Vidovic v Minister for Home Affairs

[2019] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vidovic v Minister for Home Affairs [2019] FCCA 618  

File number(s):

SYG 2973 of 2018

Judgment of:

JUDGE STREET

Date of judgment:

13 March 2019

Catchwords:

MIGRATION– request to waive no further stay condition – whether the Delegate misapplied the relevant law – whether the Delegate failed to take into account material evidence– whether the Delegate failed to take into account relevant considerations – no jurisdictional error made out – application dismissed.      

Legislation:

 Migration Act 1958 (Cth) ss 41(2A), 476.

Migration Regulations 1994 (Cth), r 2.05(4).

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

34

Date of hearing:

13 March 2019

Place:

Sydney

Solicitor for the Applicant:

In person

Solicitor for the Respondent:

Ms A Zinn, Mills Oakley

ORDERS

SYG 2973 of 2018

BETWEEN:

RADOVAN VIDOVIC

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	13 MARCH 2019

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The applicant to pay the respondent’s costs fixed in the amount of $3,600.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“The Act”) in respect of a decision of a delegate of the respondent (“The Delegate”) refusing to waive the applicant’s no-stay condition, dated 3 October 2018. The decision of the Delegate is not a reviewable decision and is, accordingly, within this Court’s jurisdiction. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant is a citizen of Bosnia who was granted a visitor subclass 600 Visa on 21 September 2016.  Condition 8503 was attached to the visitor Visa and provides that the Visa holder will not, after entering Australia, be entitled to a substantive Visa other than a Protection Visa whilst the holder remains in Australia. 

4. The Minister has the discretion under s 41(2A) of the Act to waive the condition if r 2.05(4) of the Migration Regulations 1994 (Cth) (“The Regulations”) is satisfied.

5. Regulation 2.05(4) relevantly provides:

   (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.

6. The applicant applied for waiver of the condition on 23 November 2016.  On 19 December 2016, the Delegate refused the waiver request. 

7. On 12 April 2017, a Judge of this Court made orders by consent remitting the matter to the respondent for reconsideration.

8. On 19 April 2017, the applicant was invited by the Department to comment on the information that the applicant had a brother living in Australia. On 24 April 2017, the applicant responded to that invitation and provided a statement from his mother.

9. On 5 June 2017, the Delegate again refused the request for waiver. The Delegate considered the mother’s statement, and was satisfied that she could obtain additional assistance for medical services if required. 

10. On 11 April 2018, a Judge of this Court made orders by consent remitting the matter to the respondent for reconsideration. 

11. On 27 July 2018, the Delegate wrote to the applicant requesting further information. The Delegate noted that it was necessary to confirm which circumstances in the waiver request were still relevant and should be considered in the reassessment of the request. The Delegate requested a response within 28 days. No response to that letter was received. 

12. On 3 October 2018, the Delegate refused the waiver request. The Delegate acknowledged the applicant’s circumstances were compassionate as the applicant had assumed the role of carer for his mother following her surgery. The Delegate acknowledged the detailed medical evidence provided in relation to the applicant’s mother as set out in the applicant’s claims. The Delegate found the medical information was more than two years old and related to surgery which took place on 29 September 2016.

13. The Delegate found no response was received regarding the request of the applicant to provide current information demonstrating his mother’s requirement for care was ongoing. Accordingly, the Delegate found there were no claims or evidence to indicate that there was a requirement for ongoing care for the applicant’s mother. 

14. The Delegate found that since the request for additional six months was made on 23 November 2016, the applicant was afforded an opportunity to remain in Australia for a period of 22 months which exceeded the requested timeframe by 16 months.

15. The Delegate was not satisfied that the applicant’s mother required the applicant to provide care for her and was not satisfied the circumstances were sufficiently forceful to waive the condition. 

16. The Delegate did not accept the applicant’s circumstances were compelling and was not satisfied the applicant met the requirements of r 2.05(4) of the Regulations and, accordingly, refused to waive condition 8503.

17. The current proceedings were commenced on 23 October 2018. On 15 November 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

18. The applicant did file submissions to which the applicant annexed material relating to his mother that was not provided to the Delegate. The tender of the material was objected to by the respondent on the basis that it was not relevant as it was not before the Delegate.

19. The applicant contends that he provided the material to the Federal Circuit Court that had granted relief in respect of an earlier Delegate’s decision.  The applicant in that regard says that the material was provided on 6 of April 2018, and the provision of the documents to the Court was a provision of the documents to the Delegate.

20. There is no evidence before the Court that the documents were before the Delegate. Accordingly, the documents are irrelevant and incapable of establishing any arguable error.  It is for these reasons that the Court rejected the tender of the documents annexed to the applicant’s submissions.

21. The applicant contended that the Delegate had failed to take into account all recent medical evidence, being, in substance, the material annexed to the applicant’s submissions.  For the reasons the Court has already given, that was not material that was before the Delegate and is incapable of making out any arguable error.

22. The applicant’s written submissions, advance in substance the same proposition. That assertion is not the subject of any evidence. It is apparent that the applicant is seeking to assert that because information was given to the Court it was, therefore, given to the Delegate. That proposition is misconceived.

23. Nothing in the applicant’s oral or written submissions identifies any arguable jurisdictional error by the Delegate.

    THE GROUNDS

24. The grounds in the application are as follows:

    Ground 1

    (1)The Department failed to respond on the Further information submitted to the Department concerning the email of 27 July 2018.

    Ground 2

    (2)The Department failed to accept that as a result of my mother's health I became her carer and it is my intention to continue caring for my mother who has no one else to do so.

    Ground 3

    (3)The Department failed to consider the severity of my mother's health and failed to understand the claims that were being made in support of a waiver and failed to consider the situation and act on the medical evidence provided.

    GROUND 1

25. In relation to Ground 1, it is apparent that no information was provided by the applicant in response to the email from the Department dated 27 July 2018.  The Delegate identified that no such information had been provided and took that into account. The failure of the applicant to provide further information was a logical and relevant matter for the Delegate to take into account in determining whether or not to waive the condition. 

26. No arguable jurisdictional error is made out by Ground 1.

    GROUND 2

27. In relation to Ground 2, it is apparent that the Delegate did take into account the medical evidence that was before it in respect of the applicant’s mother’s health, but that that was two years out of date. In those circumstances, the reasons given by the Delegate are not ones that could be said to be illogical, irrational or unreasonable in respect of the refusal to waive the condition. 

28. No arguable jurisdictional error is made out by Ground 2.

    GROUND 3

29. In relation to Ground 3, the severity of the applicant’s mother’s health was one which the Delegate identified was based on medical evidence that was now two years old and that no further information had been provided when the applicant was given an opportunity to do so. 

30. There is no identified misunderstanding of the evidence or claims in the Delegate’s reasons and it is apparent that the Delegate did take into account the material that was before it. 

31. No arguable jurisdictional error is established by Ground 3.

32. From the bar table, the applicant asked for the Court to provide the applicant with a further six months on compassionate grounds. This Court has no power to determine the matter on compassionate or discretionary grounds. The statute binding this Court does not permit the Court to do so. 

33. The Court is not satisfied that the application has made out an arguable ground for the relief claimed. In these circumstances, nothing said by the applicant, in the material before the Court or the application identifies an arguable error by the Delegate. The Court is satisfied this is an appropriate matter to exercise the powers under rule 44.12 of the Rules.

34. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Rules 2001 (Cth).

I certify that the preceding thirty-four (34) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 March 2019 and the parties were provided sealed copies of the Court’s orders.

.

Associate:

Dated:       10 June 2021