Tumur v Minister for Immigration

[2016] FCCA 2500

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUMUR v MINISTER FOR IMMIGRATION [2016] FCCA 2500

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister – refusal to waive condition on visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.41
Migration Regulations 1994 (Cth)

Cases cited:

Ahmed v Minister for Immigration [2015] FCA 812

Salazar v Minister for Immigration [2001] FCA 899

Applicant: ZORIGT TUMUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 876 of 2016

Judgment of: Judge Driver

Hearing date: 28 September 2016

Delivered at: Sydney

Delivered on: 28 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms A Wong of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 876 of 2016

ZORIGT TUMUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Tumur, came to Australia as a student in 2013. His wife, Zoljartal Khisgee, is also a student in this country. Mr Tumur’s visa had attached to it condition 8534, which prevented him from applying for most additional visas. It appears that the condition was imposed pursuant to regulations made under s.41(2) of the Migration Act 1958 (Cth). Condition 8534 states that 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 remaining in Australia.

2. Mr Tumur’s student visa expired in December 2013.  He remained in Australia as an unlawful non-citizen until 30 July 2015 when he was granted a Bridging Visa B, which remains in effect.  Mr Tumur unsuccessfully sought another kind of visa which is not currently relevant.  Following the failure of that application, he has reunited with his wife. 

3. As a consequence of that change, Mr Tumur twice sought a waiver of the condition on his visa.  The waiver requests are detailed in the Minister’s outline of submissions filed on 19 September 2016. 

The waiver requests

1. On 18 December 2015, Mr Tumur lodged a request to waive condition 8534 (the first waiver request) stating that he wished to lodge a visa application to be a dependent on his wife’s student visa[1]. The first waiver request was refused on 4 January 2016 on the basis that Mr Tumur’s circumstances were not sufficiently forceful to waive condition 8534[2].

   [1] Court Book (CB) 1 -13

   [2] CB 14-17

2. On 15 March 2016, Mr Tumur lodged another request to waive condition 8534 (the second waiver request) because he wished to remain in Australia with his partner who is a student visa holder[3].  Mr Tumur and his wife have two children together, who reside in Mongolia.  Mr Tumur stated that they intended to rebuild their relationship and reunite their family onshore[4].

   [3] CB 18-44

   [4] CB 20

The delegate’s decision

1. On 18 March 2016, the delegate refused the second waiver request. The delegate provided brief reasons for the decision, although there was no obligation on the delegate to produce reasons for a decision made under regulation 2.05(4)[5].

   [5] Salazar v Minister for Immigration [2001] FCA 899 at [26]

2. The delegate found that the claims in support of the second waiver request were not substantially different to the “fears and claims” relating to the first request[6].

   [6] CB 49

The present proceedings

1. These proceedings began with a show cause application filed on 13 April 2016.  There are two grounds in the application:

   1. The decision by the Department is wrong because my request was misunderstood as to the compelling and compassionate circumstances.  The Officer failed to understand my compelling circumstances.

   2. The Officer referred to my new application and circumstances as not substantially different from the first request.  Such finding is wrong because the Officer failed to show why the two requests are not substantially different.

2. The first ground bears on the initial departmental decision, which is not the subject of these proceedings.  The second ground bears directly on the decision subject to review. 

3. The application is supported by a short affidavit filed with it, which I received. 

4. I also have before me as evidence the court book filed on 30 May 2016.

5. The Minister and Mr Tumur made written submissions in advance of today’s hearing.  I also received oral submissions from Mr Tumur and his wife, Ms Khisgee.  Mr Tumur and Ms Khisgee in their oral submissions explained their circumstances.  Ms Khisgee completed accounting studies earlier this year and, in about July this year, commenced a four year course in human relations at a business college.  She has been granted a further student visa valid until 2020. 

6. Ms Khisgee cogently explained that if Mr Tumur is required to return to Mongolia, she will not be able to complete those studies because she depends upon him for financial and emotional support.  Those are circumstances which might support a third application by Mr Tumur for the waiver of the condition on his visa.  They are, however, circumstances which have developed after the delegate’s decision under review.

7. The delegate was under no obligation to give reasons for his decision.  It follows, in my view, that the second ground in the application could not succeed unless Mr Tumur was able to demonstrate that the decision made by the delegate was not open to him on the material before him.  Plainly, the decision was open. 

8. Mr Tumur’s circumstances had not materially changed between the first and second requests.  All that changed was that Mr Tumur was able to produce some additional supportive material in the form of a letter from his wife and a social worker’s report.  It follows, and I find, that the delegate’s decision that a material change in circumstances had not been demonstrated was open to him on the material before him.

9. The question of the presence of absence of compelling and compassionate circumstances was not the focus of the second delegate’s decision.  It did not need to be because of the additional requirement imposed by regulation 2.05(4)(b) of the Migration Regulations 1994 (Cth).

10. Relevantly, Mr Tumur was required to satisfy the Minister that his circumstances at the time of the second request were substantially different from those considered previously.  The delegate found they were not, and that decision was plainly open to him.  I otherwise agree with the Minister’s submissions in relation to the applicant’s grounds.

11. Regulation 2.05(4)(a) relates to an applicant’s first attempt to apply for a waiver, and requires that compelling and compassionate circumstances have developed since an applicant was granted the visa over which the person had no control, that resulted in a major change to the applicant’s circumstances.

12. Regulation 2.05(4)(b) relates to a further attempt to seek waiver and provides that the Minister cannot waive a condition if the waiver request has already been made but there is nothing, in substance, new as at the time of the second request.

13. The delegate correctly applied regulation 2.05(4)(b) because this was Mr Tumur’s second waiver application and correctly considered whether he was satisfied that the circumstances of the second waiver application were substantially different from those which had previously been considered. It was appropriate in those circumstances, that there was no consideration as to whether the circumstances alleged by Mr Tumur were compelling.  

14. In support of the first waiver request Mr Tumur stated that he “wished to lodged an application as a dependent” (sic) of his wife “who continues her study” and that he was “financially supporting” his wife and two children. In support of the second waiver request, Mr Tumur’s wife provided a short letter stating that after she and Mr Tumur broke up, they decided to “rebuild” their family and that Mr Tumur supported her “by countenance and financial support.” Mr Tumur also provided a “social work assessment report” which stated that Mr Tumur and his wife “presented with relationship issues and fear of the unknown relating to [Mr Tumur’s] irregular immigration status.”

15. The critical question was not whether the claims were substantially different; it was whether the delegate was satisfied that this was so[7].  A fair reading of the delegate’s refusal letter makes clear that the delegate understood the relevant law that it was to apply in considering the second waiver application made by Mr Tumur. The findings that he made were open to him on the evidence and material before him and for the reasons he gave. The grounds raised by Mr Tumur fail to raise an arguable case for the relief claimed.

    [7] Ahmed v Minister for Immigration [2015] FCA 812 per Perram J at [18]

16. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

17. In consequence of the dismissal of the applicant, the Minister seeks an order for costs in accordance with the Court scale.  Mr Tumur did not wish to be heard on costs.

18. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 September 2016