SZVGE v Minister for Immigration (No.2)
[2020] FCCA 35
•25 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGE v MINISTER FOR IMMIGRATION (No.2) | [2020] FCCA 35 |
| Catchwords: MIGRATION – Review of a decision of a Ministerial delegate – refusal to waive no further stay condition – whether the delegate failed to make necessary enquiries considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 150 |
| Applicant: | SZVGE |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 66 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms A Carr |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The application as amended on 11 April 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 66 of 2019
| SZVGE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of a delegate of the Minister (delegate) made on 19 December 2018. The delegate refused an application for waiver of condition 8503 attached to the applicant’s visa which prevented her from applying for a different form of visa. The applicant sought the waiver of the condition because she wishes to remain in Australia with her husband.
The following statement of background facts is derived from the submissions of the Minister filed on 2 September 2019.
The applicant is a female citizen of Israel who was granted a visitor (Subclass 600) visa (the visitor visa) on 14 October 2013.[1] Condition 8503 attached to the visitor visa, which required that the visa 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.
[1] Court Book (CB) 84
The applicant subsequently arrived in Australia on 13 December 2013 and her visitor visa ceased on 13 March 2014. The applicant unsuccessfully applied for a protection visa and remained in Australia as the holder of a bridging visa.[2] It is for that reason that she was allocated a pseudonym in these proceedings.[3]
[2] CB 84-85
[3] see SZVGE v Minister for Immigration [2017] FCCA 2835
On 30 November 2018, the applicant applied for waiver of condition 8503.[4] The application was made on the basis that she had married on 10 December 2017 and wanted to remain in Australia with her husband to start a family. She claimed she had a miscarriage and was very depressed. Her mother and siblings departed Australia and were suffering. The applicant claimed her relationship with her husband was genuine and provided evidence in support of their relationship. She also claimed her circumstances were compelling and compassionate because she has a “serious problem to return to Israel” and cannot return anywhere else. The applicant stated that she intended to apply for a partner visa if the condition was waived.[5]
[4] CB 1-82
[5] CB 2
In support of her waiver application, the applicant provided a copy of a page from her passport,[6] her marriage certificate,[7] rent receipts,[8] bank statements,[9] Facebook messages,[10] and text messages.[11]
[6] CB 3
[7] CB 4-5
[8] CB 6-9
[9] CB 10-21
[10] CB 22-54
[11] CB 55-82
On 17 December 2018, a written submission was prepared by a Departmental officer for the delegate’s assistance.[12]
[12] CB 83-87
Relevant legislative scheme
Section 41(2A) of the Migration Act 1958 (Cth) (Migration Act) provides that the Minister (or delegate) may, in prescribed circumstances, in writing, waive a condition of the kind specified in s.41(2)(a) of the Migration Act.
Section 41(2)(a) authorises the Migration Regulations 1994 (Cth) (Regulations) to impose a condition that, despite anything else in the Migration Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind) while he or she remains in Australia. This is condition 8503.
At the time the applicant was granted the visitor 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, whilst the holder remains in Australia.
The prescribed circumstances in which the Minister (or delegate) may waive condition 8503 are set out in regulation 2.05(4) of the Regulations. Regulation 2.05(4) relevantly provides:
(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 delegate
On 19 December 2018, the delegate refused the waiver request. The delegate was not satisfied that the applicant met regulation 2.05(4) and refused to waive condition 8503.[13]
[13] CB 88-93
The delegate accepted that the applicant and her husband were married on 20 October 2018 but found they made the mutual decision to enter into a relationship and try to start a family. Accordingly, the delegate did not accept the circumstances were outside the applicant’s control. The delegate accepted the applicant’s miscarriage and depression were outside her control.[14]
[14] CB 92.4
The delegate acknowledged the circumstances were compassionate in that the applicant wanted to remain in Australia with her husband.[15]
[15] CB 92.5
The delegate found the applicant’s statement that she had a serious problem to return to Israel was general and did not demonstrate she would have problems upon her return to Israel. The delegate acknowledged a period of separation may affect the applicant and her husband’s decision to start a family, but did not find this was sufficiently forceful to waive the condition. The delegate also found that it was open to the applicant to seek treatment in her home country for depression if required.[16]
[16] CB 92.8
The delegate had regard to the supporting evidence provided in relation to the applicant’s relationship and acknowledged that the applicant’s departure may result in separation from her husband. However, the delegate found the applicant entered into the relationship knowing she had no entitlement to remain permanently in Australia.[17] The delegate accepted any separation may cause a level of emotional and financial stress, but found there was an offshore visa pathway available to the applicant and any separation may only be temporary.[18]
[17] CB 92.9-93.1
[18] CB 93.2
The delegate considered the applicant’s circumstances in their entirety but did not find they were sufficiently forceful to waive the condition.[19]
[19] CB 93.2
The delegate was not satisfied the applicant met regulation 2.05(4) and refused to waive condition 8503.[20] Such satisfaction of regulation 2.05(4) was required to enliven the delegate’s discretion to grant the waiver.[21]
[20] CB 93.3
[21] Verlicia v Minister for Immigration [2004] FCA 1529
The current proceedings
These proceedings began with a show cause application filed on 11 January 2019. The applicant now relies upon an amended application filed on 11 April 2019. There are seven grounds in that application:
1.The Delegate of the Minister failed to apply the law and waive the No further stay condition 8503 while she had before her compelling circumstances which is outside my control such as depression and a miscarriage.
2.The Delegate failed to take into consideration my fear of harm to return to Israel and the extensive evidence of co-habitation and the fact that I cannot return anywhere else, especially I have no right to enter Lebanon as the holder of Israeli passport.
3.The Delegate failed to look at my refugee application which was refused not on the basis that I do not have a well founded of harm but on the basis that I hold Israeli passport and I was born in Lebanon. The Delegate failed to see my compelling circumstances especially my inability to return to either Israel or Lebanon.
4.Contrary to the Delegate's findings I have problem to return to Israel.
5.The Delegate failed to take into account that any separation from my husband will harm me as well as my husband and is sufficiently forceful and harmful.
6.The Delegate failed also to act upon the financial, emotional and physical commitment and any separation will cause prejudice to me and to my husband and the lodgement of an application offshore is not possible because of the reasons outlined in my request to have 8503 condition waived, in particular, the ability to lead a safe life either in Lebanon or Israel and the inability of my husband to join me in either Israel or Lebanon (Lebanon a country which I cannot enter) and Israel, a country my husband cannot enter.
7. I believe that the decision of the Delegate is affected by error of law as it misinterpreted the definition of compelling and misapplied the law by failing to recognise my compelling circumstances.
The matter came before me for a show cause hearing on 11 September 2019. At that time I decided that the third ground of review in the amended application was arguable and ordered the Minister, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), to show cause why relief should not be granted in relation to that ground.
I gave the parties the opportunity to file and serve further evidence and submissions.
The matter was heard on a final basis on 8 November 2019.
In addition to the court book filed on 4 March 2019, I received at the trial the applicant’s affidavit made on 15 October 2019, to which are annexed a number of documents.
Both the applicant and the Minister provided additional submissions for the final hearing.
Consideration
The applicant contends that there are exceptional circumstances supporting the waiver of the no further stay condition and that the delegate failed to take into account the applicant’s migration history, in particular her protection application. The applicant was born in Lebanon and was taken to Israel as a child by her father, who was a member of the South Lebanon Army. Although she has Israeli citizenship, she does not wish to return there because of perceived discrimination against Muslims. Her husband is a citizen of Lebanon and cannot enter Israel. The applicant contends that she and her husband are on the horns of a dilemma which was not properly considered by the delegate. She, as the daughter of a South Lebanon Army officer, cannot go to Lebanon and her husband cannot go to Israel. The only prospect of them being able to continue to live together is to live in Australia.
The Minister contends that the decision of the delegate is not affected by any jurisdictional error. I agree. In relation to the show cause order, I accept the Minister’s contentions as follows.
Ground 3 contends that the delegate failed to look at the applicant’s earlier protection visa application and find that compelling circumstances existed for reason of the applicant’s inability to return to either Israel or Lebanon.
The applicant relevantly submitted in her No Further Stay Waiver Request (the Request) that “I have a serious problem to return to Israel and I am unable to return anywhere else”.[22] No supporting evidence or further submissions were made to the delegate in relation to this statement.
[22] CB 2
Under the heading “Summary of Request” in the “Submission to Delegate” dated 17 December 2018, it was noted that the applicant had applied for a protection visa on 19 October 2017 which was invalid.[23]
[23] CB 85
There was no obligation on the delegate to provide reasons,[24] however, reasons were provided on 19 December 2018.[25] The reasons of the delegate set out exactly the applicant’s claim made in relation to her return to Israel or “anywhere else”:[26]
… Additionally the client claims that she has a serious problem to return to Israel and cannot return anywhere else. However, this statement is general and does not demonstrate that the client would have problems upon her return to Israel.
[24] See Salazar v Minister for Immigration [2001] FCA 899 at [26] per Allsop J
[25] See Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ
[26] CB 92
The applicant’s claim relating to her return to Israel or “anywhere else” was not centrally relevant to the decision being made in circumstances where the applicant had not taken the opportunity to provide supporting documentation.[27] The delegate was also correct to observe that the claim was general, and by doing so, did not misunderstand or fail to appreciate the claim being made.[28]
[27] cfSoliman v University of Technology, Sydney (2012) 207 FCR 277 at [44], [55] per curium
[28] cf Karan v Minister for Immigration [2017] FCA 872 at [27] per Siopis J; cf Farhat v Minister for Immigration [2018] FCA 93 at [34]-[37] per Kenny J
In the reasons for decision, the delegate did not refer to the applicant’s previous application for a protection visa.[29] As noted above, the applicant’s previous application for a protection visa was referred to in the “Submission to Delegate”, but was not referred to by the applicant in the Request or after.
[29] cf CB 85 (see [5] above)
The existence of the protection visa application was not an obvious inquiry about a critical fact, the existence of which could easily be ascertained so as to constitute a failure to review.[30] The applicant’s submission was that she had a “serious problem to return to Israel and [she was] unable to return anywhere else”. In the absence of any particulars to this general claim, no critical fact was raised which could have been easily ascertained. Given the general nature of the claim, the applicant may have been referring to matters outside those advanced in her previous application for a protection visa and, therefore, the delegate would have been conducting a “roving inquiry”[31] or “something akin to a judicial inquiry”.[32]
[30] See Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
[31] See MZAPB v Minister for Immigration [2016] FCA 1393 at [9] per Logan J
[32] See Thongpraphai v Minister for Immigration [2000] FCA 1590 at [13] per O’Loughlin J
It was incumbent on the applicant to present her claims and evidence in support of her Request. There was no obligation on the delegate to advance the Request on behalf of the applicant.[33] It is possible that, if the applicant had explained the detail of her and her husband’s dilemma to the delegate, it might have affected the outcome. Unfortunately for her, she did not do so. As the delegate’s decision was a valid one, only the Minister can change it.
[33] See Thongpraphai at [14]
To the extent that the other grounds in the amended application have any continuing relevance, I accept the Minister’s submissions in relation to those grounds.
Ground 1
Ground 1 contends that the delegate failed to waive condition 8503 due to compelling circumstances outside her control such as depression and a miscarriage. The delegate expressly acknowledged the applicant’s claim that she had a miscarriage and was depressed, but did not find this sufficiently forceful to waive the condition. The delegate found it was open to the applicant (if required) to seek treatment in her home country for depression. Properly understood, this complaint simply expresses disagreement with the delegate’s findings and invites impermissible merits review.[34]
[34] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Ground 2
Ground 2 argues that the delegate failed to consider:
a)the applicant’s fear of harm of returning to Israel;
b)the extensive evidence of co-habitation; and
c)the fact that she also cannot return anywhere else.
This complaint fails on the facts. The delegate found the applicant’s claim in her waiver application that she would face “serious problem” in Israel lacked further detail and was entirely unsupported by evidence. Accordingly, the delegate found this statement was general and did not demonstrate that she would have problems on her return to Israel.
Whilst the applicant may have provided detailed protection claims in a previous protection visa application, there is no evidence that those claims and associated material were before the delegate. The delegate was not required to make the applicant’s case for her and it was her obligation to provide evidence and advance her arguments in sufficient detail to enable the delegate to reach the requisite state of satisfaction.[35] The delegate expressly had regard to the supporting evidence of the applicant’s relationship including photos, evidence of rent, bank statements and communications and acknowledged her departure from Australia may result in separation from her husband. However, the delegate found these circumstances were not sufficiently forceful to waive the condition. These findings were reasonably open.
[35] Abebe v Commonwealth (1999) 197 CLR 150 at [187]
Ground 4
Ground 4 states that: “contrary to the delegate’s findings I have problem to return to Israel”. This is not a proper ground of review and seeks impermissible merits review.[36]
[36] Wu Shan Liang
Ground 5
Ground 5 argues that the delegate failed to take into account any separation from the applicant’s husband.
This ground cannot be made out because the delegate expressly accepted that any separation may cause a level of emotional and financial stress, but ultimately found the applicant entered into the relationship knowing she had no entitlement to remain permanently in Australia. The delegate also found there was an offshore visa pathway available to the applicant and any separation may only be temporary.
Ground 6
Ground 6 contends the applicant is unable to lodge a visa application offshore because of “the reasons outlined in my request to have 8503 condition waived, in particular, the ability to lead a safe life either in Lebanon or Israel and the inability of my husband to join me in either Israel or Lebanon (Lebanon a country which I cannot enter) and Israel, a country my husband cannot enter”.
This ground disputes the delegate’s factual findings and merely provides a submission containing information that was not before the delegate. The applicant made no claim to the delegate that she could not return to Lebanon or that her husband could not enter Israel.
Ground 7
Ground 7 contends the delegate misinterpreted the definition of “compelling” and “misapplied the law by failing to recognise my compelling circumstances”.
There is no basis for the applicant’s contention that the delegate misapplied “compelling circumstances”. The delegate considered the meaning of “compelling” and noted it was not defined in the legislation and was to be given its ordinary meaning. The delegate found “compelling” meant “forceful or driving”. The delegate was correct to construe “compelling circumstances” to mean circumstances which force or drive the decision maker to decide whether or not the jurisdictional fact exists for the exercise of discretion.[37] The delegate understood that the word “compelling” was used in the context of regulation 2.05(4) in its ordinary sense and had to be considered in light of the facts of the case presented to her.[38] Further, the question of whether something is “compelling” involves a level of judgment by the individual decision-maker and that judgment is entrusted to the delegate pursuant to the Migration Act. It is not a matter for the Court.[39]
[37] Babicci v Minister for Immigration (2005) 141 FCR 285
[38] SZLPH v Minister for Immigration [2018] FCCA 231
[39] Boutros v Minister for Immigration [2019] FCA 851 at [25]-[26]
Conclusion
I conclude that the applicant is unable to establish that the decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 February 2020
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