Yang v Minister for Home Affairs

[2019] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v MINISTER FOR HOME AFFAIRS [2019] FCCA 287

Catchwords:

MIGRATION – Review of Minister for Home Affairs decision – application out of time – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

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

Applicant: SOKHA YANG

Respondent: MINISTER FOR HOME AFFAIRS

File Number: BRG 543 of 2018

Judgment of: Judge Vasta

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Brisbane

Delivered on: 6 February 2019

REPRESENTATION

Solicitors for the Applicant: PLS Lawyers

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Application filed 4 June 2018 is dismissed.

2. That the Applicant pay the costs of the Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 543 of 2018

SOKHA YANG

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 16 April 2018, the delegate of the Minister refused to waive a condition on the Applicant’s application for a visa. That decision having been made, the Applicant had 35 days after that decision to bring the matter before this Court, that date being 21 May 2018. It was 4 June 2018 when the Applicant made the application. The application is therefore 14 days out of time and the Court must consider whether leave should be given.

2. The background to the matter is that the Applicant arrived in this country on 23 April 2011 on a tourist visa. That tourist visa had a condition 8503 which was that the Applicant cannot make another visa application whilst in Australia. There are circumstances in which the Minister can waive that condition.

3. The Applicant, whilst on the tourist visa, formed a deep friendship and eventually married a man who is certainly older than she is and also was very ill. The Applicant made a request for a waiver for condition 8503 in mid to late 2015. In November 2015, the delegate refused to waive the condition.

4. I do note, though that it is not a matter that forms any part of my decision, that after that time, the Applicant has apparently also made another application for a different type of visa.  That matter is still proceeding.

5. Nevertheless, the Applicant made another application for a waiver of condition 8503 in early 2018.  Sub-regulation 2.05(4) reads as follows:

   (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.

6. The request was in writing and the Applicant submitted that there had been a change in circumstances.  The delegate noted this; that where the Minister had previously refused to waive the condition, the Minister must be satisfied that compelling and compassionate circumstances have developed since the grant of the visa and the circumstances must be of the sort over which the client had no control. This must have resulted in a major change to the client’s circumstances and they must be substantially different from those considered previously.

7. The claims, in this second request, are that the Applicant married an Australian citizen. The Applicant’s husband, the person whom she married, needs 24 hour care and the husband’s children are not available to provide that care. The only difference in those circumstances listed from 2015 to 2018 are that the children are not available to provide the care.

8. The delegate acknowledged that the Applicant had no control over her husband’s deteriorating health, but pointed out that the Applicant chose to marry and provide care and that was not a circumstance outside of her control.

9. It was noted that the husband was suffering from the medical conditions he is now suffering prior to the Applicant entering into a relationship with him, therefore the delegate did not find those circumstances outside of the control.

10. The delegate noted the statutory declarations of the children. What it is that they say, is that they are not able to look after their father and would like the Applicant to care for him. The delegate noted that he (the delegate) had considered alternate options available for care and was not satisfied that the Applicant was the only person who could care for the husband.

11. The delegate noted that he considered that alternative care options may only be a temporary measure whilst the Applicant departs Australia to lodge an appropriate visa.  The delegate said this:

    …I do not find the client’s husband’s children not being willing to care for their father to be sufficiently forceful to waive the client’s no further stay waiver condition. I therefore do not find the client’s circumstances compelling.

12. This decision was one which did not come within the merits review of the Administrative Appeals Tribunal and so therefore has come to this Court seeking judicial review.  It is trite to say that there must be a jurisdictional error before this Court can interfere. 

13. The grounds for the review, as written in the originating application, were voluminous, however, did not venture from the very general and so did not realistically list proper grounds.

14. The Applicant, in her written submissions, has made these submissions.

15. Firstly, the relationship between the Applicant and her husband over many years was based on a deep love and friendship which led to the marriage and the relationship was not based on an opportunistic and self-interested decision by the Applicant.  The submissions further go on:

    6. It is submitted that the delegate for Minister for Immigration miscomprehended his authority by not accepting the deteriorating health condition of the husband and his children are not capable to provide care for him as compelling and compassionate grounds for exercising his authority given by the act. The delegate thereby did not act in a way that was fair and just -

    7. It is further submitted the delegate came to an arbitrary finding that alternate options are available for husband’s care without any evidence before him to substantiate his assertion.

    8. Therefore, it is submitted that the decision was unreasonable.

16. Again, it is trite to say that it is not for the delegate to justify a particular position.  It is for the Applicant to put evidence before the delegate that would show that there are no other alternate care options open.

17. The delegate, in effect, found, not that the children were unable to look after their father, but rather that they were unwilling to look after their father.  That seems to be a conclusion that is open when one has a look at the statutory declarations that were given by the children. 

18. The first one simply says:

    That I am the daughter of the Mr. Ang Touth… and that I hereby state that I am unable to care for him and request that my step-mother, Ms Sokha Yang… be the person who will care and look after my ageing father instead.

    Therefore, I request the Department of Immigration and Border Protection to grant spouse visa for my step-mother so that she can continue to care for and look after my father.

19. That is all that is written in that statutory declaration.  The son has an even more sparse statutory declaration:

    I am the son of Mr Ang Touth … and that I hereby state that I am unable to care for him and I request that my step-mother, Ms Sokha Yang… be the person who will care and look after my aging father instead.

    Therefore, I request the Department of Immigration and Border Protection to grant a spouse visa for my step-mother so that she can continue to care for and look after my father.

20. In the end, it is for the delegate to be convinced that that is a true state of the evidence that the children are “unable”.  On this evidence, the delegate was not satisfied.  The decision cannot be said to be unreasonable on that evidence. 

21. It is not that if I were in the shoes of the delegate, I might find a different state of affairs because that is not the test.  The test is whether, in all the circumstances and upon all the evidence that was before the delegate, whether the decision of the delegate was open.

22. In this case, it certainly was open because the only change in circumstances from 2015 was an allegation that the children cannot look after him; and the only basis of that state of affairs were the rather unsatisfactory statutory declarations that were put before the delegate. The delegate does not have to be in a position to say, “Well, that is the only evidence before me, therefore I must accept it”. The delegate must be more robust than that and, having a look at that evidence, be satisfied himself.

23. Therefore, because that is a conclusion that was open, there cannot be said to be any jurisdictional error. 

24. The Court has to consider whether or not it would give leave to file the application out of time.  As was said during the course of argument, there are three matters that the Court looks at.  Firstly, it looks at what was the excuse as to why there has been late filing; secondly, the Court looks at what prejudice there would be to the Minister, the Respondent; and, thirdly, the Court looks at whether or not there is an arguable case.

25. In this matter, the Applicant simply submits that she was not legally represented and that was the reason why she did not put the application in on time. Mr Bandara, who is appearing for the Applicant, has submitted that the form was actually signed on 25 May but not submitted till 4 June. Even if the form was signed on 25 May, that is still four days out of time. The excuse that one is not legally represented is not a valid excuse.

26. Whilst I acknowledge that there would not be any prejudice to the Minister, as I have already indicated, I do not find that there is sufficient merit in the claim to warrant the Court considering it, because if it did consider it, as I have done, it would find that there is no jurisdictional error.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 May 2019