Vidovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 615

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vidovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 615

File number(s):

SYG 72 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

29 March 2021

Catchwords:

MIGRATION –  request to waive no further stay condition – whether the Delegate misapplied the relevant law – whether the Delegate failed to take into account compelling circumstances – whether the Delegate failed to take into account relevant considerations – no arguable case of relevant error made out – application dismissed.    

Legislation:

 Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) rr 2.05(4), 2.05(4)(b)

Federal Circuit Rules 2001(Cth) r 44.12

Number of paragraphs:

27

Date of hearing:

29 March 2021

Place:

Sydney

Solicitors for the applicant:

In person

Solicitors for the respondent:

Ms A Zinn, Mills Oakley

ORDERS

SYG 72 of 2020

BETWEEN:

RADOVAN VIDOVIC

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	29 MARCH 2021

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 first respondent’s costs fixed in the amount of $3,737.00

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 (“The Act”)  in respect of a non-reviewable decision of a delegate of the respondent (“The Delegate”) refusing to waive the applicant’s no-stay condition, dated 13 December 2019.

2. The applicant is a citizen of Bosnia. The applicant was granted a subclass 600 visitor visa on 21 September 2016 that was the subject of a no-stay condition, 8503. 

3. The first application for a no-stay condition waiver was the subject of a determination by a delegate on 3 October 2018.  On 13 March 2019, the application for judicial review was dismissed by this Court. 

4. The applicant made the second application for waiver on 18 March 2019. This is the second no-stay application made by the applicant in relation to his desire to provide care for his mother. 

5. The matter was fixed today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

6. On 6 March 2020, a Judge had made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file a notice of change of address for service, but no other documents. 

7. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under r 44.12 of the Rules. 

8. The applicant maintained that it was necessary for him to look after his mother.  This reflects a disagreement with the merits, and does not identify any arguable case of relevant error. 

9. The applicant also suggested that he had problems providing medical evidence because of COVID-19. This is not supported by the correspondence that was sent to the applicant on 29 March 2019, in respect of which the applicant provided limited information on 1 April 2019. The applicant suggested that the Delegate had not carefully considered the medical evidence.

10. The Delegate’s reasons correctly identified sub-regulation 2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”). 

11. The Delegate turned to the accident which occurred on 18 November 2017 and the applicant’s claims in regards to his mother’s deteriorating health including a diagnosis of cancer. The Delegate’s reasons, on page 164, 165 and 166 of the Court Book reflect a genuine intellectual engagement with the applicant’s claims concerning his mother’s condition. 

12. The Delegate did not accept that the applicant was the only person that could provide the care needed by his mother, and found that the applicant’s mother could receive care from other sources, including a range of community and health care services. 

13. The Delegate also found that the applicant could provide emotional and psychological support via electronic means. 

14. The Delegate did not find the circumstances compelling, and found the applicant failed to meet the criteria for the waiver of the condition.

15. The applicant’s disagreement with the adverse findings by the Delegate do not identify any arguable case of relevant error.

    THE GROUNDS

16. The grounds in the application are as follows:

    Ground 1

    (1)The Delegate of the Minister failed to understand the compelling circumstances and even though my mother has access to medical professionals but she needs my services day and night and I believe that the Department failed to understand and accept the severity of my mother's condition and that the dedication of a son is completely different than professional support which is available occasionally while I personally have been available to my mother since I came to Australia.

    Ground 2

    (2)The Delegate of the Minister failed to consider that the circumstances of my mother are sufficiently forceful and failed to ask the correct question as to what will happen to my mother if we are away from each other.

    Ground 3

    (3)The Delegate erred by considering that I have the option to continue providing emotional and psychological support via electronic means during any period of separation. The true fact of the case is that my mother needs my physical presence to continue attending to her needs contrary to the unrealistic thinking of the Delegate.

    GROUND 1

17. In relation to Ground 1, no circumstance has been identified that the Delegate failed to comprehend other than the disagreement by the applicant with the outcome.  Ground 1 is an invitation to this court to engage in an impermissible merits review, and does not identify any arguable case of relevant error.

    GROUND 2

18. In relation to Ground 2, there is no circumstance that has been identified that the Delegate failed to consider. The Delegate correctly identified the relevant law, and there is no basis to find that the delegate failed to ask the correct questions in relation to compelling and compassionate circumstances. 

19. The Delegate’s reasons reflect a consideration of all of the claims and evidence before the Delegate in considering whether the circumstances were compassionate and compelling. Ground 2, again, invites impermissible merits review, and does not identify any arguable case of relevant error.

    GROUND 3

20. In relation to Ground 3, it was open to the Delegate to take into account the support that the applicant could provide by electronic means. 

21. The applicant’s assertion of the need for his physical presence does not identify any arguable case of relevant error by the Delegate. It may well have been open to the Delegate to find that the circumstances did not meet the criteria under r 2.05(4)(b) of the Regulations.  The waiver request was again advanced, in substance, on the desire of the applicant to provide services to his mother. 

22. Any further waiver request on substantially the same circumstances may give rise for the court having to consider whether the applicant should be permitted to continue to bring such proceedings.

23. The Court finds that the application in the present case has not raised an arguable case for the relief claimed.

24. The Court finds that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

25. For the purpose of any future application, the Court finds that these proceedings have no reasonable prospect of success. A further no-stay waiver application on the same grounds may give rise to the Court having to consider whether the applicant should be permitted to continue to bring such proceedings in this Court.

26. The applicant will not be permitted to make repetitive applications for, in substance, the same waiver request.

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 29 March 2021 and the parties were sent a sealed copy of the Court’s orders.

.

Associate:

Dated:       09 June 2021