Tjeng v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 399
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tjeng v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 399
File number(s): BRG 99 of 2023 Judgment of: JUDGE EGAN Date of judgment: 1 May 2024 Catchwords: MIGRATION LAW – whether a condition prohibiting the making of an on-shore visa application should be waived on compelling and compassionate grounds – whether the applicant entered into a carer situation in circumstances where there was no evidence before the delegate as to the state of health of the person being cared for – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958, s 41
Migration Regulations 1994 (Cth), r. 2.05
Cases cited: CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 11 April 2024 Date of hearing: 11 April 2024 Place: Brisbane Counsel for the Applicant Mr. J. Wang Solicitor for the Applicant Mr. T. Stolar, Stolar Law Counsel for the First Respondent Mr. M. Maynard Solicitor for the First Respondent Ms. A. Satyendra, Minter Ellison Second Respondent: Submitting appearance, save as to costs. ORDERS
BRG 99 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LIE IN TJENG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 MAY 2024
IT IS ORDERED THAT:
1.The Application for Leave to Extend Time in respect of the filing of the Application for Review filed on 3 March 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $9,371.00.
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).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The Applicant is a citizen of the Republic of Indonesia who arrived in Australia on a Visitor Visa on 29 January 2009. [1]
[1] Exhibit 1 – Court Book (CB) p 20.
A condition which attached to the grant of the Visitor Visa issued to the applicant was Condition 8503 to Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) which provided that:
8503
“The holder will not, after entering Australia, be entitled to a grant of a substantive visa, other than a protection visa, while the holder remains in Australia.”Condition 8503 was a condition capable of waiver pursuant to the provisions of s. 41(2A) of the Migration Act 1958 (Cth) (the Act), which provided as follows:
41
(1) …(2) …
(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).
Regulation 2.05(4) of the Regulations made provision for the waiver of a condition to a visa as follows:
2.05
(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;
An application for a Partner Residence Visa (Subclass 820/801) was made to the Department on behalf of the applicant by a migration agent on or about 30 August 2022. A response was received to the effect that the application was invalid because the applicant had overstayed her Visitor Visa, and she was therefore unable to apply for a substantive visa because of the provisions of Condition 8503. [2]
[2] CB 10.
On 30 November 2022, a written submission was made to the Minister on behalf of the applicant by a migration agent seeking waiver of the “no further stay” condition set out in Condition 8503. That submission relevantly recorded that:
(a) the applicant was married to her husband in Australia on 19 February 2011;
(b)the applicant had remained in Australia as an unlawful entrant from in or about April 2009 until in or about June 2022 when a bridging visa was obtained for the purpose of the question of the waiver of Condition 8503 being determined.
(c)the applicant’s husband’s “medical conditions are not getting any better and he has no control over his diseases”.
When dealing with the question as to whether there were any compelling and compassionate circumstances which had developed since the grant to the applicant of the Visitor Visa, on 8 December 2022 the delegate found as follows: [3]
[3] CB 42-43.
The circumstances must be compelling and compassionate
Compassionate circumstances (which are also not defined in the legislation and must be given their ordinary meaning) involve the concept of compassion which is a feeling of sorrow or pity for the sufferings or misfortune of others, or sympathy. Compassionate circumstances give rise to these feelings.
The term compelling is not defined in the migration legislation. It must be given its ordinary meaning. Compelling means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.
It is accepted that the client would like to extend their stay and continue receive the required care and support to her spouse. I have considered the circumstances presented, including the documents provided with this request. However, I find that the client's circumstances do not affect their ability to depart Australia. It is acknowledged that the client’s spouse has health and mobility issues and that he would like to client to be able to stay and continue to care for him. I consider this to be compassionate circumstances. However I must also consider if the client has compelling circumstances for a waiver. The client has not presented sufficient evidence of her family relationship with her spouse. The client has not presented evidence that confirms that her husband or any other family members in Australia are seriously or critically ill. It is noted that the client’s spouse has been treated for his conditions and as a resident in Australia, the client’s spouse will have access to local community services, in the absence of the client. No evidence has been presented that demonstrates that the client’s current circumstances would prevent their departure from Australia.
As international borders have re-opened without restriction, the client is able to depart Australia and or return to their home country and apply for a visa outside Australia. Therefore, I do not find the circumstances to be compelling in nature
In considering all the information, the client has provided to support the request to waive condition 8503 I have assessed these claims against the criteria in Regulation 2.05(4). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations and therefore the condition 8503 has not been waived under sub-section 41(2A) of the Act.
Decision
As I find that the circumstances in subregulation 2.05(4) are not met by the client, I therefore refuse the request by the client for a waiver of condition 8503.
It is of note that on the question as to when the applicant became a carer to the man who subsequently became her husband, the only evidence as to when she might have first become a carer was as set out in a medial report of one Dr Richard Cue dated 11 December 2010. That report recorded that as at the date of the report, the applicant’s future husband was then being cared for by her. (The reference in the report to the applicant being Chinese was clarified by later filed affidavit evidence identifying the applicant as the carer referred to in that report.) Hence, the applicant assumed the role of carer at a time well after she first became an unlawful entrant, which was at a time three months after the grant to her of the Visitor Visa, and well before she had been granted a bridging visa.
There was no evidence as to when the applicant first met her future husband, or as to when the applicant’s future husband was granted a disability pension. The applicant failed to provide that relevant information to either the delegate or the Court. Such information was relevant because it would have allowed the delegate and the Court to assess what knowledge the applicant had of the medical and orthopaedic condition of her future husband at the time she first met him. In such circumstances, the delegate had no way of assessing whether or not the future husband’s condition was a circumstance which fell under r. 2.05(4)(a) of the Regulations or not. The delegate had no way of knowing whether the future husband’s allegedly critical illness/condition had or had not developed since the issue to the applicant of the Visitor Visa, or whether any such illness/condition was a pre-existing state of affairs. It was the responsibility of the applicant to adduce such evidence, but she failed to do so.
On 3 March 2023, the applicant’s lawyers filed an Application for Review of the decision of the delegate, the grounds of which were as follows:
Grounds of application
1.The Respondent’s decision of 8 December 2022 is vitiated by jurisdictional error because the decision-maker misconstrued the term “compelling and compassionate circumstances” in r 2.05 of the Migration Regulations 1994.
2.The Respondent’s decision of 8 December 2022 is vitiated by jurisdictional error because the decision-maker relied on findings that the Applicant’s circumstances did “not affect their ability to depart Australia” and that no evidence was “presented that demonstrates that the client’s current circumstances would prevent their departure form Australia”, when such findings were neither relevant to nor required by r 2.05 of the Migration Regulations 1994 de.
3.The Respondent’s decision of 8 December 2022 is vitiated by jurisdictional error because the decision-maker relied on irrational, illogical or legally unreasonable reasoning by finding that the Applicant’s “spouse has health and mobility issues and that he would like to client to be able to stay and continue to care for him” but then reasoning that the Applicant had “not presented evidence that confirms that her husband or any other family members in Australia are seriously or critically ill”.
Ground 1 was a claim that the delegate had misconstrued the term “compelling and compassionate circumstances” by failing to “ … consider the change in the applicant’s circumstances from the time that she was granted the initial visa on 29 January 2009 to the date of the decision. The initial decision’s reasoning shows no consideration of these facts.”
The delegate, in the first two paragraphs of his reasons, considered what was a compelling circumstance, as well as what was a compassionate circumstance. The delegate then went on to consider the particular circumstances of the applicant’s husband, and the lack of evidence surrounding, or concerning, his medical condition as at the time of the making of the delegate’s decision. The evidence concerning the applicant’s husband’s medical condition leading up to the making of the delegate’s decision was set out in a report of Dr Cue dated 9 September 2022. [4] The report recorded that the husband suffered from complications from past surgeries and that he was on a disability pension. It was said that the husband mobilised with a stick and used a scooter for travel. It also recorded that the applicant cooked, cleaned and shopped for her husband.
[4] CB p 36.
The applicant’s husband was present in Court on each of the two occasions on which the matter was before the Court. He was not seated on a scooter on either occasion. It was open for the delegate to find that the applicant had not presented evidence to the delegate of her family relationship with her spouse, or evidence which confirmed that her husband was seriously or critically ill. In particular, there was no evidence before either the delegate or the Court which was suggestive of the applicant’s husband being unable to fend for himself or otherwise access community services should the applicant be required to leave Australia and make a Partner Residence Visa application off-shore.
There is no merit to Ground 1.
Ground 2 was a claim that the delegate had taken into account irrelevant matters when arriving at its decision which were not relevant to, or required for consideration by, r. 2.05 of the Regulations. There is no merit to such claim.
The delegate was entitled to find that there was no evidence that the applicant would be placed in any physical danger, or would otherwise be precluded from returning to Indonesia (such as for example her being in an impecunious state) to make a visa application off-shore. Those were factors which ought properly to have been considered by the delegate before finding that there was no reason why the applicant should not travel back to Indonesia. The delegate did not otherwise err in finding that the applicant’s circumstances did not affect her ability to depart Australia. It was a matter for routine consideration and was not exceptional.
Ground 3 was a claim that the delegate was irrational, illogical or legally unreasonable by finding that there was no evidence that the applicant’s husband was not seriously or critically ill, notwithstanding that the delegate had found that the applicant’s husband had health and mobility issues. The Court finds that the delegate was there merely drawing a distinction between the absence of evidence of what might have established that the applicant’s husband was seriously or critically ill on the one hand, as opposed to the evidence of Dr Cue in the September 2022 medical report on the other hand which indicated in a general and non-specific way that the spouse had unspecified complications from prior surgery.
No extreme illogicality was demonstrated in the reasoning process of the delegate. [5] Further, it could not be said that the reasoning of the delegate lacked an evident and intelligible justification. As was held by Kiefel CJ in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [10]-[11]:
“[10]In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11]Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
[5] CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 at [60]-[61] per
The applicant failed to put before the delegate, or the Court, sufficient evidence to justify any finding that there were compelling and compassionate circumstances which had developed over time. Indeed, there was no evidence as to when the applicant first met her spouse, what his condition was at the time of first meeting him, or whether the applicant had assumed a carer role in respect of a person whom she well knew to be disabled. As to the latter, if it was the case that the applicant entered into a carer role well knowing that her future spouse was disabled, the Court finds that that would have been a disentitling circumstance under r. 2.05(4)(a)(i), because to so enter into a carer role was something over which the applicant did have control. There are sound public policy reasons why visa eligibility requirements, in that regard, should not be allowed to be circumvented.
The applicant has failed to establish jurisdictional error on the part of the delegate.
The Grounds of Review are without merit and are dismissed.
By reason of the above, there is no utility in granting the Application for Extension of Time to commence proceeding.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 May 2024
McKerracher, Griffiths and Rangiah JJ.
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