Tin v Minister for Home Affairs
[2023] FedCFamC2G 1014
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tin v Minister for Home Affairs [2023] FedCFamC2G 1014
File number(s): SYG 2 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 26 October 2023 Catchwords: MIGRATION – Application for review of delegate’s decision seeking waiver of condition 8503 – merits review Legislation: Migration Act 1958 (Cth) ss 41, 476, 500
Migration Regulations 1994 (Cth) reg 2.05
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 26 October 2023 Place: Sydney Applicant: The applicant appeared in person Solicitor for the Respondent: Ms A Zinn of Mills Oakley Lawyers ORDERS
SYG 2 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TJANG SIM TIN
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely on his written submissions in the form emailed to the Court Registry on 25 October 2023.
2.The application filed on 2 January 2019, as amended, is dismissed.
3.The applicant must pay the respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $5,100.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 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.
THE COURT NOTES THAT:
A.The written submissions referred to in Order 1 were tendered and marked Exhibit “1A”.
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 2 January 2019, the applicant seeks review of a decision of a delegate of the Minister (delegate) which refused to waive condition 8503, which attaches to the applicant’s visitor visa, and prevents him from applying for a substantive visa.
The Court has jurisdiction in relation to the delegate’s decision because it is a feature of a waiver decision that there is no right to approach a Tribunal for review. The delegate’s decision is not a “primary decision” as defined in s 476(4) as it is not reviewable under Parts 5 or 7 of the Migration Act 1958 (Cth) (Act) Act nor s 500 of the Act. Accordingly, the delegate’s decision is a migration decision for the purposes of s 476 of the Act.
BACKGROUND
The applicant is male citizen of Indonesia who arrived in Australia on 15 March 2010 on a Visitor (Subclass 676) visa (visa), valid from 21 December 2009 to 15 June 2010. The applicant has remained in Australia unlawfully since 15 June 2010 (CB 22).
Condition 8503, which was attached to the visa, required that the visa holder would not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while they remain in Australia.
On 19 February 2013, the applicant, with the assistance of his migration agent (CB 16 to 17) applied for a waiver of condition 8503 to allow him to apply for a Partner visa on the basis of his marriage to an Australian citizen on 2 December 2012 (CB 1 to 13). The applicant’s wife provided a statement to the Department which claimed that she suffered from various health issues and was dependent on the applicant for physical and emotional support. The application was also supported by various identity and health documents relating to the applicant and his wife (CB 1 to 13).
On 5 March 2013, a delegate of the Minister refused the application to waive condition 8503 (CB 27 to 30). The delegate accepted that the applicant’s wife suffered from various medical conditions but was not satisfied that she required full-time care (CB 29). The delegate was also not satisfied that compelling and compassionate circumstances had arisen that resulted in a major change to his circumstances, and over which he had no control, since his visa was granted (CB 29).
On 14 March 2018, the applicant lodged a second request to waive condition 8503 on the basis of an unspecified “serious illness” for which he could not receive treatment in his home country (CB 31 to 32). The application was supported by a Form 1507 (Evidence of intended medical treatment form) and a letter from a doctor dated 24 November 2017 (November letter) which stated that the applicant was participating in a vaccine clinical trial to prevent “Clostridium Dificile infection”, being a gastrointestinal infection (CB 33 to 35).
On 27 March 2018, the Department wrote to the doctor and requested clarification as to whether the applicant’s participation in the trial detailed in the November letter was voluntary or whether it was the “only available treatment” for a medical condition (CB 36). On 30 March 2018, the doctor confirmed that the applicant’s participation in the trial was voluntary and that there was no available vaccine for the condition (CB 37).
On 4 April 2018, a delegate of the Minister refused the applicant’s second application to waive condition 8503 (CB 42 to 46). The delegate accepted that the applicant would prefer to remain in Australia to participate in the clinical study but found that the applicant’s participation was voluntary and therefore did not find the circumstances sufficiently forceful to waive the condition (CB 46).
On 9 August 2019, the applicant sought judicial review of the delegate's decision. The Court remitted the matter to the delegate for reconsideration on the basis of an error conceded by the Minister, being that the delegate had denied the applicant procedural fairness by failing to put adverse information to him for comment. That information was from the doctor about the applicant’s participation in the clinical trial being voluntary (CB 47).
On 15 November 2018, the Department wrote to the applicant informing him that his request for a waiver of the 8503 condition was being reconsidered and invited him to provide “a list of all the circumstances to be considered including any additional evidence or new circumstances that have developed” (CB 49 to 51).
On 10 December 2018, the Department received a one-page response from the applicant which stated that he had an unspecified “serious infection” and was unable to received adequate treatment in Indonesia because of “non availability of treatment” and because “my country does not have the technology” (CB 52). No supporting evidence of these matters provided.
The delegate’s decision
On 21 December 2018, the delegate refused the application to waive condition 8503 as the delegate because they were not satisfied that the applicant met reg 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) (CB 60 to 66).
The delegate noted the applicant had previously requested a condition 8503 waiver pursuant to reg 2.05(4)(b) of the Regulations. The delegate said that that its consideration of the circumstances in the present request would be limited to those circumstances which were substantially different from those considered previously, being the applicant's statement that after his arrival in Australia he suffered a serious illness, and that he could not receive medical treatment in his country (CB 64).
The delegate considered the November letter (which was, at that point in time, already more than 12 months old). The delegate found that the applicant’s participation in the voluntary clinical trial was expected to be completed in seven months from the date of his first vaccination on 20 November 2017. By reference to the date of the November letter, and based on the information provided, the delegate found it reasonable to conclude that the applicant had completed the trial and found that the medical evidence did not indicate that the applicant was presently suffering from a serious infection as claimed (CB 65).
The delegate acknowledged that the medical facilities available in Indonesia differed from those available in Australia but noted the earlier findings that the applicant was no longer involved in the trial, and there was no information which suggested he was suffering from a serious infection which required treatment which cannot be obtained outside of Australia (CB 65).
The delegate was not satisfied that the applicant's circumstances were sufficiently forceful to waive condition 8503 and was not satisfied the circumstances presented were compassionate and compelling. In considering all the information provided, the delegate was not satisfied the circumstances were ones that met all the criteria set out in the Regulations and refused to waive condition 8503 under s 41(2A) of the Act (CB 65).
APPLICATION TO THIS COURT
The applicant has been unrepresented since the commencement of these proceedings. On 4 February 2019, a Registrar of this Court made orders by consent which provided, inter alia, for the applicant to file and serve any amended application and evidence by 15 April 2019. The applicant availed himself of the grant of leave in respect of an amended application which was filed on 15 April 2019, being the last day on which to do so.
The matter was initially to be listed for hearing before the Judge to whom it was initially docketed (first primary Judge) on a date to be advised to the parties administratively. The proceedings were later placed in the central migration docket where they remained until when, on 31 March 2023, they were docketed to me. On the same date, I made orders listing the matter for hearing before me today and a timetable for the preparation of the matter for hearing including an additional grant of leave to the applicant to file and serve any further amended application on or by 21 September 2023. None has been forthcoming.
The applicant and the Minister were each ordered to file written submissions 14 and 7 days before today’s hearing respectively. The Minister’s submissions were filed in time. On 25 October 2023, being the day before the hearing, the applicant sent to the Registry by email two photographs of typewritten submissions totalling eight paragraphs. There being no objection from the Minister, I granted leave to the applicant to rely on those written submissions which were tendered, having not been filed with the Court, and marked as Exhibit “1A”.
The Affidavit made by the applicant in support of the originating application contained nothing in its body, and while purporting to annex the relevant decision of the delegate, did not do so. Accordingly, regard has not been had to it. A copy of that decision is in any event in the Court Book which was received into evidence and marked Exhibit “1R”. Two Affidavits were read for the Minister, each of which was deposed by Sophie Caroline Roberts and made on 23 October 2023. They are:
(a)an Affidavit of service; and
(b)an Affidavit annexing an ICSE screenshot which demonstrates that condition 8503 attached to the applicant’s visitor visa.
This morning, the applicant has appeared before me, unrepresented but with the assistance of an interpreter in the Indonesian language. The Minister was represented by a solicitor.
Grounds of review
The grounds of the Amended Application are as follows (errors in original):
1.The Delegate of the Minister failed to accept the major change to my circumstances
2.I continue to rely on the grounds of my application under the Migration Act and the No further stay condition 8503 request was not treated according to the law because I have compelling circumstances where were ignored by the Delegate of the Minister. The reason for not requesting 8503to e waived are genuine and it is my wish to lodge an application under medical treatment visa because the treatment I receive in Australia is not available in Indonesia.
3.The Delegate of the Minister misunderstood that my circumstances are forceful and beyond my control. I am now over 50 years of age and having spent a long time in Australis it will not be possible for me to return to Indonesia in my current circumstances.
4.My request to have No further stay condition waived is genuine and I ask that the honourable Court can see that the decision of the delegate was affected by error of law.
and the grounds of the originating application are that (errors in original):
1.The Delegate misinterpreted the regulation and circumstances and the major change to my circumstances was ignored.
2.The treatment is not available in Indonesia and as I stated before my circumstances are now different than when I entered Australia. Therefore the Delegate misunderstood my claim and misapplied the law and I am hoping that the honourable Court can see that the decision of the Delegate is affected by error of law.
Section 41(2A) of the 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 Act. Section 41(2)(a) authorises the Regulations to 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 he or she remains in Australia. In the instant case, that is condition 8503.
At the time the applicant was granted a Visitor (Subclass 676) visa on 21 December 2009, 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 reg 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.
Each of the grounds was interpreted to the applicant in turn and he was given a chance to address them.
Grounds of the Amended Application
Ground 1
Ground 1 of the Amended Application alleges that the delegate failed to accept the major changes to the applicant’s circumstances. When asked to speak to this ground, the applicant said, “I don’t understand this.” I sought to clarify what the applicant was failing to understand. He said that “It is a major change. I don’t understand, but it is in ground 3.” The Court sought to understand whether by saying that the delegate failed to accept the major changes to the applicant’s circumstances, the applicant was in essence unhappy with the delegate’s conclusion. The applicant replied, “Maybe.”
Aside from the fact that this ground appears to seek merits review (concerned as it is with the applicant’s disagreement with the delegate’s decision) I agree with the submission of the Minister that it also fails to understand the basis of that decision. Ground one makes a bare assertion that the delegate “failed to accept the major change to my circumstances”. That statement misunderstands the basis of the delegate’s decision.
Relevantly, the delegate accepted that the applicant’s claims of a “serious illness” for which he could not receive medical treatment in his home country were substantially different from his earlier claims which related to his wife’s various health issues, pursuant to reg 2.05(4)(b). However, the delegate did not accept that these circumstances (namely, an alleged serious illness) was compelling and compassionate as required by reg 2.05(4)(a) (CB 65).
It is true to say that by reason of the delegate having not been satisfied that there were not compelling and compassionate circumstances which had developed, it was not necessary for the delegate to go on to consider the subsequent aspects of that criterion that is set out in sub-regulation 2.05(4)(a)(i) and (ii).
There is no demonstrated error by ground 1.
Ground 2
Ground 2 of the amended application commences by saying that the applicant continues to rely on the grounds of his “Application under Migration Act”. I sought to clarify with the applicant whether, by this, he was referring to his application for waiver of condition 8503 (in the sense that he did not resile from the bases advanced) or whether he was intending to say that the grounds in the amended application were additional to the grounds in the originating application. The applicant said he did not know, despite the fact that it is the applicant who should uniquely be in a position to answer that question.
Out of an abundance of caution, and in fairness to the applicant, I have taken the grounds in the amended application as being additional to, and not replacing, the grounds in the originating application. I asked the solicitor for the Minister to address the grounds in the originating application in oral submissions.
Having made a decision to consider both of the applications and therefore interpreted the first sentence of ground 2, the balance of the ground alleges that the delegate ignored the applicant’s compelling circumstances and goes on to assert the genuineness of the basis upon which the applicant wishes to apply for a medical treatment visa in the event that condition 8503 is waived. When asked to speak to this ground, the applicant said that “he just needed assistance and understanding from the Australian Government”. When I sought to explore with the applicant the ways in which he was alleging that his circumstances were ignored by a delegate of the Minister, the applicant responded, “Because of the medical treatment”.
Again, seeking to clarify the ground, I asked the applicant whether what he was really saying was that his circumstances were not accepted rather than that they were ignored, the applicant said, “Maybe”. In respect of ground 2 of the amended application, I agree with the Minister’s submissions. It is not apparent that any compelling circumstances were ignored.
The applicant also states that his reason for requesting a waiver is genuine and that he wishes to lodge an application for a Medical Treatment visa as the treatment he receives in Australia is not available in Indonesia. With respect, this contention is not a proper ground of judicial review, fails to grapple with the delegate’s findings in any meaningful way, and instead invites the Court to engage in impermissible merits review.
Ground 2 of the amended application fails to establish any error.
Ground 3
The third ground of the review in the amended application states (errors in original):
The Delegate of the Minister misunderstood that my circumstances are forceful and beyond my control. I am now over 50 years of age and having spent a long time in Australis it will not be possible for me to return to Indonesia in my current circumstances.
It will be recalled that in response to ground 1 of the amended application the applicant made submissions to the effect that the jurisdictional error he alleges is solely contained in ground 3. When the ground was interpreted to him, the applicant said that he agrees with the content of paragraph 3. I apprehend from this, that he did not understand that he was in fact advancing the ground himself, but that in any event, he was seeking to urge upon the Court the truth and veracity of the circumstances which he says warrant condition 8503 being waived. This is despite the fact that I had explained to the applicant at the outset of the hearing that the Court was not examining whether the condition should be waived and could not make a decision to allow the applicant to stay in Australia, to grant him a visa or otherwise, and that the Court was only examining the decision of the delegate for legal error.
In submissions in relation to ground 3 the applicant says that if he returns to Indonesia, there is nothing much he can do. He said:
I am still able to survive here. I’m able to assist others and still able to earn some money to survive. I also go to OzHarvest to collect food and drinks.
When the applicant says by this ground that the delegate misunderstood that his circumstances were forceful, he seems to be contending that his circumstances are compelling. The applicant also says that the circumstances were beyond his control. The applicant appears to pick up the language of the statute being reg 2.05(4)(a), but he otherwise appears to misapprehend that all of those factors needed to be met. It is clear from the sub-regulation that, in order for the delegate to be satisfied that the waiver should be granted, they must be satisfied that the circumstances which have developed since the grant of the visa are compelling and compassionate and, if so satisfied, then go on to consider the requirements of sub-regulation (a)(i) and (ii).
In any event, the applicant has failed to establish before me how it is that his circumstances were misunderstood by the delegate, nor how any such misunderstanding gives rise to an error. It is clear that the applicant considers there to be some legal error alleged by ground 3, but a fair reading of it really supports the inference that the applicant is simply dissatisfied with the fact that the condition was not waived and that his circumstances as claimed were not accepted.
Relevantly, the delegate acknowledged that the medical facilities available in Indonesia differed from those available in Australia but noted the earlier findings that the applicant was no longer involved in the trial and there was no information which suggested he was suffering from a serious infection which required treatment which could not be obtained outside of Australia (CB 65). These findings were reasonably open to the delegate to make on the evidence before it. Emphatic disagreement with the delegate’s reasoning or findings does not demonstrate any unreasonableness, irrationality, or illogicality.
It is also significant that the delegate expressly afforded the applicant the opportunity to provide more information in support of his waiver request by letter dated 15 November 2018 (CB 49 to 51). Relevantly, the letter stated that “It is essential that you provide a list of all the circumstances to be considered including any additional evidence or new circumstances that have developed” (CB 49). In response to that invitation, the applicant provided a brief one-page submission (CB 52) which was not accompanied by any additional evidence. In those circumstances, the delegate’s findings were unsurprising.
The applicant has not established that there is any jurisdictional error in respect of the matters alleged by ground 3 and therefore, it is not made out.
Ground 4
The fourth ground essentially implores the Court to grant the applicant the relief sought. In a similar vein, the written submissions provided on the eve of the hearing urge the Court to grant the relief and generally allege that the delegate failed to perform their task and to address the applicant’s circumstances. Yet, the written submissions made by him and which form Exhibit “1A” use that exact expression by saying (emphasis added):
The issue now is that the delegate did not do what was required and failed to accept that my circumstances were compelling, compassionate or beyond my control resulting in the major change to my circumstances, were different from those previously considered.
To the extent that the applicant’s written submission (at [6]) also says the medical evidence is of fundamental importance to the exercise of the delegate’s function, I agree with submissions that were made for the Minister that the medical evidence did not support the suggestion that the applicant had an ongoing need for medical treatment and that the applicant has failed to explain how it is the delegate has otherwise erred in its treatment of the medical evidence. There is nothing to suggest that the delegate misunderstood the content of that medical evidence, nor that it failed to take into account, as was conceded in the previous judicial review proceedings, any response from the applicant in relation to adverse material which, unlike previously, on this occasion was in fact put to the applicant and the applicant took the opportunity to comment upon that information.
The applicant’s response thereto can be found at CB 52. While it is dated 3 December 2018, a stamp on the top right-hand corner indicates that it was received by Home Affairs Queensland on 10 December 2018. The delegate, at CB 65.2, specifically acknowledged receipt of that information, took that information into account in reaching its decision accordingly to the extent that the written submissions made in support of the applications do not take the matter any further in terms of establishing an error.
Grounds in the originating application
Turning then to the grounds in the originating application which, again by reference to ground 2 in the amended application, are considered as remaining on foot.
Ground 1
By ground 1 of the original application, the applicant said:
The delegate misinterpreted the regulation and the circumstances and the major change to my circumstance was ignored.
I agree with the submission made by the solicitor for the Minister today that, in essence, this ground is a repetition of matters which were alleged by ground 2 in the amended application. To that extent, I repeat my earlier findings in relation to the alleged major change in circumstances and to the allegation that the delegate ignored certain matters. When asked to make submissions in respect of this ground, the applicant said that it was not considered.
Again, I sought to explore with the applicant whether or not he was trying to say that the claims were not accepted. The applicant again seemed to resist that proposition, although I have already addressed the fact that the written submissions do appear to have that meaning. Overall, the applicant failed to address the manner in which the delegate allegedly misinterpreted the regulation and nor is any such misinterpretation apparent from a plain reading of the reasons for the delegate’s decision. Accordingly, ground 1 of the originating application is not made out.
Ground 2
The final ground, being ground 2 of the originating application, asserts that certain medical treatment is not available in Indonesia and therefore the delegate misunderstood the applicant’s claims. When asked to speak to this ground, the applicant said he had no submissions to make. In essence, I take the applicant to be saying that, had the delegate understood the merits of his case, the waiver would be granted. Ergo, the applicant says that by refusing to waive condition 8503, the delegate must be taken to have not understood it. While this may seem logical from the applicant’s perspective, it does, as submitted for the Minister, go solely to the merits of why it is he says condition 8503 should be waived. It does not establish any error on the part of the delegate.
The delegate refused the waiver for the reasons that it gave which I find were open to it. There is no error as alleged by ground 2 of the originating application either. I should note that when asked if he had any submissions to make in reply, the applicant said he did not. For the forgoing reasons, I am not satisfied that the decision of the delegate is affected by jurisdictional error by reason of the matters alleged in either of the applications. Accordingly, the application as amended is dismissed.
COSTS
Consequent upon my dismissal of the matter, the solicitor for the Minister makes an application that the applicant pay the Minister’s costs fixed in the sum of $5,100. When asked to speak to the issue of whether costs should follow the event and, if so, in what amount, the applicant asked if it was possible for him to “pay it off”. I explained to the applicant that he would receive correspondence from the solicitors for the Minister which will give him contact details of to whom at the Department that inquiry could be made. When asked if he wished to say anything else in respect of the question of whether the order should be made or, if so, in what amount, the applicant said he had nothing to say.
I note that the scale amount as at the time that the application was filed with this Court was $7,467. The scale now at present is $8,371.30. Accordingly, the amount sought by the Minister is significantly less than that. I am satisfied that in this matter costs should follow the event. I am also satisfied having regard to the nature and complexity of the matter and the fact that the matter has proceeded to a final hearing that the amount sought, namely $5,100, is reasonable in all the facts and circumstances of this case.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 8 November 2023
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