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SZOYX v Minister for Immigration [2011] FMCA 104 (2 February 2011)
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Federal Magistrates Court of Australia
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SZOYX v Minister for Immigration [2011] FMCA 104 (2 February 2011)
Last Updated: 4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZOYX v MINISTER FOR
IMMIGRATION
|
|
MIGRATION – Application to review decision
of a delegate of the respondent to refuse to waive 8503 visa condition. |
|
Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Hearing date:
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2 February 2011
|
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Delivered on:
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2 February 2011
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REPRESENTATION
Solicitors for the Respondent: |
Sparke Helmore
|
ORDERS
(1) The application be dismissed.
(2) The applicant pay the costs of the respondent fixed in the sum of
$4,000.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 1469 of
2010
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
- This
is an application for review of a decision of a delegate of the respondent (the
Minister for Immigration and Citizenship) of
2 June 2010 to refuse to waive
condition 8503 in Schedule 8 to the Migration Regulations 1994
(Cth) imposed on the applicant’s Sponsored Family Tourist
(subclass 679) visa. The applicant is referred to by a pseudonym
as he was
previously a protection visa applicant.
- The
applicant, a citizen of Lebanon, was granted a three-month subclass 679 visa on
7 October 2008. It was granted subject to condition
8503 which provides that
the holder will not, after entering Australia, be entitled to be granted a
substantive visa other than a
protection visa while the subject remains in
Australia. He arrived in Australia on 28 October 2008. On 9 December 2008
he applied
for a protection visa which was refused on 6 March 2009.
- By
application signed on 23 February 2010 and received on 25 February
2010 by the Department of Immigration and Citizenship, the applicant
requested
that condition 8503 be waived. He provided information about his
circumstances, copies of his passport, birth and marriage
certificates and
supporting statutory declarations. The applicant and his wife, an Australian
citizen, married on 6 February 2010.
The applicant provided a copy of a letter
dated 25 February 2010 from a Dr R Nguyen confirming that the
applicant’s wife,
who had “been a patient at [his] surgery
for nearly 10 years”, had “Type I diabetes and [was]
on Insulin injections”.
- On
20 April 2010 a delegate of the respondent wrote to the applicant advising that
his request for waiver had not been successful
as the delegate had determined
that his circumstances did not satisfy the requirements of sub-reg.2.05(4) of
the Migration Regulations.
- The
applicant made a second request to waive condition 8503 on 17 May 2010. It
is the decision in relation to that second request
that is the subject of these
proceedings.
- In
his second request of 17 May 2010 the applicant repeated that he had
married on 6 February 2010 and claimed that when his wife
realised that he had
to leave Australia “her medical condition became vulnerably (sic)
and serious”, that she was “very confused”,
“unable to control her sugar level because of the stress” and
that she could not go with him to Lebanon because her doctor was in Australia,
that she had never been to Lebanon or separated
from her siblings and that she
had a job in Australia she could not afford to lose. It was also claimed that
she had regular insulin
injections. The applicant claimed that if he was away
from his wife, “her condition [would] be fatal”.
- The
applicant appointed a Mr Laba Sarkis as his agent to assist him with the
application. It is apparent from the form appointing
Mr Laba Sarkis that he is
not a migration agent.
- The
Department was supplied with copies of pages from the applicant’s
passport, a copy of the marriage certificate and a letter
dated 16 May 2010
(received on 17 May 2010) from Mr Laba Sarkis to the Departmental Case Officer
attaching a medical certificate
dated 15 May 2010 from Dr Nguyen in the
same terms as the earlier certificate, with the additional remark that the
applicant’s
wife was under the care of an endocrinologist, Dr Marwan Obaid
and stating that her diabetes had been “more volatile [and]
difficult to control recently due to the stress with her husband’s
residency issues”. Mr Laba Sarkis’ letter elaborated on
the personal circumstances of the applicant’s wife and her diabetes
condition
and asked the Department to consider her circumstances and waive
condition 8503 because her husband’s departure “will prejudice
her”. The letter also stated that “further medical
information from her Doctor Marwan Obaid (Endocrinologist) will be provided upon
your request”.
- The
applicant’s changed circumstances were said to be that he was the spouse
of an Australian citizen who suffered from diabetes
but was “unable to
control it because of the shocking future departure and separation from
her husband”.
- By
letter dated 2 June 2010 the Department wrote to Mr Laba Sarkis (as
representative of the applicant) advising that after considering
the legislation
and claims presented in the request, a delegate had determined that the
applicant’s circumstances did not satisfy
sub-reg.2.05(4) of the Migration
Regulations and therefore had not waived the 8503 condition under s.41(2A) of
the Migration Act 1958 (Cth). The letter stated that it was not accepted
that since the applicant was granted the visa that was subject to the 8503
condition
circumstances had developed over which he had no control that resulted
in a major change in circumstances that were both compelling
and compassionate.
- The
court book also contains a copy of a document headed “Minute:
Submission to Delegate” in relation to the applicant’s second
request for waiver of condition 8503 in which an officer outlined the request,
the material provided as at the date of the submission, addressed the grounds of
waiver and recommended that the condition not be
waived. While the writer of
the Minute was of the view that the circumstances were compassionate, it was
suggested that the circumstances,
while a major change, were not outside the
applicant’s control as he had made a conscious decision to remain in
Australia,
apply for protection and then marry his wife and that these
circumstances were not compelling. It was noted that the applicant had
been
counselled as to the imposition of the 8503 condition on his visa.
- The
Minute continued:
- Furthermore,
Mr [SZOYX] claims his Australian Citizen wife, who suffers from
Type 1 Diabetes, will suffer emotionally if he were to depart Australia.
- Ms [SZOYX]
has three siblings living in Australia and she is currently working. Medical
evidence provided confirms Ms [SZOYX]’s long term medical
condition and she is on Insulin injections. It can be reasonably assumed that
Ms [SZOYX] knows where to find relevant medical resource or
assistance to warrant her medical condition if she was stressful (sic) by
her husband’s departure.
- Mr [SZOYX]’s
claims do not constitute circumstances of a compelling nature.
- While
the Minute did accept that some compassionate circumstances existed, the
recommendation was that as the circumstances were not
of the kind set out in
sub-reg.2.05(4) of the Migration Regulations condition 8503 should not be
waived.
- At
the end of that document after the name and signature of the officer, under the
heading “Delegate’s Decision” there is provision for an
indication “waived/not waived”. The word
“waived” has been struck out. The document bears a
signature, name and identifying details of a delegate of the Minister and is
dated
2 June 2010. The applicant was advised of the delegate’s
decision by letter of that date, apparently posted on 3 June 2010.
- Having
regard to the grounds relied on in these proceedings, it is relevant to note
that also contained in the material before the
court is a copy of a letter dated
4 June 2010 bearing facsimile details dated 4 June 2010 and stamped
received by the Department
4 June 2010. This date was after the date of
the decision. This letter was from Mr Laba Sarkis to the case officer. It
submitted
what was described as a “detailed medical certificate in
support of the application for 8503 waiver” and asked the officer to
take it into account.
- Accompanying
the letter of 4 June 2010 is a copy of a letter addressed to the Department and
also “To Whom it May Concern” from Dr Marwan Obaid dated 26
May 2010. Dr Obaid referred to the medical condition of the
applicant’s wife, the impact
on her of the possible forced departure from
Australia of her husband for immigration reasons and the assistance it would be
if the
applicant were able to remain in Australia.
- On
2 July 2010 the applicant filed an application in this court seeking that
the decision of the delegate of the Minister made on
2 June 2010
“be quashed” and that the Department “reconsider the
request to waive the 8503 condition”. The grounds in the application
are that the delegate “ignored” the “medical
reference” of Dr Marwan Obaid dated 26 May 2010 and that he
had “erred in interpreting compelling and compassionate
circumstances”. No written submissions were filed by or for the
applicant, but he made oral submissions today.
- Section 41(1)
of the Migration Act provides that regulations may provide that visas or
certain visas are subject to specified conditions, including a condition that
the holder “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” (see s.41(2)).
Condition 8503 is such a condition.
- However,
pursuant to s.41(2A) of the Migration Act, the Minister may in prescribed
circumstances, by writing, waive a condition such as condition 8503.
- Relevantly,
reg.2.05 of the Migration Regulations deals with conditions applicable to visas.
Sub-regulation 2.05(4) specifies that the circumstances in which the Minister
may waive
a condition of the kind in issue in this case, are that
“since the person was granted the visa that was subject to the
condition, compelling and compassionate circumstances have developed...over
which the person had no control; and...that resulted in a major change to the
person’s circumstances”.
- I
note also, (although nothing was made of it in the present case), that if the
Minister has previously refused to waive a condition,
the Minister must be
satisfied that the circumstances that are relied on are “substantially
different from those considered previously” (reg.2.05(4)(b)).
- As
to the claim that the delegate failed to have regard to relevant considerations
(in particular the letter from Dr Obaid dated 26
May 2010), there does
not appear to be any requirement in the Migration Act that written reasons for a
decision not to waive a visa condition be given, nor that any such reasons set
out all the material to
which regard has been had (see Salazar v
Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26]
per Allsop J). The applicant did not assert that there was any such
requirement. Moreover, there is no general obligation on a
person exercising
administrative power to provide written reasons for his or her decision (see
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs
(2004) 212 ALR 581; [2004] FCA 1500).
- In
this instance the letter advising the applicant of the decision merely set out
that it was not accepted that he met the requirements
of subregulation 2.05(4)
of the Migration Regulations, without specifying the precise manner in which he
failed to meet those requirements.
- The
internal Departmental Minute which was signed by the delegate and marked
“not waived” did set out the material before the Department
at the time of the delegate’s decision on 2 June 2010 and contains an
analysis of the applicant’s request for a waiver. Consistent with the
approach taken by Smith FM in Hager v Minister for Immigration &
Anor [2010] FMCA 942 as to the status of such a Minute, the Minister
submitted that although it could be inferred from the signature at the bottom of
the Minute that its contents were considered by the delegate, that document
should not be read as constituting the reasons for the
delegate’s
decision. In the absence of reference to any authorities to the contrary I
consider it appropriate to adopt the
approach taken by Smith FM to the
relevance of such a Minute (and see SZGBR v Minister for Immigration
[2005] FMCA 824).
- In
any event, even if the recommendation and assessment of the officer who prepared
the Minute was adopted by the delegate or if such
a Minute is to be taken as
indicative of the delegate’s decision-making process (see Salazar
at [17]), it has not been established that the delegate erred in failing to take
into account the letter by Dr Obaid dated 26 May
2010.
- Critically,
and as did not seem to be entirely clear to the applicant, the evidence before
the court as to how and when this document
was provided to the Department is
that it was attached to a letter dated 4 June 2010 from Mr Laba Sarkis to
the Department which
was marked received by the Department on that day.
4 June 2010 was after the date of the decision of the delegate and indeed
also
after the date on which the letter informing the applicant of the decision
was posted. In these circumstances the applicant’s
submissions about when
he received the letter from the Department of 3 June 2010 are not relevant
to the issue before the court.
- There
is no evidence that the letter from Dr Obaid dated 26 May 2010 was before
the delegate prior to the time at which the delegate
made the decision not to
waive condition 8503. Hence the delegate cannot be said to have failed to take
such letter into account
in a manner constituting jurisdictional error.
- Whether
or not a delegate has power to revisit a decision in circumstances of this
nature (see generally Sloane v The Minister for Immigration, Local Government
and Ethnic Affairs (1992) 37 FCR 429; [1992] FCA 414), it has not been
established that there is any obligation on a delegate to do so where the
decision has been lawfully made, as in
this case (see Sloane at 443 per
French J).
- However,
as conceded by the solicitor for the Minister, there is nothing in the Migration
Act to prevent the applicant from lodging a further waiver request form with new
and updated evidence. This could have been done had
the letter from
Dr Obaid been regarded as substantially different circumstances (see
reg.2.05(4)(b)). Indeed the applicant told the
court that he has now made a
further waiver request, which appears to be based on his wife’s pregnancy.
It is not the subject
of these proceedings.
- Insofar
as the letter from Mr Laba Sarkis dated 16 May 2010 referred to the
possibility of further medical evidence, that letter did
not suggest that
further medical evidence would be provided. It did not ask the delegate to
delay making a decision until further
evidence was provided, but merely stated
that further medical information from Dr Obaid would be provided on the request
of the case
officer. Such a general statement is not such as to establish that
the delegate failed to make an obvious inquiry about a critical
fact the
existence of which was easily ascertained as considered in Minister for
Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
- Moreover,
the form used by the applicant to seek a waiver advised him that if he had
documentary evidence to support his claims, it
should be attached to the form.
Hence the applicant was made aware of the need to provide evidence in support of
his application
at the time of his waiver application. It was for the applicant
to provide such evidence. His failure to do so in a timely manner
(or the
failure of his agent) does not reveal any error on the part of the
decision-maker.
- In
any event, as submitted for the respondent, the report of Dr Obaid dated
26 May 2010 does not establish a new claim or constitute
a relevant
consideration that the delegate would have been required to take into account.
Rather, it corroborated and elaborated
on the applicant’s claim that he
was required to look after his wife as she was suffering from diabetes and would
be affected
by his possible departure from Australia. The distinction between
evidence and a new claim or an integer of a claim must be borne
in mind. A
failure to consider evidence does not of itself constitute jurisdictional error
(Minister of Immigration and Citizenship v SZJSS (2010) 85 ALJR 306;
[2010] HCA 48 at [35]).
- No
jurisdictional error is established on the basis contended for in ground one or
on the basis of any suggestion that the delegate
failed to make an inquiry in a
manner constituting jurisdictional error.
- The
second ground in the application is that the delegate erred in interpreting
“compelling and compassionate circumstances”. There are no
particulars to this ground in the application. In oral submissions the applicant
contended that the Department
omitted to take into account his wife’s
situation and in that way failed to take into account changes that had occurred
after
he obtained the visa in Beirut on which condition 8503 was imposed (in
particular the deterioration in her health).
- Insofar
as this ground overlaps with ground one and involves a contention that
there was a failure to take into account relevant considerations,
it is not made
out on the material before the court. Such matters were addressed in the Minute
on which the delegate indicated that
the condition was not waived. Further, it
has not been established that the delegate failed to understand or apply the
concept of
“compelling and compassionate” circumstances in a
manner constituting jurisdictional error.
- The
contention that the delegate erred in interpreting “compelling and
compassionate circumstances” appears to be made on the assumption that
the minute formed part of the delegate’s reasons. Even if that is so, or
if the Minute is, (as Allsop J suggested in Salazar), part of the
decision-making process, there is nothing in such material to indicate or
establish that the delegate erred in interpreting
“compelling and
compassionate circumstances”.
- The
Minute referred to Departmental policy as to what would be a
“compelling” circumstance. Consistent with the approach in
Gabay v Minister for Immigration [2005] FMCA 485, it expressed the view
that the applicant’s decision to remain in Australia and marry an
Australian citizen was not beyond
his control and was not of itself such as to
constitute compassionate or compelling circumstances.
- As
Smith FM indicated in SZGBR, what constitutes compelling and
compassionate circumstances is essentially a factual issue for the delegate.
Such words “confer on a decision maker a broad latitude of
understanding and assessment of how he identifies and weighs relevant
circumstances” (SZGBR at [19] and see Nguyen v Minister for
Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360 and
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs
and Another (2005) 141 FCR 285; [2005] FCAFC 77). The Minute outlined the
matters relied on by the applicant (including his wife’s medical condition
and her need for insulin
injections) and addressed the reasons the circumstances
were not seen as within reg.2.05(4). The fact that such circumstances were
not
said to be compelling does not of itself demonstrate that the delegate erred in
interpreting or applying the concept “compelling
circumstances”.
- Moreover
there is no material to establish that the delegate erred in interpreting the
concept of “compelling and compassionate circumstances”.
- In
this case it appears from the Minute that the difficulty the applicant faced was
that his relationship with and marriage to his
wife was not seen as beyond his
control and there was no evidence to establish to the satisfaction of the
delegate that she was dependent
on him for the provision of medical care or that
the circumstances were otherwise compelling. For the benefit of the applicant, I
note again that the court cannot review the merits of the delegate’s
decision. It is not for this court to decide whether or
not there should be a
waiver of the visa condition. Indeed there would be no error of law in the
delegate making a mere wrong finding
of fact, insofar as that is the basis for
ground two.
- The
Minute accepted there were compassionate circumstances and no issue was taken
with the delegate’s consideration of whether
the circumstances were beyond
the applicant’s control (see Kumar v Minister for Immigration &
Multicultural Affairs [2000] FCA 793 at [20]). In any event, a finding as
to whether or not the applicant had control over circumstances that had
developed would be a matter
for the delegate and would not be a matter that
would properly be the subject of review by the court.
- This
ground is not made out.
- As
no jurisdictional error has been established, the application must be
dismissed.
RECORDED : NOT TRANSCRIBED
- The
applicant has been unsuccessful and there is nothing in the circumstances of
this case to warrant a departure from the normal
principle that the unsuccessful
applicant should meet the costs of the respondent. It is perhaps unfortunate
that the applicant
saw it as necessary to come to the court in the circumstances
of this case where as an alternative he might simply have gone back
to the
Minister seeking a further waiver (given that he asserts that circumstances have
further changed since the time of the last
waiver decision), but he has done so,
and has been unsuccessful.
- The
amount sought is significantly less than the amount provided for in the Federal
Magistrates Court Rules. It is appropriate in
light of the nature of this and
other similar matters.
I certify that the preceding forty-five
(45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 2 March 2011
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