Tjang v Minister for Immigration
[2013] FCCA 779
•16 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TJANG v MINISTER FOR IMMIGRATION | [2013] FCCA 779 |
| Catchwords: MIGRATION – Review of decision of delegate of Minister for Immigration and Citizenship – request to waive condition on visa – 8503 No Further Stay Condition – compelling circumstances – no reviewable error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), reg.2.05 |
| Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Cheema v Minister for Immigration and Citizenship [2011] FCA 121 Cheema v Minister for Immigration and Citizenship [2010] FMCA 705 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335 Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 |
| Applicant: | SIM TIM TJANG |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 649 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 28 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an Indonesian interpreter |
| Solicitor for the Respondent: | Ms A. Carr of DLA Piper Australia |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The application filed on 2 April 2013 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 649 of 2013
| SIM TIM TJANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed under the Migration Act 1958 (Cth) (the “Migration Act”) on 2 April 2013 by Sim Tin Tjang (“Tjang”) seeking judicial review seeking relief in the form of constitutional writs against a decision of the delegate of the respondent, the Minister for Immigration, Multicultural Affairs and Citizenship (the “Minister”), who notified Tjang by letter on 5 March 2013 that he had refused the applicant’s request to waive condition 8503 that had been imposed on Tjang’s visa. The application before this Court was listed for a show cause hearing on 28 June 2013.
On 13 May 2013 the legal representatives of the Minister filed a folder containing all documents which may be relevant to the hearing. This volume of material is identified as the Court Book (“CB”) and has been marked as Exhibit “A”. Pursuant to orders made at the First Court Date directions hearing the representatives of the Minister also filed written submissions on 20 June 2013.
Tjang was granted leave at the First Court Date directions hearing to file and serve written submissions by 14 June 2013. Written submissions were prepared by a friend of Tjang’s and handed up at the show cause hearing on 28 June 2013.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the legal representatives of the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
Tjang is a male citizen of Indonesia born on 20 June 1958. He arrived in Australia on 15 March 2010 as the holder of a Visitor visa (sub-class 676) issued on 21 December 2009 (CB 3). Tjang’s Visitor visa was subject to Condition 8503, being No Further Stay, and was valid until 15 June 2010 (CB 3). After the expiration of Tjang’s visa on 15 June 2010 he remained in Australia unlawfully and did not lodge any substantive visa applications until 19 February 2013 (CB 26). On 2 December 2012 Tjang married an Australian citizen, Mieke Barnes.
On 19 February 2013 the applicant lodged a request with the Department of Immigration and Citizenship (“DIAC”) to waive the 8503 No Further Stay Condition (CB 1) on his visa. Supporting documentation was provided with this request, including:
a)Tjang’s passport (CB 2 – 3);
b)Tjang’s and Mieke Barnes’s marriage certificate (CB 4);
c)A statutory declaration of Mieke Barnes dated 16 February 2013 (CB 5 – 7);
d)A divorce order in respect of Mieke Barnes and Daup Balapadadang made on 14 July 2011 (CB 9 – 10);
e)Unidentified photographs (CB 11);
f)A letter from Dr S. Abeyewardene dated 30 May 2011 (CB 12);
g)A letter from Dr S. Abeyewardene dated 17 January 2013;
h)A handwritten letter from Dr M. Teng dated 15 February 2013; and
i)A Form 956A – Appointment or withdrawal of an authorised recipient (CB 15 – 18).
DIAC acknowledged request of Tjang’s application by letter dated 19 February 2013 (CB 19 – 21). DIAC then sent letters to Tjang and his representative on 5 March 2013 notifying Tjang that his request to waive 8503 No Further Stay Condition had been refused (CB 22 – 25).
At CB 26 – 30 appears a copy of a DIAC Minute – Submission to Delegate in respect of Tjang’s application. The Minute held that:
a)The Minister’s power under s.41(2A) of the Migration Act is discretionary. In particular, where a visa is granted with an 8503 “No Further Stay” Condition, reg. 2.05(4) of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) prescribes the circumstances that must exist to enliven the Minister’s power to waive the condition;
b)The Minister has a discretion as to whether or not to waive a condition but may only exercise that discretion if the Minister is of the opinion that the circumstances set out in reg. 2.05(4) at paragraphs (a), (b) and (c) exist; and
c)The basis upon which the Minute advised the delegate that the 8503 No Further Stay Condition should not be waived in respect of Tjang’s visa was:
i)The circumstances stated in the waiver application had arisen since the visa grant;
ii)The circumstances did result in a major change in Tjang’s circumstances;
iii)The circumstances were not outside Tjang’s control. The applicant had chosen to remain in Australia unlawfully at the time of the expiration of his visa and had chosen to enter into a relationship with an Australian citizen which resulted in their marriage; and
iv)The circumstances were not compelling and compassionate. It was accepted that Tjang may be the only person to provide care for his wife, however, the evidence did not suggest that his wife required full-time care. Further, although Tjang’s wife’s wish to remain with her husband amounted to compassionate circumstances, the fact Tjang chose to remain in Australia to apply for a Partner visa did not amount to compelling circumstances.
The Minute concluded that Tjang’s circumstances did not satisfy the requirements of reg. 2.05(4) of the Migration Regulations and, accordingly, did not waive 8503 No Further Stay Condition imposed on his visa.
Current Proceedings
The application filed in this Court on 2 April 2013 pleads two grounds of judicial review, being:
1. The Delegate failed to independently assess the situation of my wife who does not have any family members and that the care and love offered by a husband cannot be replaced and failed to understand and assess the behaviour of ex-husband and the contents of statutory declaration and attached medical report.
2. The delegate of the Minister misapplied the law as he failed to apply compelling circumstances which were documented before him and which developed since the grant of the visa.
Applicant’s Submissions
At the hearing the applicant handed up to the Court a document that he indicated had been prepared by Toufic Laba Sarkis. This document contained a page written in English with an Indonesian translation stapled to it. The document states:
Good afternoon Your Honour
I am the applicant.
I rely today on application under Migration Act filed in Court on 2 April 2013 and the Court Book filed on 13 May 2013.
I ask you Your Honour to look at the statutory declaration which appears in the Court Book (CB) ps.5-7. I also ask you to look at the medical evidence on ps.12-14. The officer of the Department, on p.29, accepted that my wife suffers from a number of medical conditions and needs my care. The Officer also says however waiver policy in relation to medical conditions and needs my care. The Officer also says however waiver policy in relation to medical conditions of close family members also required that the officer be satisfied that the family member both require care and that the applicant is the only person who can provide that care.
Your Honour, my wife stated in her declaration, page 6 point 10, that I am her husband and her carer. My wife also asked the Department to talk to her doctors that her circumstances are different. She also said that she has no one in Australia to look after her except me. She also said that it will be very damaging because she has unique circumstances which developed after I obtained my visa and came to Australia.
Your Honour, I ask you to look at the Officer’s comments on p.29 of the CB and my wife’s statutory declaration on p.5-7 of the CB, and you will see that the Department ignored the contents of the statutory declaration and failed to give me natural justice and fairness and make a decision to waive the 8503 condition.
The decision involves an unreasonable and irrational exercise of discretion. The process of reasoning of the Officer of the Department on p.29 is defective and unjust. The Officer accepted that my wife suffered medical conditions and failed to confirm the medical condition and failed to contact the doctors as requested by my wife in her statutory declaration.
I believe that there is an error of law as stated in my original application under grounds of application.
Thank you Your Honour.
The applicant, when asked if he had any oral submissions to make, indicated that he wanted to remain in Australia to be with and provide care to his wife.
Minister’s Submissions
Ground One
In respect of the first written ground pleaded by Tjang, Ms Carr, appearing for the Minister submits that contrary to what is asserted by Tjang, his wife’s circumstances were considered by the Minister’s delegate.
Ms Carr contends the delegate had before it the medical evidence proffered by Tjang’s wife. However, the delegate was unable to be satisfied from that evidence that Tjang’s wife required full time care. It was further noted that the medical evidence did not indicate Tjang’s wife was suicidal.
Ms Carr submits there was no obligation on the delegate to engage in any independent medical assessment and it was for Tjang to present any material he wished to be considered in support of his request for waiver. It was open to the delegate to find that, on the evidence presented, Tjang’s wife was not in need of full time care.
Ms Carr submits that this Ground seeks to cavil with the merits of the delegate’s decision and, therefore, does not raise an arguable case for the relief sought.
Ground Two
Ms Carr submits that Ground Two of Tjang’s Application to this Court pleads that the Minster’s delegate misapplied the law for reason that he failed to apply compelling circumstances.
Ms Carr argues that reg. 2.05(4) requires that both compassionate and compelling circumstances (see Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [21] and [24] per curiam; Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21] per O’Loughlin J; Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335 at [25] per Kenny J) must exist (see Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [16] per Flick J).
Ms Carr submits that it was open to the delegate to find that there were some compassionate circumstances, but no compelling circumstances. In reaching this conclusion:
a)The delegate found there were no compassionate circumstances for reason that Tjang’s wife did not want to be separated from her husband;
b)The delegate found that Tjang’s decision to remain in Australia for the purpose of applying for permanent residency did not constitute compelling circumstances; and
c)Although the delegate was satisfied that the applicant was the only person who could provide care for his wife, he was not satisfied that his wife required full-time care.
Ms Carr submits that, therefore, it was open to the delegate to find that the applicant’s circumstances did not meet the requirements for the waiving of 8503 No Further Stay Condition. Consequently, this ground also seeks to cavil with the delegate’s findings and, therefore, does not raise an arguable case for the relief sought.
Response to Written and Oral Submissions
In response to the document filed in Court and submissions made orally by the applicant, Ms Carr indicated that they asserted no error on the part of the delegate.
Consideration
Statutory Framework
Section 41 of the Migration Act states:
Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) 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; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
At Schedule 8 of the Migration Regulations it states in respect of Condition 8503:
8503 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.
Regulation 2.05(4) of the Migration Regulations states:
(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.
In Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 his Honour Hely J summarised the general effect of these provisions. At [1] – [3] his Honour stated:
1. On 27 January 1999 the applicant was granted a visa to travel to and enter Australia and to remain in Australia for a period of one month as a visitor. The visa was endorsed "Conditions Mig. Regs. Sched. 8 ... 8503 No Further Stay". Item 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) provides for a visa condition in the following terms:
"8503: The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia."
The source of the authority to impose that condition is s41(2)(a) of the Migration Act 1958 (Cth) ("the Migration Act") when read with reg2.05 and such of the provisions of Schedule 2 to the Regulations as are applicable to a Subclass 676 Tourist (Short Stay) visa, particularly criterion 676.6.
2. S41(2)(a) of the Migration Act provides, in effect, that the Regulations may provide that visas are subject to a condition of the type contained in Condition 8503. S46(1A) of the Act provides that an application for a visa is invalid if, since last entering Australia, the applicant has held a visa subject to a condition described in s41(2)(a) and the Minister has not waived that condition under s41(2A).
3. S41(2A) was inserted into the Migration Act with effect from 1 March 1999. S41(2A) allows the Minister, by writing, to waive a condition of the kind referred to in s41(2)(a) in prescribed circumstances. Those circumstances are as set forth in reg2.05(4), of which the most important may be summarised briefly as the development of compelling and compassionate circumstances since the visa was granted on that condition, over which the visa holder had no control, but which have resulted in a major change in that person's circumstances.
In Cheema v Minister for Immigration and Citizenship [2011] FCA 121 his Honour Flick J dealt with an application similar to the current application before this Court. His Honour stated at [10]:
10. The correct construction of at least some of the terms employed in reg 2.05(4) has also, from time to time, been considered by this court. The requirement, for example, that there be a change in personal circumstances was considered in Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570 ; 135 FCR 335. The use of the term “circumstances”, it has also been pointed out, has been employed in a number of different ways in the Regulation: Vanstone, Re; Ex parte Auva’A [2003] FCA 1506 at [8] ; 134 FCR 379 at 382 per Dowsett J. And the phrase “compelling and compassionate” received some attention in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 where O’Loughlin J said:
[21] The circumstances that must fit the description of “compelling and compassionate” must have developed since the grant of the visa … There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.
In Terera, above, Kenny J referred to these observations of O’Loughlin J and continued as follows:
[25] … In a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of reg 2.05(4)(a). When a visa-holder requests the Minister, or Ministerial delegate, to waive a “no further stay” condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.
At [11] – [12] in Cheema (supra) his Honour continues:
11. It is to be further noted that the source of the discretionary power to “waive a condition” is s 41(2A) and that the circumstances prescribed in reg 2.05(4) are but a specification of those circumstances which are a condition precedent to the exercise of the discretion. Unless the conditions precedent are satisfied, no occasion arises for the exercise of any discretion.
12. Of present relevance is the correct construction and application of those conditions precedent; no occasion arises for any consideration being given to the manner in which the discretion conferred by s 41(2A) is to be exercised. It is also unnecessary for present purposes to trace the path of any legislative amendments or variations in the terminology of Condition 8503 over the years. The phrase of present relevance, “compelling and compassionate circumstances”, would appear to have been at least common to Condition 8503 over a number of years.
In Cheema (supra) Flick J noted the grounds in the application before the Federal Magistrates Court (as the Court then was) (Cheema v Minister for Immigration and Citizenship [2010] FMCA 705) were:
1. The delegate failed to accept the compelling circumstance.
2. The delegate failed to consider the information provided.
Flick J went on to note at [15] that the grounds pleaded before the Federal Court sought to re-agitate substantially the same concerns.
In these proceedings the grounds contained within Tjang’s application are noted at [10] above. Ground 1 of the Application before this Court is, in effect, the same ground pleaded as Ground 2 of the grounds in Cheema (supra). Further, Ground 2 of the Application before this Court is also, in effect, the same ground pleaded as Ground 1 of the grounds in Cheema (supra).
Flick J addressed the second ground of appeal (in effect, Ground 1 in these proceedings) in Cheema (supra) at [18] – [21]. His Honour stated:
18. The second Ground of Appeal presumably is an attempt to invoke reg 2.05(4)(a)(ii). Unlike the former Ground of Appeal, it does assert error on the part of the Federal Magistrate — but it fails to identify the “MAJOR CHANGES of circumstances” to which reference is made. So expressed, this is a ground that was not advanced for consideration before the Federal Magistrate. No error can normally be exposed by not considering an argument not advanced. It was during the course of submissions, however, that the Appellant identified the “MAJOR CHANGES of circumstances” as again being his relationship with his godson. So explained, this was but a variant of the former Ground of Appeal. It is an argument without substance. The recommendation to the delegate thus assumed the form of a series of questions and a response to those questions. One of those questions was expressed as follows:
Did the circumstances result in a major change to the client’s circumstances?
The response provided stated in part:
Mr Cheema’s claim that his Godson needs his ongoing support and guidance does not constitute a major change to his circumstances.
The emphasis given to “major change” and the underlining appears in the recommendation itself. The “change to his circumstances” was thus a matter taken into account and not “ignored”. The fact that the present Appellant undoubtedly desired a different factual outcome does not equate to those circumstances being “ignored”.
19. In rejecting the Grounds of Appeal, and in concluding that there is no discernible error in the decision of the delegate or (more relevantly) the decision of the Federal Magistrate, the following observations of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 at [17] ; 170 CLR 1 at 35–36 may be recalled:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
See also: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] ; 228 CLR 152 at 160; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [19] ; 240 CLR 611 at 619 per Gummow ACJ and Kiefel J (diss); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23] ; 273 ALR 122 at 128 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. “Judicial review”, it has been said, “is not an invitation to judges to decide what they would consider fair or reasonable …”: cfvNeat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35 at [20] ; 216 CLR 277 at 288 per Gleeson CJ.
20. It should, perhaps in any event, be noted that there is no self-evident “administrative injustice or error” in the delegate’s decision.
21. Unlike the circumstances (for example) in Terera where it was concluded that jurisdictional error was established by reason of a failure to address the question arising under reg 2.05(4)(a), no such error or other jurisdictional error has been established in the present proceeding.
Following the course adopted by Flick J, I note that in the Submission to Delegate at CB 29 the following is stated by the DIAC Officer:
Mr [Tjang] claims that his wife, Ms Barnes suffers from a number of medical conditions and needs his care. However, waiver policy in relation to medical conditions of close family member also requires that the officer be satisfied that the family member both requires care, and that the applicant is the only person who can provide that care. Policy further provides that deterioration of an existing serious illness or medical condition would not normally be grounds for waiver. Whilst I accept that Mr [Tjang] may be the only person available to provide care to his wife; the medical evidence provided does not states that Ms Barnes requires full time ongoing care. Medical evidence provided does not indicate Ms Barnes is suicidal.
It is clear the officer preparing the Submission to Delegate had regard to the supporting documentation provided by Tjang, including the medical reports. The officer has also had regard to the relationship between Tjang and his wife, including the care offered by him, but was not satisfied on the evidence that Ms Barnes required full time ongoing care.
At CB 9 in Ms Barnes’s Statutory Declaration at [3] – [6] the following appears:
3. I was previously married to Daud Balapadadang on 3 June 1995.
4. My ex-husband and I were divorced on 14 July 2011 but have lived under the same roof from December 2009 until 9 April 2011 but were separated and did not talk to each other. I felt extremely damaged by his behaviour until I went to the Court and obtained my divorce.
5. As a result of my divorce I suffered depression and as a result of crying suffered problems in my eyes.
6. My ex-husband brought a lot of sadness to my heart and my circumstances changes after I obtained my divorce. I became committed to my husband [Tjang] who comforted me and supported me during the time I needed support.
Other than the Divorce Order (CB 9 – 10), this is the only reference in Tjang’s supporting evidence to Ms Barnes’s ex-husband. In the Submission to Delegate Ms Barnes’s Statutory Declaration was quoted and referred to by the officer at CB 27. The officer further refers to statements made by Ms Barnes about her ex-husband and his behaviour towards her, her mental health and the current relationship with and care provided by Tjang.
It is clear that the delegate considered Ms Barnes’s circumstances. There is no discernible error apparent in the delegate’s decision. This Ground further seeks to cavil with the merits of the decision and I am guided by the authorities cited by his Honour Flick J in Cheema (supra) at [19]. Consequently, this ground cannot be sustained and should be dismissed.
Ground 2 of the Application before this Court alleges that the delegate failed to apply “compelling circumstances” that were documented and had developed since the grant of the visa. In Cheema (supra) Flick J considered the first Ground of Appeal before him at [16] – [17] where his Honour stated:
16. Left to one side is the fact that the first Ground of Appeal fails to identify any error as made by the Federal Magistrate. It merely alleges error on the part of the delegate. Concurrence is nevertheless expressed with the conclusion of the Federal Magistrate that no legal error is discernible in the manner in which the delegate approached his assessment as to whether there were “compelling … circumstances”. The delegate accepted a recommendation that the circumstances were not “compelling” in circumstances where the godson resided with his own family and had their ongoing support. Moreover, the recommendation further noted that the Appellant “has not provided any evidence to show that [the godson’s] health and well being will be jeopardised if he were required to depart Australia”. The recommendation accepted that there were “some compassionate circumstances” — but the Regulation requires that there be “compelling and compassionate circumstances”. Satisfying one requirement — but not another — is not sufficient. The findings of the delegate do not expose error.
17. There is, in any event, a further difficulty in the path of the present Appellant. Regulation 2.05(4)(a)(i) requires the circumstances relied upon to be also circumstances “over which the person has no control”. That latter requirement was also resolved adversely to the present Appellant by the delegate. The recommendation to the delegate, and accepted by the delegate, stated:
Mr Cheema made a conscious decision to remain in Australia beyond his visa validity period, apply for Protection and become a Godfather to his friend’s son. This decision was completely within Mr Cheema’s control.
There never has been a challenge to that conclusion.
In the Submission to Delegate at CB 28 – 29 the following appears:
b) Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
Yes. [Tjang’s] marriage to Mieke Barnes occurred after his visa grant on 21 December 2009.
c) Did the circumstances result in a major change to the client’s circumstances?
Yes. [Tjang’s] marriage to Ms Mieke Barnes can be considered as a major change to his circumstances.
d) Were the circumstances outside the client’s control?
No. [Tjang] made a voluntary decision when he decided to remain in Australia unlawfully since the expiry of his Visitor visa on 15 June 2010 and enter into a relationship with an Australian citizen which resulted in their marriage on 2 December 2012. These decisions were well within [Tjang’s] control.
e) Are these circumstances both compelling and compassionate?
No. [Tjang] claims he would like to remain in Australia and apply for a Partner visa because his Australian citizen wife is willing to sponsor him. According to relevant 8503 Policy provisions, marriage to an Australian Resident or Citizen would not in itself constitute such a change in circumstances to be beyond the visa holder’s control or to constitute compassionate or compelling circumstances.
…
Furthermore, 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. [Tjang’s] decision to remain in Australia for the purpose of applying for permanent residence does not constitute circumstances of a compelling nature. Some compassionate circumstances exist as Ms Barnes does not wish to be separated from [Tjang] and would like him to remain in Australia and lodge an onshore Partner visa application.
I am satisfied that the delegate has had regard to the criteria set out in the relevant criteria set out in the Migration Regulations and there was no discernible error in the application of those. I am further guided by [17] of Flick J’s reasons in Cheema (supra). The delegate considered Tjang’s circumstances, but was not satisfied that they were of a nature “over which there was no control”. Tjang made a voluntary decision to remain in Australia unlawfully after his visa had expired on 15 June 2010 and enter into a relationship with, and ultimately marry, Ms Barnes. The delegate accepted that some circumstances of a “compassionate” nature existed, but as held by Flick J in Cheema “satisfying one requirement – but not another – is not sufficient”. Accordingly, Ground 2 cannot be sustained and should be dismissed.
I now turn to the written document provided by Tjang at the hearing and reproduced at [11] above. I agree with Ms Carr’s submissions that the document asserts no jurisdictional error by the delegate. To the extent that there is an allegation that the delegate failed to have regard to Ms Barnes’s Statutory Declaration, this has been addressed above at [32].
The document also alleges that there was an unreasonable and irrational exercise of discretion by the delegate. This is said to have occurred on the basis that the DIAC officer who interviewed Ms Barnes accepted that she suffered medical conditions, but failed to confirm these conditions or contact the doctors as she had requested for the officer to do.
Their Honours Gummow and Hayne JJ stated, in respect of a decision of the Refugee Review Tribunal, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
… Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
In Abebe v Commonwealth of Australia (1999) 197 CLR 510 their Honours Gummow and Hayne JJ stated, in respect of a decision of the Refugee Review Tribunal, at [187]:
… Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.
I am satisfied that there was no duty on the delegate or the DIAC officer to make inquiries of Ms Barnes’s doctor. Further, on a fair reading of the three medical reports submitted with the waiver request (CB 12, 13 and 14) one report refers to Ms Barnes’s granddaughter and makes no mention of Tjang, the second states that Tjang and his wife have a caring relationship and it would be beneficial for Tjang to remain in Australia while his immigration application is being processed and the third states that Ms Barnes needs her husband to accompany and look after her most of the time.
In the delegate’s decision (CB 24) under “Reasons” it states at [3] and [4]:
While I accept that your wife suffers from a number of medical conditions and may be in need of your care; waiver policy in relation to medical conditions of close family member also requires that the officer be satisfied that the family member both requires care, and that the applicant is the only person who can provide that care. Policy further provides that deterioration of an existing serious illness or medical condition would not normally be grounds for waiver. Based on the information you have provided, whilst I accept that you may be the only person available to care for Ms Barnes; she is not required to have full time care.
Furthermore, I acknowledge that you are very dedicated to Ms Barnes and that you may be experiencing emotional stress at the thought of being separated. However, it can be expected that you may experience these emotional symptoms as a consequence of a separation.
There was no duty on the delegate or DIAC officer or the delegate to make inquiries in respect of Ms Barnes’s medical conditions. The delegate had regard to the medical evidence before him and made a decision on that basis. Accordingly, there is no discernable error in the approach taken by the delegate and this submission cannot be sustained and should be dismissed.
Conclusion
I am satisfied that none of the grounds pleaded or submissions made by the applicant can be sustained. Accordingly, the Application should be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 July 2013
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