Cheema v Minister for Immigration and Citizenship [2011] FCA 121 (21 February 2011)

Last Updated: 21 February 2011

FEDERAL COURT OF AUSTRALIA

Cheema v Minister for Immigration and Citizenship [2011] FCA 121

Citation:		Cheema v Minister for Immigration and Citizenship [2011] FCA 121
Appeal from:		Cheema v Minister for Immigration and Citizenship [2010] FMCA 705
Parties:		BARINDER CHEEMA v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 1260 of 2010
Judge:		FLICK J
Date of judgment:		21 February 2011
Catchwords:		MIGRATION – application to waive condition on visa – compelling circumstances – application refused – appeal dismissed
Legislation:		Migration Act 1958 (Cth) s 41 Migration Regulations 1994 (Cth) r 2.05
Cases cited:		Attorney-General (NSW) v Quin [1990] HCA 21, 170 CLR 1, considered Cheema v Minister for Immigration and Citizenship [2010] FMCA 705, affirmed El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038, 142 FCR 43, cited Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 793, cited Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566, cited Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 273 ALR 122, cited Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611, cited Mohamad v Minister for Immigration and Multicultural Affairs [2001] FCA 939, cited Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35, 216 CLR 277, cited Sevim v Minister for Immigration and Multicultural Affairs [2001] FCA 1597, 114 FCR 126, cited SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152, cited Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570, 135 FCR 335, considered Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590, considered Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648, considered Vanstone, Re; Ex parte Auva’A [2003] FCA 1506, 134 FCR 379, considered
Date of hearing:		7 February 2011
Place:		Sydney
Division:		GENERAL DIVISION
Category:		Catchwords
Number of paragraphs:		25
Counsel for the Appellant:		The Appellant appeared in person
Solicitor for the Respondent:		Ms L. Buchanan (AGS)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1260 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BARINDER CHEEMA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	FLICK J
DATE OF ORDER:	21 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Appeal as filed on 24 September 2010 is dismissed.
2. The Appellant is to pay the costs of the Respondent.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1260 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BARINDER CHEEMA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	FLICK J
DATE:	21 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant presently before the Court arrived in Australia on 11 November 2000 on a three month tourist visa. A condition (Condition 8503) was imposed and was 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.

This condition “is intended to be effective to disentitle a person holding a visa subject to that condition from obtaining any further visa while the person remains in Australia”: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 at [54], [2004] FCA 1038; 142 FCR 43 at 57 per Gray J.

2. The Appellant remained in Australia beyond the period permitted by his visa. An application for a protection visa was unsuccessful.
3. The Appellant has now turned his attention to seeking a waiver of Condition 8503. Central to the factual basis upon which the waiver was sought was the fact that the Appellant maintained that he had formed a strong bond with his godson, an Australian citizen. The request that the condition be waived was made on 21 May 2010 and was supported (inter alia) by a letter from both the Appellant and his godson. A recommendation detailing the Appellant’s arrival in Australia, his subsequent requests for a protection visa, and the factual basis upon which the request for waiver was being made was then prepared for the consideration of a delegate. The recommendation was that the Appellant’s “circumstances [were] not circumstances of the kind set out in sub-regulation 2.05(4) of the Migration Regulations”. The request was refused by a delegate on 26 May 2010.
4. An application for judicial review of the delegate’s decision was filed with the Federal Magistrates Court. That Court dismissed the application on 6 September 2010: Cheema v Minister for Immigration and Citizenship [2010] FMCA 705.
5. A Notice of Appeal was filed in this Court on 24 September 2010. The Appellant appeared in person before this Court on 7 February 2011 with the assistance of an interpreter.
6. The appeal is to be dismissed.

CONDITION 8503

7. The power to both impose a condition on a visa and the power to waive compliance is to be found in s 41 of the Migration Act 1958 (Cth). That section provided in relevant part as follows:

Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) ...
(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).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.

The term “prescribed” is in turn defined by s 5 as meaning “prescribed by the regulations”.

8. The relevant “prescribed circumstances” for present purposes are those set forth as follows in Regulation 2.05(4) of the Migration Regulations which provides as follows:

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.

9. In Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 Hely J had the opportunity to review these provisions. No occasion there arose, however, to construe the terms of Regulation 2.05. The applicant in that proceeding, rather than seeking a waiver of Condition 8503 that had been imposed on his travel visa, sought a further visa contrary to s 46(1A). His Honour nevertheless summarised the general effect of s 41 and Regulation 2.05 as follows:

[1] On 27 January 1999 the applicant was granted a visa to travel to and enter Australia and to remain in Australia for a period of one month as a visitor. The visa was endorsed “Conditions Mig. Regs. Sched. 8 ... 8503 No Further Stay”. Item 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) provides for a visa condition in the following terms:

“8503: 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.”

The source of the authority to impose that condition is s41(2)(a) of the Migration Act 1958 (Cth) (“the Migration Act”) when read with reg2.05 and such of the provisions of Schedule 2 to the Regulations as are applicable to a Subclass 676 Tourist (Short Stay) visa, particularly criterion 676.6.

[2] S 41(2)(a) of the Migration Act provides, in effect, that the Regulations may provide that visas are subject to a condition of the type contained in Condition 8503. S46(1A) of the Act provides that an application for a visa is invalid if, since last entering Australia, the applicant has held a visa subject to a condition described in s41(2)(a) and the Minister has not waived that condition under s41(2A).

[3] S 41(2A) was inserted into the Migration Act with effect from 1 March 1999. S41(2A) allows the Minister, by writing, to waive a condition of the kind referred to in s41(2)(a) in prescribed circumstances. Those circumstances are as set forth in reg2.05(4), of which the most important may be summarised briefly as the development of compelling and compassionate circumstances since the visa was granted on that condition, over which the visa holder had no control, but which have resulted in a major change in that person's circumstances.

See also: Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566; Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 793; Sevim v Minister for Immigration and Multicultural Affairs [2001] FCA 1597 at [33] to [38][2001] FCA 1597; , 114 FCR 126 at 137 to 139 per Gray J. Cases in which a waiver of Condition 8503 have previously been sought include cases which are “unfortunate” and present distressing family circumstances: eg, Mohamad v Minister for Immigration and Multicultural Affairs [2001] FCA 939.

10. The correct construction of at least some of the terms employed in Regulation 2.05(4) has also, from time to time, been considered by this Court. The requirement, for example, that there be a change in personal circumstances was considered in Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570, 135 FCR 335. The use of the term “circumstances”, it has also been pointed out, has been employed in a number of different ways in the Regulation: Vanstone, Re; Ex parte Auva’A [2003] FCA 1506 at [8], [2003] FCA 1506; 134 FCR 379 at 382 per Dowsett J. And the phrase “compelling and compassionate” received some attention in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 where O’Loughlin J said:

[21] The circumstances that must fit the description of “compelling and compassionate” must have developed since the grant of the visa ... There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.

In Terera, supra, Kenny J referred to these observations of O’Loughlin J and continued as follows:

[25] ... In a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of reg 2.05(4)(a). When a visa-holder requests the Minister, or Ministerial delegate, to waive a “no further stay” condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.

11. It is to be further noted that the source of the discretionary power to “waive a condition” is s 41(2A) and that the circumstances prescribed in Regulation 2.05(4) are but a specification of those circumstances which are a condition precedent to the exercise of the discretion. Unless the conditions precedent are satisfied, no occasion arises for the exercise of any discretion.
12. Of present relevance is the correct construction and application of those conditions precedent; no occasion arises for any consideration being given to the manner in which the discretion conferred by s 41(2A) is to be exercised. It is also unnecessary for present purposes to trace the path of any legislative amendments or variations in the terminology of Condition 8503 over the years. The phrase of present relevance, “compelling and compassionate circumstances”, would appear to have been at least common to Condition 8503 over a number of years.

THE GROUNDS RELIED UPON

13. The jurisdiction being exercised by the Federal Magistrates Court when dismissing the Appellant’s application was that conferred by s 476(1) of the Migration Act 1958 (Cth), namely the same jurisdiction the High Court of Australia has under s 75(v) of the Constitution. The jurisdiction being exercised is not a jurisdiction to revisit the factual merits of the delegate’s decision.
14. Notwithstanding the limited jurisdiction sought to be exercised, the “grounds of the application” relied upon before the Federal Magistrate – at least in part – were an invitation to impermissibly revisit the merits of the delegate’s decision. Those “grounds” were expressed (without alteration) as follows:

1. The delegate failed to accept the compelling circumstance.

2. The delegate failed to consider the information presented.

The former is not a proper ground of judicial review; the latter may be. But both “grounds” were considered and rejected by the Federal Magistrate. The Federal Magistrate correctly concluded that it was for the delegate to form his own view as to whether or not the circumstances presented for consideration were “compelling”. The second “ground” was rejected on the basis that the delegate had in fact considered the “information” presented. That “information” was identified during the course of the hearing before the Federal Magistrate as a submission made by the godson himself.

15. The Notice of Appeal filed in this Court again seeks to re-agitate substantially the same concerns. The Grounds of Appeal are there stated to be (again without alteration) as follows:
    1. The Deligate failed to understand the strong bond between Appellant & SHARMA & failed to accept the compelling circumstances
       
    2. The Hon Judge F.M. Raphael failed to see that the Deligate & himself ignored the MAJOR CHANGES of circumstances after the visa was issued.
       
16. Left to one side is the fact that the first Ground of Appeal fails to identify any error as made by the Federal Magistrate. It merely alleges error on the part of the delegate. Concurrence is nevertheless expressed with the conclusion of the Federal Magistrate that no legal error is discernible in the manner in which the delegate approached his assessment as to whether there were “compelling ... circumstances”. The delegate accepted a recommendation that the circumstances were not “compelling” in circumstances where the godson resided with his own family and had their ongoing support. Moreover, the recommendation further noted that the Appellant “has not provided any evidence to show that [the godson’s] health and well being will be jeopardised if he were required to depart Australia”. The recommendation accepted that there were “some compassionate circumstances” – but the Regulation requires that there be “compelling and compassionate circumstances”. Satisfying one requirement – but not another – is not sufficient. The findings of the delegate do not expose error.
17. There is, in any event, a further difficulty in the path of the present Appellant. Regulation 2.05(4)(a)(i) requires the circumstances relied upon to be also circumstances “over which the person has no control”. That latter requirement was also resolved adversely to the present Appellant by the delegate. The recommendation to the delegate, and accepted by the delegate, stated:

Mr Cheema made a conscious decision to remain in Australia beyond his visa validity period, apply for Protection and become a Godfather to his friend’s son. This decision was completely within Mr Cheema’s control.

There never has been a challenge to that conclusion.

18. The second Ground of Appeal presumably is an attempt to invoke Regulation 2.05(4)(a)(ii). Unlike the former Ground of Appeal, it does assert error on the part of the Federal Magistrate – but it fails to identify the “MAJOR CHANGES of circumstances” to which reference is made. So expressed, this is a ground that was not advanced for consideration before the Federal Magistrate. No error can normally be exposed by not considering an argument not advanced. It was during the course of submissions, however, that the Appellant identified the “MAJOR CHANGES of circumstances” as again being his relationship with his godson. So explained, this was but a variant of the former Ground of Appeal. It is an argument without substance. The recommendation to the delegate thus assumed the form of a series of questions and a response to those questions. One of those questions was expressed as follows:

Did the circumstances result in a major change to the client’s circumstances?

The response provided stated in part:

Mr Cheema’s claim that his Godson needs his ongoing support and guidance does not constitute a major change to his circumstances.

The emphasis given to “major change” and the underlining appears in the recommendation itself. The “change to his circumstances” was thus a matter taken into account and not “ignored”. The fact that the present Appellant undoubtedly desired a different factual outcome does not equate to those circumstances being “ignored”.

19. In rejecting the Grounds of Appeal, and in concluding that there is no discernible error in the decision of the delegate or (more relevantly) the decision of the Federal Magistrate, the following observations of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 at [17], 170 CLR 1 at 35 to 36 may be recalled:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

See also: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25], [2006] HCA 63; 228 CLR 152 at 160; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [19], [2010] HCA 16; 240 CLR 611 at 619 per Gummow ACJ and Kiefel J (diss); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23], 273 ALR 122 at 128 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. “Judicial review”, it has been said, “is not an invitation to judges to decide what they would consider fair or reasonable ...”: cf. Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 at [20], [2003] HCA 35; 216 CLR 277 at 288 per Gleeson CJ.

20. It should, perhaps in any event, be noted that there is no self-evident “administrative injustice or error” in the delegate’s decision.
21. Unlike the circumstances (for example) in Terera where it was concluded that jurisdictional error was established by reason of a failure to address the question arising under Regulation 2.05(4)(a), no such error or other jurisdictional error has been established in the present proceeding.

CONCLUSIONS

22. The appeal is to be dismissed.
23. There is no reason why the normal rule as to costs should not apply, namely that costs should follow the event.
24. One final matter should be noted. After the appeal was filed with this Court, and prior to the hearing of the appeal, the Federal Member for Greenway wrote directly to Chambers making representations on behalf of the Appellant. A copy of that letter was immediately disclosed to the legal representatives of the Respondent Minister. The letter should not have been sent. This Court is only informed as to the facts by reference to the evidence that was before the Judge whose decision is under appeal – or, in some cases, by reference to such further evidence as is admitted on appeal. Even in the case of an unrepresented appellant, the same constraints upon the ability of this Court to be informed as to the facts remain. An unrepresented appellant may not have been aware of such constraints; but it is surprising that a Federal Member of Parliament felt free to nevertheless communicate directly with the Court. On behalf of the Respondent Minister it was correctly contended that the letter from the Federal Member should not be taken into account. It has not been.

ORDERS

25. The orders of the Court are:
    1. The Notice of Appeal as filed on 24 September 2010 is dismissed.
    2. The Appellant is to pay the costs of the Respondent.
       

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:
Dated: 21 February 2011