Tlais v Minister for Immigration
[2017] FCCA 1576
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TLAIS v MINISTER FOR IMMIGRATION | [2017] FCCA 1576 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for waiver of condition 8503 to Sponsored Family Visitor visa – waiver refused because circumstances not “compelling” and not “over which the applicant had no control” under reg.2.05(4) of Migration Regulations 1994 (Cth) – application to this Court for judicial review of delegate’s refusal – delegate correctly construed reg.2.05(4) – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41, 338 Migration Regulations 1994 (Cth) |
| Cases cited: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 |
| Applicant: | BAKKAR TLAIS |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 86 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 August 2016 |
| Date of Last Submission: | 4 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person. |
| Counsel for the Respondent: | Ms C Saunders |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 15 January 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 86 of 2016
| BAKKAR TLAIS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Lebanon, aged 27 years, having been born on 5 February 1990.
By Application filed in this Court on 15 January 2016 he seeks to quash and have redetermined the decision of a Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister) dated 21 December 2015 refusing his request to waive condition 8503 in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) to which his Sponsored Family Visitor (Subclass 679) visa (Visitor visa) was subject under the Migration Act 1958 (Cth) (the Act). Condition 8503 prevented him from being granted a further substantive visa other than a Protection visa while he remained in Australia.
I note at this point that the decision of the Delegate refusing to waive condition 8503 is not a Tribunal-reviewable decision as provided by s.338 of the Act and therefore is not susceptible to any merits review application. Consequently it was necessary for the Applicant to approach this Court with respect to the decision by way of an application for judicial review: Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 (Ahmed) at [11] per Perram J and Kumarv Minister for Immigration and Border Protection [2016] FCA 1330 (Kumar) at [2] per Jagot J.
Relevant Factual and Legal Background
The Applicant has held three Sponsored Family Visitor visas granted respectively on 5 June 2007, 25 July 2008 and 15 May 2012.
The Applicant last arrived in Australia on 24 May 2012 and the third Sponsored Family Visitor visa expired on 5 July 2012.
Since last arriving in Australia, the Applicant has lodged two unsuccessful Protection Visa applications, respectively on 22 June 2012 and 25 June 2013. He has been unlawfully in Australia either since 26 September 2013 or 14 October 2013, there being an ambiguity in the evidence in this regard.
On 25 June 2013 the Applicant lodged a request for Ministerial intervention which was not considered.
The Applicant then lodged two requests for the waiver of condition 8503 in Schedule 8 to the Regulations (condition 8503). The first request for waiver was refused by the Minister on 25 March 2015 and the second request for waiver was refused by the Minister on 20 November 2015.
On 14 December 2015 the Applicant lodged with the Minister a third request to waive condition 8503, which is as follows:
8503The 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 then existing legal statutory context to the Minister’s discretionary power to waive condition 8503 was stated by Allsop J (as he then was) in Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 (Salazar) at [5]-[8]:
[5]Subsections 41(1) and 41(2) of the Migration Act (the Act) provide as follows:
41(1) The regulations may provide that visas or visas of a specified class are subject to specified conditions
41(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) while he or she remains in Australia;
[6]Conditions such as are referred to in para 41(2)(a) are prescribed in the Migration Regulations 1984. Condition 8503 in Schedule 8 to the regulations provides:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
[7]Subdivision AA of Division 3 of Part 2 of the Act deals with applications for visas. The effect of s 46, which deals with the validity of these applications, is that, relevantly, an application for a visa by a person already in the migration zone is valid if, and only if, the applicant has not since last entering Australia held a visa subject to a condition of the kind prescribed in para 41(2)(a), or if the applicant has since entering Australia held a visa subject to such a condition, then the Minister has waived the condition under subs 41(2A) - see paras 46(1)(e)(i) and (ii).
[8]Subsection 41(2A) provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in para 41(2)(a) to which a particular visa is subject. The prescribed circumstances for the purposes of subs 41(2A) are contained in regulation 2.05(4), which relevantly is as follows:
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
...
c)If the person asks the Minister to waive the condition, the request is in writing.
I note here that Allsop J did not reproduce reg.2.05(4)(b) as it was not relevant to the facts in Salazar but it is relevant to this case and is reproduced in [12] below.
The waiver request lodged by the Applicant on 14 December 2015 was in writing and it indicated that the Applicant intended to apply for a Partner visa if his waiver request was granted. It recorded the refusal of the previous application for waiver of condition 8503 on 23 November 2015. The reason for his request of a waiver was that his wife, who was an Australian citizen, was pregnant and he relied in particular on a medical report dated 2 December 2015 from Dr Tin Nguyen which stated that his wife was 6 weeks and 3 days pregnant and had a past medical history of:
a)Cholecystectomy [i.e. removal of gallbladder];
b)Depression;
c)Gallstones; and
d)Sleeve gastrectomy (for obesity).
The prescribed circumstances in which the Minister may waive condition 8503 are set out in reg.2.05(4) of the Regulations which provides as follows:
2.05 Conditions applicable to visas
(1) …
(2) …
(3) …
(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 short, because the Applicant had made previous applications to the Minister to waive condition 8503 which had been refused, the prescribed circumstances in which the Minister might waive condition 8503 were that compelling and compassionate circumstances had developed over which the Applicant had no control which had resulted in a major change to his circumstances, and that those circumstances were substantially different from those previously considered by the Minister under the two earlier failed applications for waiver.
Then, if the Minister had been satisfied that the circumstances prescribed by reg.2.05(4) existed, the Minister’s discretionary power to waive a condition under s.41(2A) would have been enlivened: Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1529 at [7] per Moore J. However in the present case the Delegate did not have to generally exercise a discretion whether to refuse the application for waiver because she was of the opinion that the prescribed circumstances did not exist.
I observe here that there was no obligation on the Delegate to provide reasons for her decision: see Salazar at [26]; Kaur v Minister for Immigration and Citizenship [2011] FCA 969 at [8] per Reeves J and Ahmed at [11].
Notwithstanding that the Delegate was under no legislative requirement to provide a statement of reasons for her refusal of a waiver of Condition 8503, she quite properly did so in a 3 page letter addressed to the Applicant dated 21 December 2015 (refusal letter).
Delegate’s Decision
The Delegate commenced her refusal letter by recording that the request for a waiver of condition 8503 was because the Applicant’s wife was pregnant and her past medical conditions and noted the documents relied upon by the Applicant, including the letter from Dr Tin Nguyen dated 2 December 2015.
The Delegate then recorded that she was satisfied that the Applicant’s circumstances, being those stated in [11] above, were substantially different from those previously considered by the Minister, that such circumstances had occurred since the last Tourist visa granted to the Applicant on 15 May 2012, that they had resulted in a major change to the Applicant’s circumstances and that such circumstances were compassionate in nature.
Nevertheless, the Delegate found that the circumstances were not compelling and not such over which the Applicant had no control. Rather, the Delegate found that the Applicant and his wife had made a mutual decision to marry and to start a family and that pregnancy was in such circumstances a naturally occurring event in an ongoing relationship and in itself did not constitute compelling circumstances. The Delegate went on to find that the medical evidence in support of the application for waiver did not indicate that the wife’s past medical conditions were currently impacting upon her or would create complications with the pregnancy. The operative part of the refusal letter ended with the Delegate stating:
I am therefore not satisfied the circumstances presented in your request are sufficiently forceful to make a decision to waive the condition.
Grounds of Application
The Applicant relies on two Grounds, which are as follows:
Ground 1The Department of Immigration and Border Protection failed to interpret the changes of circumstances and to consider the medical report and its impact on the Australian sponsor.
Ground 2The Department of Immigration previously refused to waive 8503 No Further Stay Condition on 23 November 2015 and the current refusal of 8503 No Further stay Condition dated 21 December 2015, the Department of Immigration failed to consider the medical history of the sponsor as per Medical Report of Dr Tin Nguyen dated 2 December 2015, the Department’s comments and reasons for refusal are misinterpretation and misapplication of the law as the medical condition is compelling and the Department failed to consider the consequences on the sponsor whose circumstances are compelling as a result of pregnancy and medical history.
Consideration
Both of the Grounds relied upon by the Applicant allege that the Delegate “failed to interpret” and “failed to consider” the changes of circumstances, the medical report of Dr Nguyen and the wife’s medical history and also misinterpreted and misapplied the law.
In my view neither of Grounds 1 or 2 are made out. Of course, jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]. Jurisdictional error can also result from an administrative decision maker such as the Delegate identifying a wrong issue or asking a wrong question: Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
However, in my view the Delegate:
a)correctly had regard to and applied the relevant legislative and statutory provisions concerning waiver of condition 8503; and
b)gave meaningful consideration to the letter from Dr Nguyen and the wife’s medical condition, which together with the wife’s pregnancy, led the Delegate to be satisfied that the Applicant’s circumstances were substantially different circumstances from those previously considered and which the Delegate found to be “compassionate in nature”.
The Delegate on the first page of the refusal letter specifically stated that she had given “careful consideration” to “the relevant legislation and all the information and claims you have presented in your request”. On the second page of the refusal letter the Delegate specifically acknowledged and referred to the letter from Dr Nguyen.
Accordingly, the assertion in Grounds 1 and 2 that the Delegate failed to consider the wife’s medical history and the Applicant’s changed circumstances is simply not correct.
Circumstances Over Which No Control
Further, the Delegate did not misinterpret or misapply the law in coming to the view that the Applicant’s relevant circumstances did not constitute “compelling circumstances” or “compelling circumstances over which he had no control”.
The expression “over which the person had no control” found in reg.2.05(4)(a)(i) refers in this context to occurrences and events which the Applicant could do nothing to prevent: see Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 at 306-307 per Mansfield J. That was clearly not the case here. The Applicant had arrived in Australia and then stayed in Australia on a Tourist visa subject to condition 8503 but had then decided voluntarily and consensually with his wife to take steps to start a family and have a baby. It was not irrational, illogical or legally unreasonable for the Delegate to assess such circumstances as not being such that the Applicant had no control over them. The Delegate was legally entitled to come to the following view of the circumstances as stated in the refusal letter:
I acknowledge that the circumstances presented are compassionate in nature. I also acknowledge that this relationship and the pending birth of a child is a major change to your circumstances. I find, however, that your current circumstances were not outside of your control. I have considered that you and Ms Hamdan made the mutual decision to marry and to start a family. I do not find that it is a circumstance outside of your control or in itself does it constitute compelling circumstances.
Compelling Circumstances
Jurisdictional error could conceivably be shown in this case if the Delegate were to manifest a legally erroneous view as to what needed to be satisfied with respect to “compelling circumstances”.
However, that is not the case here. The Delegate said about the meaning of the word “compelling” in her refusal letter as follows:
Compelling means forcing 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.
The meaning given to the word “compelling” by the Delegate accords with the meaning given by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (M64/2015) at 187-188 [31] and that of Gageler J at 196-197 [64].
At 187-188 [31] of M64/2015 their Honours said:
[31] In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.
(citations omitted.)
At 196-197 [64] of M64/2015 Gageler J said:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
(citations omitted.)
In Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 the Full Court of the Federal Court comprised of Tamberlin, Conti and Jacobson JJ at 289 [21]-[24] stated as follows:
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge's view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
Finally, in Liu v Minister for Immigration and Border Protection [2015] FCA 1368 Markovic J said in connection with the expression “compelling circumstances” at [39]:
The circumstances must be “so powerful” that they would compel the decision-maker to make a positive finding in favour of waiving the required criteria.
In my view, the Delegate did not ask herself any wrong question in connection with the meaning of “compelling” or otherwise misinterpret or misapply the law in relation to “compelling circumstances” either at all or such as could amount to jurisdictional error.
Disposition
The Applicant has failed to establish that the refusal letter was affected by jurisdictional error and the Application must accordingly be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 11 July 2017
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