Zaro v Minister for Immigration

[2018] FCCA 2913

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZARO v MINISTER FOR IMMIGRATION [2018] FCCA 2913

Catchwords:
MIGRATION – Review of a departmental decision not to waive the no further stay condition on a visa – interlocutory dismissal of show cause application – no   arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.41, 338, 476

Migration Regulations 1994 (Cth)

Cases cited:

Farhat v Minister for Immigration [2018] FCA 93

Karan v Minister for Immigration [2017] FCA 872

Applicant: SUSAN TOMA ZARO

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3678 of 2017

Judgment of: Judge Driver

Hearing date: 15 October 2018

Delivered at: Sydney

Delivered on: 15 October 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr M J Smith

Solicitors for the Respondent: DLA Piper

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, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3678 of 2017

SUSAN TOMA ZARO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Ms Zaro, seeks judicial review of a decision of a delegate of the Minister (delegate) made on 21 November 2017.  The delegate refused a request to waive condition 8503, “no further stay”, on Ms Zaro’s visa. 

2. There is no dispute that this Court has jurisdiction in respect of Ms Zaro’s application.  This is because although this Court does not have jurisdiction in respect of a “primary decision”,[1] the delegate’s decision was not a “primary decision” as it was not reviewable under Part 5 of the Migration Act 1958 (Cth) (Migration Act).[2]

   [1] See s.476(2)(a)

   [2] Section 476(4)(a); s.338

3. Background facts relating to this matter are set out in the Minister’s legal submissions filed on 4 October 2018. 

4. Ms Zaro arrived in Australia on 9 August 2017 as the holder of a visitor visa, which was valid for three months from the date of entry. Attached to this visa was condition 8503, which is located in Schedule 8 to the Migration Regulations 1994 (Cth) (Migration Regulations). Commonly referred to as the “no further stay” condition, condition 8503 is in the following terms:

   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.

5. The “no further stay” condition was imposed on Ms Zaro’s visitor visa pursuant to the regime established by s.41 of the Migration Act. Section 41 relevantly provides as follows:

   Conditions on visas

   (1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

   General rules about conditions

   (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, or a temporary visa of a specified kind) while he or she remains in Australia; or

   (b)a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

   (i)     any work; or

   (ii)     work other than specified work; or

   (iii)   work of a specified kind.

   (2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

6. The circumstances in which a condition many be waived are set out in regulation 2.05(4) of the Migration Regulations, which was in the following terms:

   (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.

7. On 9 November 2017, Ms Zaro lodged a request with the Minister’s Department that condition 8503 be waived.  Her stated reason for seeking the request was that she wished to remain permanently in Australia with her husband.[3] 

   [3] Court Book (CB) 2-5

8. On 21 November 2017, the delegate refused to waive condition 8503 on the basis that compelling circumstances did not exist to justify such waiver.[4]

The delegate’s decision[5]

[4] CB 28-30

[5] CB 29-30

1. In considering whether condition 8503 should be waived, the delegate had regard to (as was required) regulation 2.05(4) of the Migration Regulations. The delegate accepted that Ms Zaro had married an Australian citizen and would like to remain in Australia with her new husband and that this was a compassionate circumstance. Ms Zaro suggested that she would be depressed were she to be separated from her husband. However, unlike in Karan (see [13] below) and in Farhat v Minister for Immigration,[6] Ms Zaro did not adduce any medical evidence that suggested that she would suffer demonstrable mental harm were she to be separated from her husband.

   [6] [2018] FCA 93

2. The delegate was aware of Ms Zaro’s claim that a separation would cause her depression and anguish, but nevertheless did not accept that Ms Zaro’s circumstances were sufficiently compelling to justify waiver of condition 8503.  The delegate referred to the fact that Ms Zaro was aware that when marrying an Australian citizen she did not have an entitlement to permanently reside in Australia.  The delegate also noted that it was open to Ms Zaro to make her visa application offshore, and that if this visa was granted, Ms Zaro would only be temporarily separated from her husband.

The present proceedings

1. These proceedings began with a show cause application filed on 27 November 2017.  Notwithstanding some hesitation, Ms Zaro continues to rely upon that application.  It is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 15 January 2018.  Only the Minister filed written submissions in advance of today’s hearing. 

2. I invited oral submissions from Ms Zaro this morning.  She told me that she had come to better understand her position in the light of the Minister’s written submissions.  She considers that she was disadvantaged before the delegate because she had been assisted by a person whose involvement appears not to have been disclosed to the Minister’s Department.  Ms Zaro considers that she was poorly advised by that person. 

3. Ms Zaro says that she now understands that in order to achieve a successful outcome, she would have needed to furnish further information such as medical evidence.  In that regard, the Minister’s submissions address, and I have taken into account, the decision of the Federal Court in Karan v Minister for Immigration.[7]  In that case, the delegate did not take properly into account expert medical opinion dealing with the applicant’s mental health status.  The case was also distinguished by the factual circumstances, including a history of domestic violence in a prior marriage and a young child.  This is not that case.  As I explained to Ms Zaro, she had at least two problems before the delegate.  The first is that her circumstances, while compassionate, were not accepted as compelling by the delegate.  That conclusion was open to the delegate on the material before her.

   [7] [2017] FCA 872

4. Further, the delegate concluded that entering into a relationship resulting in marriage was not a circumstance outside Ms Zaro’s control.  That conclusion was also open to the delegate on the information before her. 

5. In my view, there is no substance in the grounds of review advanced by Ms Zaro. 

6. Ms Zaro’s application contains three grounds of review, each of which takes issue with the merits of the delegate’s findings.

First ground of review

1. In the first ground, Ms Zaro contends that the delegate misunderstood the degree of harm that Ms Zaro would suffer if she were to be required to leave Australia.  This contention cannot be accepted.  The delegate considered the circumstances that Ms Zaro proffered in support of her claim, but did not consider such circumstances to be sufficiently compelling to justify waiver of condition 8503. 

Second ground of review

1. In the second ground, Ms Zaro contends that her circumstances are compelling and sufficiently forceful to waive condition 8503.  This contention is nothing more than an expression of dissatisfaction with the merits of the delegate’s findings.

Third ground of review

1. In the third ground of review, Ms Zaro appears to be contending that she was not aware when marrying her husband that she would not be permitted to stay in Australia permanently.  Ms Zaro also appears to be contending in this ground that she would be prejudiced if she were required to apply for a visa offshore because of a change in circumstances which occurred after the grant of the visa.

2. Again, this ground of review rises no higher than an attack on the merits of the delegate’s decision. 

Conclusion

1. I conclude that Ms Zaro is unable to advance an arguable case of jurisdictional error by the delegate. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Ms Zaro doubted her capacity to pay costs, but impecuniosity is not a reason to refrain from making a costs order. 

3. I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     16 October 2018