disappointing process of unsuccessful attempts to conceive.
[8] Transcript 28 February 2024 TS8.45
In respect of the ground as it is raised, the applicant’s complaint fails at a factual level. The delegate (CB 142 to 143) expressly referred to the applicant’s claim that she wanted to start a family, and considered her evidence that she was undergoing IVF. The delegate was nonetheless not satisfied that a period of separation from the applicant’s husband, which may delay their attempts to start a family, established compassionate circumstances.
It was open to the delegate to find that the applicant’srelationship and her plans to start a family with her husband were not compassionate circumstances within the meaning of reg 2.05(4) of the Regulations: see Nguyen v Minister for Immigration (2001) 109 FCR 169 at [12] per Marshall J and Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272 at [25] per Kenny J. Insofar as ground 1 expresses disagreement with the approach taken by the delegate as to whether they were satisfied on the facts and evidence before him that the circumstances were “compassionate”, the mere fact of disagreement with the delegate’s conclusion or reasoning is not indicative of error but seeks impermissible merits review: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Contrary to the allegation in ground 1, the delegate did consider the material which pertained to IVF. In one sense, it went further. The material itself (CB 111) is a single-page document, tax invoice from IVF Australia dated 30 September 2019. The delegate considered this as being evidence that the applicant “was receiving IVF treatment”. However, the document itself shows no more than as at a point in time in 2019 the applicant was undergoing:
Ovulation Monitoring Services for Artificial Insemination
Planning and Management for FSH Insemination
Semen Preparation
On its face, the document seems to indicate that the applicant was undergoing monitoring/testing and planning for potential IVF treatment. The applicant acknowledges as much in ground 1 by her description that she was “undertaking testing for fertility (IVF)”. To the extent that the applicant says that the delegate failed to consider that she and her husband were desirous of starting a family, that claim was expressly considered. Given that the condition 8503 waiver application, the subject of this review was made in April of 2022, there was in fact no evidence of ongoing IVF treatment. It was, on one view, generous of the delegate to take the evidence at the height at which it did. I am prepared to accept from what the applicant has said today from the Bar table that, giving her the benefit of the doubt, that treatment has been ongoing. However, it remains the case that there was no evidence of ongoing treatment before the delegate. Notwithstanding that fact, the delegate did clearly consider the claim in relation to IVF. It properly (if not generously) set out that claim, and addressed it.
To the extent that in oral submissions today the applicant also made references to her husband’s mental health problems and to the current state of affairs in Israel, as I explained to the applicant, in relation to the mental health issues, the report which is being rejected was dated 22 September 2023, which is more than a year after the delegate made their decision.
Similarly, the situation in Israel (in particular since 7 October 2023) which was also approximately 11 months after the delegate made its decision, is not a matter which can relevantly impact on my assessment of whether or not the delegate’s decision was made at that time (2 September 2022) according to law, and based on the materials before it at that time. As I expressed to the applicant, notwithstanding the sympathy the Court has for her predicament, those are not matters which affect this review.
As the solicitor for the respondent submitted specifically in relation to the situation in Israel at present, whatever avenues may be available to the applicant, remittal of this matter on the basis of that circumstance is not one of them. I agree with the submissions of the respondent that the ground as raised fails at a factual level.
Ground 2
Turning to ground 2, while expressed as a double negative such that the ground is initially difficult to grasp, it essentially alleges that the delegate failed to consider that the evidence of the applicant’s longstanding and genuine relationship with her husband could give rise to a compelling reason, and thus presumably, satisfy the criteria of sub-regulation 2.05(4) of the Regulations for waiver of condition 8503. When asked to speak to this ground, the applicant said that she and her husband had been together for eight years and the delegate did not take this into consideration. In contrast, the respondent’s solicitor submitted today that this circumstance was expressly taken into consideration and while the delegate did not go into particular detail in that regard the circumstance was nonetheless sufficiently considered as against the sub-regulation.
A review of the delegate’s decision makes plain that the delegate was aware that the applicant had married her husband on 20 October 2018 and, after acknowledging that if the applicant were to depart Australia this could result in a period of separation from him, as well as their attempts to start a family, the delegate made a finding that the applicant was aware of the condition which was attached to her visa upon arrival in Australia. That can be seen from the visa grant notice at CB 7, which includes, among other conditions, the “no further stay condition” on the applicant’s visitor visa.
The corollary of that finding is, in essence, that the applicant was aware that the condition attached to her visa and that, as such, by entering into the relationship and subsequently the marriage to her husband, these were circumstances within her control. Therefore, the consequences which might be adverse to her if she were to depart were ones which were capable of being foreshadowed and understood at that time.
In reply, the applicant specifically made submissions about not knowing in advance that she would, for example, struggle to conceive and that she would not have yet started a family. However, while any infertility issues the applicant may be suffering may not be something that could be said to be within her control, they are circumstances which are subsequent to her entry into the relationship with the husband. For the reasons set out in the preceding paragraph, the applicant understood that she was travelling on a tourist visa to which condition 8503 attached. As such, those are said by the respondent to be risks which the applicant assumed for herself. I agree.
Overall, the circumstance of the applicant’s marriage was something of which the delegate was both aware and addressed. I otherwise agree with the Minister that this ground mischaracterises the delegate’s actual findings. The delegate plainly considered and accepted that the applicant was married in 2018 but was “not satisfied” that her circumstances were “compassionate” as she was aware of condition 8503 when she arrived in Australia, and it was open to her to depart Australia and lodge a Partner visa application offshore.
To the extent that this ground expresses disagreement with the delegate’s finding that the applicant’s long-term relationship did not constitute a compassionate circumstance justifying the waiver, for the reasons outlined at [40] above, it is incapable of establishing a jurisdictional error on the part of the delegate.
Accordingly, ground 2 is not made out.
Ground 3
The third ground of review is that the delegate allegedly failed to consider the applicant’s financial circumstances and gave little weight to that. The ground further alleges that the delegate failed to consider whether the grant of the waiver might have resulted in the applicant therefore being granted a bridging visa with work rights. When asked to speak to this ground, the applicant says, if “they allow me to work, I will pay them the money,”[9] and that she is presently paying $100 a month in respect to her existing debt to the Commonwealth.
[9] Transcript 28 February 2024 TS11.5
This ground seeks to recast the claims that were raised before the delegate in relation to the applicant’s financial circumstances. In a submission provided to the Department on 14 April 2022, the applicant’s representative argued that (CB 5 at [7]):
[SZVGE] still owes a debt to Australian government (approximately AUD12,000) …If she and [the applicant’s husband] are forced to leave Australia, it would be difficult for them to repay the debt.
The applicant did not claim that she was unable to pay her debt to the Commonwealth because she did not have work rights. She provided supporting documents that showed she had agreed to repay her debt to the Commonwealth at a rate of $100 per month from 2 April 2020, with the payments being deducted by direct debit from a card in her husband’s name (CB 133 to 134) and copies of joint bank account statements in both parties’ names (CB 22 to 45) which demonstrated that she and her husband had a regular income and were able to accumulate savings.
On judicial review, the delegate’s decision must be considered in the light of the bases upon which the waiver request was made, not upon an entirely different basis which may occur to an applicant at some later stage in the process: S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [1] per Gleeson CJ.
The delegate expressly considered (CB 143) the claim that was raised about the applicant’s financial circumstances and was satisfied that she would be able to continue to repay her debt to the Commonwealth whilst offshore. That finding was reasonably open based on the documentary evidence she provided to the delegate in relation to her financial circumstances. I agree.
At hearing today, the respondent’s solicitor submitted that the delegate’s decision is not in error because it found that the applicant could still service that debt to the Commonwealth from overseas. I agree with that submission, and would add to it that while a decision-maker is required to deal with the claims as they squarely arise on the materials, they are not required to cast about to create bases on which an applicant might be said to be seeking a waiver or an exemption, nor to construe or apply materials in a way for which they are not logically contended: see Minister for Immigration and Border Protection v Sandhu [2016] FCA 130 per Siopis J (Sandhu) (albeit while raised in a different context). In the present case, the applicant’s contention in respect of work rights is new. The delegate dealt with the claims in relation to the applicant’s financial circumstances as they arose, and as already observed, found that the applicant could continue repaying her debt and to meet her financial commitments while offshore. I am not satisfied that the delegate was required to go further.
Ground 3 is not made out.
Ground 4
By ground 4, the applicant alleges that the decision of the delegate is unreasonable. Before inviting the applicant to address this ground, I sought to summarise for her the concept of legal unreasonableness, as distinct from any subjective view she might have that the decision is unreasonable because it was unfavourable to her.
In response, the applicant says that the decision of the delegate was unreasonable because, “we’ve got two countries here. We’ve got Israel, and we’ve got Lebanon, and “he” (which I take to be a reference to the delegate):[10]
told us to go there, and if we go there, like, it’s – I might not be able to come here. If we were together in the same country, yes, maybe we could be together and we could start a family, but that can’t be, and, plus, there is war there.
[10] Transcript 28 February 2024 TS11.31 to 36
In this regard the applicant made submissions in reply to the effect that she is 35 years old, and her “application might take another three years”,[11] that the Department of Immigration could “give [her] a hard time for another three years”,[12] and that she does not want/cannot to go back to Israel because of the conflict there. These are all merits based submissions.
[11] Transcript 28 February 2024 TS15.19 to 23
[12] Transcript 28 February 2024 TS15.21
In response in submissions made today, the solicitor for the respondent said that, to the extent that ground 4 is a conclusory allegation (by reference to grounds 1 to 3) there is no error for the reasons already submitted. In this regard, I agree, and for the reasons now already given in respect of each of those grounds, none of which has been made out, if the ground is a conclusory allegation, it itself is not made out. The solicitor for the Minister submitted that if it was directed to some other species of error, none has been demonstrated.
In relation to the submission that, if the applicant was to depart Australia in order to seek a spouse visa offshore, she may not be able to return, the Minister submits this was not raised before the delegate as being a basis upon which waiver ought to have been granted: see Siopis (supra) at [27]. The respondent also points to this as being the very nature of visas, saying at it is difficult to understand how, without more, it could also be a basis for compelling and compassionate circumstances for the purposes of sub-reg 2.05(4) of the Regulations. I agree.
Legal unreasonableness is a “stringent” standard, and a decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material. The question is “whether a decision-maker could reasonably come to the conclusion” reached. For the reasons outlined above, a reasonable and rational decision maker could have reached the same conclusion on the available materials as the delegate and it follows that no legal unreasonableness is shown: see Sandhu (supra) at [45] to [46] per Siopis J.
The delegate plainly appreciated the nature of the applicant’s case, and addressed the case she sought to make. The delegate took into account the “full circumstances” of the applicant in assessing her circumstances as required by reg 2.05(4).
The applicant’s judicial review application fails to identify any jurisdictional error in the delegate’s decision and approach or for the relief sought by the applicant.
CONCLUSION
Overall, I am satisfied that the delegate properly set out and appears to have understood sub-reg 2.05. The delegate relevantly applied sub-reg 2.05 as against the claims as raised, based on the materials before it at that time and based on world circumstances as they existed at that time. I am satisfied that the decision of the delegate is not affected by a jurisdictional error, as alleged, or at all. Absent jurisdictional error, the decision is a privative clause decision and should be dismissed, and I will so order.
As the Court indicated to the applicant during the course of the hearing, and was alluded to by the solicitor for the respondent, it may be that the change in circumstances in Israel may open to the applicant other avenues that she may wish to pursue, including Ministerial intervention. Those are avenues about which she should inform herself.
However, the application is dismissed.
COSTS
Consequent upon the dismissal of the application, the Minister seeks an order that the applicant pay costs fixed in the sum of $5,600. When asked what the applicant wished to say about whether costs should follow the event, and if so, in what amount, she said, “I don’t know” and made no further submissions. I am satisfied in this matter that costs should follow the event. I am additionally satisfied that the amount sought is reasonable by reference to the nature of the matter and also the Court’s scale, which is substantially higher than the amount sought.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 6 March 2024
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