Templeton v Minister for Immigration

[2016] FCCA 2727

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEMPLETON v MINISTER FOR IMMIGRATION [2016] FCCA 2727

Catchwords:
MIGRATION – Judicial review of decision refusing to waive a mandatory condition of a visa – no jurisdictional error – strong views expressed about the findings of the Tribunal – merits review, request that Minister exercise powers to consider case – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 41(2), 41(2A)

Migration Regulations 1994 (Cth), reg.2.05(4), condition 8503, schedule 8

Cases cited:

Re Drake v Minister for Immigration and Ethnic Affairs  (No. 2) (1979) 2 ALD 634

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant: LITIA TEMPLETON

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 792 of 2015

Judgment of: Judge Jones

Hearing date: 20 September 2016

Date of Last Submission: 20 September 2016

Delivered at: Melbourne

Delivered on: 20 September 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondent: Ms Steiner

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. That the application for judicial review filed on 16 April 2015 be dismissed.

2. The Applicant pay the Respondent’s costs in the fixed amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 792 of 2015

LITIA TEMPLETON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. This is an application for judicial review of a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to waive a mandatory condition of the Applicant’s visa.

2. The Applicant is a citizen of Fiji who entered Australia on 15 September 2012 on a single entry Tourist (TR 676) visa (“the visa”), which was valid until 15 December 2012. The visa was subject to condition 8503 of sch.8 to the Migration Regulations 1994 (“the Regulations”), which provides that 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. This condition is known as the ‘no further stay’ condition.

3. By way of background, on 5 December 2012, the Applicant made a request to the Department to waive condition 8503 (“the first waiver request”), in which she stated that she needed to remain in Australia to provide care and support for her Australian-citizen husband, Mr Templeton, (“husband”), as he was scheduled to have surgery. The delegate refused the first waiver request on 3 January 2013.

4. On 11 February 2015, the Applicant made a second request to the department to waive condition 8503 (“the second waiver request”), and it is the delegate’s decision refusing the second waiver request that is the subject of this judicial review application. 

5. I note that the Minister’s power to impose and/or waive conditions relevant to the grant of a visa are set out in sub-ss.41(2) and 41(2A) of the Act. For the purpose of waiving a visa condition under s.41(2A) of the Act, the relevant regulation is reg.2.05(4) of the Regulations. Relevantly reg.2.05(4)(b) of the Regulations provides that:

   (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…

6. The Applicant’s second waiver request was based on her husband’s mental health problems and a claim that he could not cope if the Applicant left Australia. It was also claimed that the husband’s physical health continued to deteriorate, that he was on a waiting list for heart surgery and that he relied on the Applicant for his care (CB 2). A statement from the Applicant’s then solicitors states that (CB 3):

   … the worsened health of Mr Templeton and increased reliance by him on Mrs Templeton for care and support in the years between the previous request and this request are of sufficient magnitude to constitute substantially different circumstances to those considered previously.

   The previous request was based solely on the desire for Mrs Templeton to remain in Australia to care for Mr Templeton after his upcoming heart surgery, whereas (as detailed below) the current request relates to ongoing physical and emotional reliance of Mr Templeton on Mrs Templeton …

7. There are references to the husband’s current prescriptions as of 9 February 2015 (CB 4) and a report from Dr Kegan Moneghetti, which they had yet to obtain and, under the heading “Compelling and Compassionate circumstances”, it states (CB 4):

   Mrs Templeton now assists Mr Templeton in almost every aspect of his life, from preparing meals and tending to the household, to managing and organising his extensive medication regimen.  Mrs Templeton assists Mr Templeton in attending his various health appointments, either by arranging taxis when the weather is poor, or by helping to travel by foot (and sometimes by wheelchair) to the nearby hospital.

8. I should note that the Templetons live in Stawell, Victoria, a country town. Another statement is provided (CB 27), dated 26 February 2015, from the then solicitors for the applicant, indicating they have not yet been able to obtain a psychological assessment, but the general practitioner, Dr David Lia, has indicated that the husband is at intermediate suicide risk and intermediate non-suicidal self-harm risk.  The statement says that, when coupled with Mr Templeton’s lack of a strong support network, this constitutes compelling and compassionate grounds to waive the no further stay condition.

9. Finally, there is correspondence dated 20 March 2015 (CB 41), where the Applicant’s then solicitors submitted that Mr Templeton’s current mental health and complete reliance on Mrs Templeton is a compelling and compassionate circumstance. There is also a statement that Mr Templeton’s mental health has significantly and severely declined since the Applicant arrived in Australia, and a reference to a psychological assessment by a psychologist Gino Carrafa, who stated, amongst other things, that the husband’s score of 49 “places him in the major depressive range”.  The statement goes on to say (CB 42):

   Mr Carrafa states in the assessment that without the support of Mrs Templeton “Mr Templeton’s physical and psychological integrity will without a doubt cause him to become further incapacitated and isolated.”

10. The Applicant also provided various documents with her second waiver request, including:

    -    a social welfare report from the Salvation Army dated 10 February 2015 by Eileen Bowen (CB 6-7);

    -    copies of various prescriptions and medical information relating to the husband (CB 8-18 and 39);

    -    a Centrelink income statement for the husband (CB 19-20);

    -    a referral form and treatment plan from the Grampians Counselling Connect regarding the husband (CB 29-31);

    -    a statement from the husband dated 23 February 2015 (CB 33), which indicates that he is very dependent on the Applicant; 

    -    a letter from Christy Anderson of Grampians Community Health dated 26 February 2015 (CB 34);

    -    letters from Christine Agnew of the Salvation Army dated 26 February 2015 and 4 March 2015 (CB 35 and 38);

    -    correspondence from Mr Gino Carrafa, psychologist, regarding the condition of the husband (CB 43-45); 

    -    a letter of support from Julie and Garry Tierney (CB 46); and

    -    a letter from a Reverend Susan Pearse of the Uniting Church dated 3 March 2015 (CB 47). 

Decision of the delegate

1. I now turn to the decision of the delegate who refused the second waiver request in a letter dated 8 April 2015 (CB 52-55). The delegate referred to the various documents and the Regulations, and stated that pursuant to reg.2.05(4)(b) of the Regulations (CB 53):

   … my consideration of the circumstances in this request will be limited to those circumstances which are substantially different from those considered previously.  That is your husband’s health has deteriorated and he now requires fulltime care. I am satisfied that these constitute substantially different circumstances from those previously considered.

2. In summary, the delegate acknowledged that the husband’s health had deteriorated, that he had a need for full-time care and that these constituted substantially different circumstances. The delegate accepted that the husband was suffering from multiple medical conditions and has become heavily reliant on the Applicant for support and care, but went on to say (CB 54):

   … policy indicates that the criteria in Reg. 2.05(4) will be satisfied in circumstances where a family member both requires care, and that the applicant is the only person who could provide that care.  I have considered the merits of this case and am not of the view that compelling reasons exist for departing from departmental policy.

3. The crux of the delegate’s decision is as follows (CB 54):

   I accept you would like to be the one caring and supporting your husband however I am not satisfied your husband is so incapacitated that he is unable to care for himself to a degree or to receive support from family and friends.  Evidence submitted suggests your husband has a child and a brother in Australia who could be of some assistance.  Furthermore, evidence provided suggests your husband is already engaged with community services and I see no reason why this support could not continue or that he could not acquire additional community services to assist with his day to day living.

4. The next paragraph refers to the husband’s mental health and its sudden decline, and says (CB 54):

   … whilst I acknowledge some temporary separation may cause you and your husband some emotional stress, it does not constitute compelling circumstances as under policy, ‘compelling circumstances’ are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia and I am not satisfied you are faced with a situation in which you have little option but to remain in Australia.

5. The delegate then goes on to say (CB 54):

   … policy indicates that deterioration of existing serious illness or medical condition would not normally be grounds for waiver.

Judicial review

1. The Applicant was assisted by a solicitor in her judicial review application, who has since withdrawn,  so she now appears on her own behalf.

2. However, her grounds of review are expressed clearly and particularised.  The Applicant, without making any critical judgment of her, was not able to enlarge on those grounds as they are, to use the colloquial term, in legal language, and not readily understandable by the Applicant herself.

3. The Applicant was clearly very distressed about the situation. I understand how difficult it must be for her to face circumstances in which, having been the carer of her husband, who is aged and disabled through physical conditions, and has, without a doubt, mental health problems, is facing circumstances where, because of a refusal by the delegate to waive the mandatory condition, she would be separated from him. I can imagine that the hurt and distress for her must be enormous, and I am very moved by her circumstances.

4. I did explain to the Applicant that unfortunately, I am not in a position to review the merits of this case, because I say, very clearly here, that if this case was before me, I would decide to waive the condition. In my view, the circumstances are compelling and compassionate, and I see no reason why the delegate could not have waived the condition. I think the condition is harsh and will be very harsh on Mr and Mrs Templeton. However, I am not permitted to engage in a merits review.  It is not often I express this view, I have to say, but today I do.  However, I have to now proceed with my very limited function of judicial review.

5. I would hope, however, that the Minister give this matter further consideration and exercise whatever powers available to him to facilitate the granting of the visa. I should point out that I find it very difficult to understand how the delegate could find the mental health problems to be as serious as they are, and yet say that the husband is not so incapacitated that he cannot assist himself. 

6. There is a reference in the delegate’s decision, to Mr Templeton having a child and a brother. I accept that the submission given by the Applicant was not sworn evidence, but apparently the husband’s brother is 64 years of age and looks after his own partner, and his son is completely estranged from him. I have no idea where the delegate obtained this information about the Applicant’s husband’s relatives. The delegate went on to say that, given the letters of support that have been included, Mr Templeton is engaged with the community. 

7. The delegate acknowledged some temporary separation may cause emotional stress. In my view that is an understatement, given the psychologist’s report. If I had the opportunity to review this, I would waive the mandatory condition immediately.

8. The Applicant was not in a position to enlarge on the grounds of application, but she referred to the circumstances that she confronts and the fact that her husband has many medication changes and that he is in and out of hospital. The Applicant is clearly linked into the community in Stawell. I am not sure if the husband is, but the Applicant certainly is. I have no doubt that the husband is very dependent on the Applicant and that she is a very loving, caring person.

9. Nevertheless, I now address the grounds for review.  The Applicant’s grounds of review are as follows:

   1. The delegate of the Respondent failed to consider claims/ evidence relevant to the decision

   Particulars

   In exercising the power under s.41(2A) of the Migration Act and reg 2.05(4) of the Migration Regulations, the delegate failed to consider the evidence/ claims regarding the applicant husband’s reliance upon her for his daily needs.

   2. The delegate of the Respondent erred in law by impermissibly fettering its discretion or asking itself the wrong question in its purported application of the Minister’s Department’s policy (“Departmental Policy”).

   Particulars

   Instead of applying s.41(2A) of the Migration Act and reg 2.05(4) of the Migration Regulations to consider whether in light of the claims and evidence compelling and compassionate circumstances had developed over which the applicant had no control that resulted in a major change to the person’s circumstance, the delegate considered whether the applicant was the only person who could provide the relevant care.

   3. The delegate of the Respondent made a decision that was legally unreasonable.

   Particulars

   The evidence and claims showed the applicant was uniquely placed to care for her husband’s needs because she was his wife. There was no evidence that another family member or person would provide equivalent care. There was evidence that the applicant would not be able to afford to return to visit her husband if no further stay was allowed. The evidence corroborated the applicant’s claims.

   4. The delegate of the Respondent failed to take into account the corroborating evidence provided by the applicant.

   Particulars

   Letter from Salvation Army dated 4 March 2015.

   5. The delegate failed to consider the evidence/ claim that the consequence of the delegate’s decision would be that the applicant would be unable to visit her husband as she could not afford the cost of travel.

10. The first ground seeks to engage this Court in impermissible merits review. 

11. I have read the delegate’s decision.  The delegate identified the relevant evidence and was satisfied and, as the Minister correctly points out in his written submissions, accepted that the husband was suffering from multiple medical conditions, had become heavily reliant on the Applicant and that she would like to be the one caring for and supporting him.

12. Ground one does not raise a jurisdictional error. It is really about the way in which the delegate went about considering the evidence, and I think I have said enough about my view on that.

13. The second ground is that the delegate erred in law by impermissibly fettering its discretion or asking itself the wrong question in its purported application of the Minister’s departmental policy.  Of course, a delegate is required to have regard to policy, but is not to subsume its decision to the policy itself. If the policy is unlawful, then applying the policy would give rise to jurisdictional error.

14. The delegate did refer to the policy and this is clear from my reference to extracts from the decision, but I am not satisfied that there was jurisdictional error in this approach. The Minister has referred to the decision of Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs  (No. 2) (1979) 2 ALD 634, in which his Honour said:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. When the policy would normally be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

15. I am not satisfied that the delegate applied the policy without regard to appropriate consideration of the Act and the Regulations. The delegate was required to have regard to policy and did so in a way that, in my view, does not give rise to jurisdictional error. I am satisfied that the approach adopted was one in which the delegate was guided by the policy, rather than allowing the policy to dictate the decision.

16. The third ground of judicial review is that the delegate made a decision that was legally unreasonable. I have to say that I have considered this ground because of my very strong expressed views about what I would have found, had I been permitted to review the merits of this case, which I am not permitted to do. However, the question of legal unreasonableness is a very strict concept. 

17. I would have to conclude that the decision that the delegate made was one that was not open to it at all. I certainly cavil with the delegate’s decision because I think that it is a decision that I would not reach, but it is certainly a decision that I could not say no one else would reach, therefore I cannot find that the decision itself was legally unreasonable. The delegate gave reasons for the decision, there is no apparent illogicality about it, and consequently, I would not find jurisdictional error on those grounds.

18. The fourth ground is that the delegate failed to take into account corroborating evidence provided by the Applicant, the evidence being the Salvation Army dated 4 March 2015. It is settled principle that a decision maker is not required to identify every bit of evidence. The delegate did refer to the letter, albeit simply identifying the letter in its decision (CB 53). In fact, as Counsel for the Minister suggests, it may well be that a letter such as this was the basis for the delegate’s finding that there was community support available for the husband. 

19. I cannot see how this ground can succeed on the basis of jurisdictional error. It is really a question of what weight the delegate gave to that letter. The delegate is not required to identify all of the evidence it relies on or the evidence it does not consider, and it seems to me that the delegate considered the letter as part of its general findings about the community support and services available to the husband.

1. The final ground is that the delegate failed to consider the evidence or claim that the consequence of the delegate’s decision would be that the Applicant would be unable to visit her husband and she could not afford the costs of travel. Again, I accept that this was a matter raised with the delegate in submissions dated 11 February 2015.  

2. The failure to consider the evidence, however, would not necessarily be dispositive to the outcome of the delegate’s decision, because the delegate’s decision was, in effect, that there were others who would be in a position to provide assistance to the husband. I agree with the Minister that in the context in which the claim was put, which was regarding the ability of the Applicant to provide care to the husband, the question of the Applicant’s ability to travel was a matter subsumed within the delegate’s overall finding that there would be others who could assist the husband: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184.

Conclusion

1. I do not find jurisdictional error on these grounds. Consequently, I have no option but to dismiss the application for review with costs.

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

Date: 25 October 2016