SZVYB v Minister for Immigration

[2020] FCCA 587

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYB v MINISTER FOR IMMIGRATION [2020] FCCA 587

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by a delegate of the Minister for Immigration and Border Protection not to waive a “no further stay condition” – whether the delegate misunderstood the grounds on which the waiver was sought – whether the delegate proceeded on a misunderstanding of the grounds on which the “no further stay condition” may be waived – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31(1), 41, 46(1A), 476
Migration Regulations 1994 (Cth), regs.2.01, 2.05
Migration Regulations 1994 (Cth), Schedule 1, item 1236, Schedule 2, cls.202.222, 600.611, Schedule 8, cond.8503

Cases cited:

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50

Applicant: SZVYB

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 1409 of 2017

Judgment of: Judge Manousaridis

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the Respondent: Mr L Leerdam of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1409 of 2017

SZVYB

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 April 2017 the applicant, a citizen of Lebanon, lodged with what was then named the Department of Immigration and Border Protection (Department) a completed prescribed form titled “No Further Stay waiver request” (waiver request). That is an expression that is commonly used to denote condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), which provides:

   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. The applicant made the waiver request because he wanted to “apply for long term sponsorship” while he is in Australia.

3. The applicant held a Bridging Visa E (Class WE) (Subclass 050) (Bridging visa) when he made the waiver request, having been granted that visa on 5 October 2016.[1] A document titled “Bridging Visa Grant Notice” identified the conditions attached to the Bridging visa, but condition 8503 is not one of them. It is common ground, however, and the applicant, who is not legally represented, so submitted, that condition 8503 was attached to the FA600 Sponsored Family Visitor visa (Visitor visa) on the basis of which the applicant first entered Australia; and that it was necessary for the applicant to obtain a waiver of that condition before he could apply for another visa while in Australia. The applicant was granted the Visitor visa on 3 December 2013, and he first entered Australia on 10 January 2014.[2]

   [1] CB5

   [2] CB19

4. At the beginning of the hearing before me I asked Mr Leerdam, who appeared for the respondent (Minister), by what mechanism condition 8503 applied to the applicant such that it was necessary for him to apply for a waiver of it, given that the visa to which the condition was first attached had ceased, and condition 8503 was not attached to the Bridging visa. I considered that to be a relevant question because if condition 8503 no longer applied to the applicant, there would be nothing the Minister could waive. That, in turn, would mean that the process the applicant initiated by making the waiver request would be a nullity, and the application under s.476 of the Act would likely be dismissed for futility.

5. I granted the Minister leave to file further submissions about why condition 8503 continues to apply to the applicant, and I heard the matter on the assumption shared by the applicant and the Minister that condition 8503 continued to apply to the applicant and that it was necessary for him to have that condition waived. At the end of the hearing I listed the matter for judgment on 20 March 2020, but indicated that if, after I consider the Minister’s submissions, I were to have any doubt that condition 8503 applied to the applicant, I would not give judgment but would instead notify the parties I would not give judgment and invite further submissions. For reasons I give in the next section of these reasons for judgment, I am in no doubt that condition 8503 applies to the applicant.

6. In these reasons for judgment, therefore, I do two things. First, I set out my reasons for having no doubt that condition 8503 applies to the applicant. Second, I consider the grounds on which the applicant applies for relief against the delegate’s decision not to grant the applicant the waiver request.

Is the applicant subject to condition 8503?

1. I begin with s.31(1) of the Act which provides there are to be “prescribed classes of visa”. Regulation 2.01 of the Regulations prescribes as classes of visa those set out in the items in Schedule 1 to the Regulations, one of which is item 1236 which prescribes “Visitor (Class FA)” as a class of visa.

2. Next there is s.41(1) of the Act, which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions. Subregulation 2.05(1) of the Regulations provides as follows:

   For subsection (41)(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).

3. The relevant provisions for the issue of a Visitor visa are contained in that part of Schedule 2 headed “Subclass 600 - Visitor”.

4. Subsection 41(2)(a) of the Act provides that, without limiting s.41(1), the regulations may provide that visas, or visas of a specified class are subject to:

   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 (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia . . .

5. Subsection 41(2A) of the Act provides that the Minister may, in prescribed circumstances, by writing waive a condition of a kind described in s.41(2)(a) to which a particular visa is subject under regulations made for the purpose of s.41(2)(a) or under s.41(3) (which is not relevant to the matters I must consider). The circumstances for the purposes of s.41(2A) of the Act have been prescribed by reg.2.05(4) and reg.2.05(4AA). Relevant is reg.2.05(4), which provides:

   For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

   (a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

   (i)     over which the person had no control; and

(ii) that resulted in a major change to the person's circumstances; 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.

1. Condition 8503 is one of the conditions the Minister either must impose or may impose under cl.600.611 of Schedule 2 to the Regulations.[3] That means that the Visitor visa is a class of visa that is capable of being subjected to condition 8503.

   [3] Although I speak in the present tense, I am considering the relevant provisions of the Regulations as they applied when the applicant was granted the Visitor visa.

2. The Visitor visa ceased. The next question is whether condition 8503 applies or in any event is relevant to the applicant’s desire to apply onshore for another visa. As the Minister submits, the answer is to be found in s.46(1A) of the Act, which provides:

   Subject to subsection (2), an application for a visa is invalid if:

   (a)the applicant is in the migration zone; and

   (b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

   (c)the Minister has not waived that condition under subsection 41(2A); and

   (d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

3. Subject to exceptions it is unnecessary to set out, s.46(1A) of the Act applies to prevent a person who has previously been granted a visa that is subject to condition 8503 from making a valid application for a visa while the person remains in the migration zone. That, in turn, implies that a condition 8503 that has been attached to a visa remains operative even after the visa to which it has been attached has ceased, which further implies that it is open to a person who once held such visa to apply for a waiver of the condition even after the visa has ceased.

4. I am therefore satisfied that condition 8503 applies to the applicant to prevent the applicant from making a valid application for a substantive visa, and that it was open to him to make the waiver request, even though the Visitor visa has ceased, and even though the Bridging visa was issued without condition 8503 being attached to it.

The waiver request

1. The applicant’s waiver request was based on the following:[4]

   [4] CB2

   I was refused by the Federal Court and I attach a copy for your information.

   I am a valuable person nominated by Instyle Wardrobes Pty Ltd. The sponsorship was approved & the nomination was lodged on 24 March 2017.

   Please waive my 8503 condition to apply for long term sponsorship.

2. The applicant’s being refused by the Federal Court is a reference to the judgment of Yates J in SZVYB v Minister for Immigration and Border Protection[5] in which his Honour dismissed an appeal from this Court dismissing an application for remedies in relation to a decision made by the Refugee Review Tribunal affirming a decision not to grant the applicant a protection visa.

   [5] [2017] FCA 256

3. In support of the waiver request the applicant provided a copy of a letter dated 24 March 2017 from the Department to Instyle Wardrobes Pty Ltd (Instyle). The letter confirms the Department received Instyle’s application of nomination.

Delegate’s reasons

1. The waiver request was initially analysed by a Departmental officer in a document titled “8503 Decision Record Template for ECS”.[6] The officer, who considered the applicant made the waiver request for the purpose of applying in Australia for a 457 visa, recorded the following opinions:

   a)The applicant’s decision for a 457 visa does not represent a major change to the applicant’s circumstances.

   b)The applicant’s desire to apply for a 457 visa was a decision made by the applicant and, therefore, was not outside his control.

   c)The expression “compassionate circumstances” involves the concept of “compassion”, which is a feeling of sorrow or pity for the suffering or misfortune of others, or sympathy.

   d)The word “compelling” means forceful or driving, especially to a course of action.

   e)While acknowledging the applicant’s desire to remain in Australia, and apply for a visa onshore, and that Instyle would sponsor the applicant, these matters were not sufficiently forceful to make a decision to waive condition 8503.

   [6] CB18-21

2. The delegate’s decision is recorded in a document titled “Decision Record”. The delegate understood that the applicant made the waiver request to enable him to apply in Australia for a 457 visa. The delegate found:

   a)The applicant’s decision to apply for a 457 visa did not represent a major change to the applicant’s circumstances.

   b)The applicant’s desire to apply for a 457 visa was a decision made by the applicant and, therefore, was not outside his control.

   c)The delegate acknowledged the applicant preferred to remain in Australia and apply for a visa onshore, and the delegate accepted Instyle would sponsor the applicant, and that the Department had received a nomination from Instyle. The delegate, nevertheless, was “not satisfied that the [applicant’s] circumstances are compelling”.

Grounds of application

1. The application contains the following three grounds:

   1.Contrary to the Department’s decision that 457 visa does not represent a major change to the client’s circumstances, I believe that the Department misunderstood the issue and based on the information before the Department the sponsor (Instyle Wardrobes Pty Ltd) have chosen to sponsor me and to apply for a nomination because his business needs my skills and services and such represent a major change because the Australia company initiated sponsorship and nomination as acknowledged by the Department because of the shortage of highly skilled people to carry out the nominated position.

   2.My circumstances and the desire to waive condition 8503 are sufficiently forceful to make a decision to waive the condition 8503. The Department is aware that I continue to work with In Style [sic] Wardrobes and obtained an assessment of my skills and the Department failed to ask what will happen to the company if my request is refused and what will happen if I apply from offshore and who is going to replace my services as a highly skilled, experienced chosen employee.

   3.8503 waiver is designed for cases where there are compelling circumstances and the form for waiver clearly indicates that 8503 can be waived under 457 and such was ignored by the Department.

2. The applicant, who I noted earlier is not legally represented, also made a number of submissions at the hearing.

3. Before I consider the grounds contained in the application, and the submissions the applicant made at the hearing, it would be useful to say something about the proper construction of reg.2.05(4)(a), and also to offer a number of observations about the delegate’s decision.

Construction of reg.2.05(4)(a)

1. Paragraph (a) of reg.2.05(4) contains the following elements:

   a)circumstances have developed since the applicant had been granted a visa;

   b)the applicant has had no control over the circumstances that have developed;

   c)the circumstances that have developed constitute a major change to the applicant’s circumstances; and

   d)the circumstances that have developed are compelling and compassionate.

2. The following observations may be made about the meaning of words and expressions contained in reg.2.05(4)(a) of the Regulations:

   a)“Circumstances” may be taken to mean the “condition or state of affairs” surrounding and affecting an agent.[7] Thus, reg.2.05(4)(a) is directed to the condition or state of affairs surrounding the applicant who applies for the waiver.

   b)“Control” may be taken to mean the power or ability to direct or regulate the actions of persons or things.[8]

   c)“Major”, at least in the context in which it appears, may be taken to mean substantial.

   d)The ordinary meanings of “compassionate”, when used as an adjective, include “affected with, characterised by, or expressing compassion; pitiful, sympathetic”; and “fitted to excite compassion; pitiable, piteous”.

   e)“Compel” means “to urge irresistibly, to constrain, oblige, force”.[9] That is how the plurality in Plaintiff M64/2015 v Minister for Immigration and Border Protection construed “compelling” in relation to reasons in cl.202.222 of the Regulations (references omitted):[10]

   [T]he state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application.

   [7] Oxford English Dictionary online

   [8] Oxford English Dictionary online

   [9] Oxford English Dictionary online

   [10] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, at [31]

Some observations on the delegate’s decision

1. There are three observations that may be made about the delegate’s decision. First, the delegate appears to have identified as the relevant change in the applicant’s circumstances the applicant’s decision to apply for a 457 visa. That is apparent from what the delegate said: the “decision to apply for a 457 visa does not represent a major change” to the applicant’s circumstances; and the “desire to apply for a 457 visa was a decision made by the” applicant “and is therefore not outside his control”. The applicant’s desire to apply for a 457 visa, however, cannot reasonably be considered to have been the relevant change in the applicant’s circumstances. The relevant change in the applicant’s circumstances was Instyle’s wishing to sponsor the applicant and, to that end, lodging a nomination application with the Department. The question, therefore, the delegate ought to have considered is whether Instyle’s offering to sponsor the applicant represented a major change in the applicant’s circumstances, and, if so, whether the applicant had no control over those circumstances.

2. Second, although the delegate referred to the meaning of “compassionate” circumstances, the delegate made no finding about whether there were compassionate circumstances; the delegate only found that the applicant’s circumstances were not compelling. I am not prepared to find, however, that the delegate did not consider whether the circumstances it considered were compassionate, but that it only considered whether they were compelling. The delegate set out the meaning of “compassionate” as well as “compelling”. The more likely inference is that the delegate considered whether the changes in the applicant’s circumstances were both compassionate and compelling.

3. The third observation relates to the materiality of the first two observations I have made. First, although the delegate appears to have mischaracterised the relevant change in the applicant’s circumstances, when the delegate considered whether the change in the applicant’s circumstances were compelling it proceeded on the basis that the relevant change in circumstances was Instyle’s offer of sponsorship to the applicant. Second, even if it is assumed the delegate only considered whether the circumstances were compelling, but did not consider whether the circumstances were compassionate, that could not have made any difference because the requirement that the changes in an applicant’s circumstances be compassionate and compelling are cumulative. That is, the delegate was required to be satisfied the circumstances were both compassionate and compelling.

Applicant’s submissions

1. At the hearing the applicant submitted that his sponsor needs the applicant’s experience at work, and that this constituted compelling circumstances. The applicant also submitted that his working with Instyle has made a big difference in his life; the applicant has special expertise, and Instyle requires his special expertise; and the Department did not understand the importance of the applicant’s role and of his work. These submissions address the merits of his claim for a waiver. By themselves they do not disclose any jurisdictional error.

2. The applicant’s submissions appear to convey more material than the applicant provided to the delegate about the applicant’s importance to Instyle. To the extent the applicant’s submissions do so, the delegate cannot be held to have made any jurisdictional error by not considering any such additional information.

Ground 1

1. Ground 1 claims the delegate misunderstood the issue before it, namely, Instyle had chosen to sponsor the applicant because of his skills and Instyle’s business needs, and the shortage of highly skilled people to carry on the work for which Instyle decided to sponsor the applicant, and that this constituted a major change in the applicant’s circumstances.

1. I have already found that the delegate incorrectly identified that the relevant change in the applicant’s circumstances was his desire to apply for a 457 visa. I have also found, however, that, when considering whether there are compelling (and compassionate) circumstances, the change in the applicant’s circumstances by reference to which the delegate considered those questions are those the applicant identified in his waiver request, namely, that he desired to apply for a 457 visa while in Australia, and that the applicant would be sponsored by Instyle. I am not satisfied the delegate misunderstood the grounds on which the applicant made the waiver request.

Ground 2

1. This ground complains the delegate was aware the applicant continued to work for Instyle, the applicant had obtained an assessment of his skills, but the Department failed to ask what would happen to Instyle if the applicant’s request would be refused, and in particular, what Instyle would do to replace the applicant’s services as a highly skilled and experienced chosen employee. The difficulty with this ground is that it identifies no ground on which the delegate could be said to have come under an obligation to make inquiries of Instyle of the consequences to it if the applicant were to be required to apply for a 457 visa outside Australia. There is nothing in the material that suggests the delegate came under any such obligation. Further, there is no evidence before me about the information Instyle would have provided to the delegate had the delegate sought information from Instyle about the consequences that would flow to it if the applicant were required to apply for a 457 visa outside Australia.

2. Ground 2, therefore, also fails.

Ground 3

1. Ground 3 appears to claim the delegate was unaware the condition could be waived. If that is the claim, that is not a proper characterisation of what the delegate believed and did. The delegate assumed condition 8503 could be waived under reg.2.05(4)(a) of the Regulations, and the delegate in terms considered whether condition 8503 should be waived.

2. Ground 3, therefore, fails.

Disposition

1. I propose to order that the application be dismissed. I also propose to reserve the question of costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  20 March 2020