Khater & Anor v Minister for Immigration [2011] FMCA 52 (28 February 2011)

Federal Magistrates Court of Australia

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Khater & Anor v Minister for Immigration [2011] FMCA 52 (28 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHATER & ANOR v MINISTER FOR IMMIGRATION

[2011] FMCA 52

MIGRATION – Review of decision of delegate not to remove condition on the applicants’ visas – compassionate but not compelling circumstances – whether the delegate’s decisions were unreasonable considered. WORDS AND PHRASES – Compelling circumstances.

Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth)

Anupama v Minister for Immigration & Anor [2009] FMCA 817 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 Minister for Immigration v SZMDS [2010] HCA 16 Salazar v Minister for Immigration [2001] FCA 899 SZGBR v Minister for Immigration [2005] FMCA 824

First Applicant:

OJENY KHATER

Second Applicant:

RENEE KASSAB

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2450 of 2010

Judgment of:

Driver FM

Hearing date:

3 February 2011

Delivered at:

Sydney

Delivered on:

28 February 2011

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondent:

Mr H P T Bevan

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2450 of 2010

OJENY KHATER

First Applicant

RENEE KASSAB
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review decisions of a delegate of the Minister not to waive a condition attached to the applicant’s visas.
2. The applicants are mother and daughter. They are citizens of Lebanon who arrived most recently in Australia on 8 March 2010 on tourist (class TR, subclass 676) visas (court book “CB” 5 and CB 58).
3. Each of their visas was subject to condition 8503. That condition provides that the visa “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”.
4. The applicants have applied for that condition to be waived on two occasions.
5. Applications were first made on 23 March 2010 (CB 1-3 and CB 56-58). The second applicant, who claimed to be dependent upon her mother, relied upon the first applicant’s claims. A delegate of the Minister for Immigration and Citizenship (the Minister) refused these applications on 10 June 2010 (CB 33) and 18 June 2010 (CB 61).
6. Applications were again made on 17 September 2010 (CB 39-45 and CB 66-67). Again, the second applicant relied upon her mother’s claims. A delegate of the Minister refused these applications on 25 October 2010 (CB 50 and CB 69).
7. By application filed 11 November 2010, the applicants have applied to the Court for relief in respect of the delegate’s most recent decisions.

The judicial review application

8. The applicants rely upon the judicial review application filed on 11 November 2010[1]. That application contains the following grounds of review:
   • 1. The delegate misapplied the law and ignored the changes of circumstances after the issue of the visa ie the death of my brother.
   • 2. The delegate ignored the deterioration of health and compassionate and compelling circumstances.

The evidence and submissions

9. The application is supported by two affidavits of the first applicant. I received the first affidavit made on 6 November 2010. I did not receive the second affidavit made on 27 January 2011 which introduced notes prepared by a non party and making hearsay allegations concerning a conversation with an officer of the Minister’s Department. I received as evidence the court book filed on 4 January 2011 and the affidavit of Gregory Joseph Johnson made on 13 January 2011 which adds a missing page from the court book.
10. The applicants were assisted by Mr Toufic Laba-Sarkis who appeared as a McKenzie friend. Essentially, they contend that the circumstances of the applicants are so unfortunate that it was unreasonable for the delegate not to accept those circumstances as “compassionate and compelling”, which would have led to the removal of the condition on their visas.
11. The Minister contends that the delegate’s decisions were not unreasonable in any legal sense and that the decisions were free from jurisdictional error.

Reasoning

12. I accept the Minister’s submissions concerning the relevant statutory framework.
13. By s.41(2A) of the Migration Act 1958 (Cth), the Minister may waive a condition of a visa in “prescribed circumstances”.
14. Regulation 2.05(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes the circumstances that must exist to enliven the discretion under s.41(2A). The circumstances are:
    1. 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;
    2. 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;
    100. the request must be in writing.

The delegate’s decisions

15. Each of the delegates’ decisions is accompanied by a departmental minute signed by the delegate.
16. Although there is no obligation upon the delegate to provide reasons for his or her decision not to waive the condition in question,[2] regard may be had to the departmental minutes in determining whether the delegate fell into error. Nevertheless, the minutes are not to be scrutinised as if they were a statement of reasons prepared pursuant to an obligation to do so.[3]
17. In support of her application for a waiver of condition 8503, the first applicant relied upon the death of her brother (within months of the death of two other siblings) and the deterioration in her health since her arrival in Australia (see CB 40).
18. The departmental minute with respect to the first applicant is at CB 51-55. Relevantly, the minute:
    1. notes that the claims made in the second waiver request are the same as those previously put forward and that no further evidence in support was put forward (CB 53.6-54.1);[4]
    2. accepted that the circumstances occurred since the grant of her visa, resulted in a major change to her circumstances and were outside her control (CB 54.2-54.5);
    100. did not consider the circumstances to be “compelling” because:
         1. the first applicant was fully aware of her visa validity period and the imposition of condition 8503 prior to her arrival in Australia but nevertheless has applied, or attempted to apply, for other visas;
         2. the medical evidence provided did not indicate that the first applicant’s condition prevented her from travelling permanently; and
         3. there was no evidence to show that the first applicant’s family based in Australia cannot continue to support their mother if she were to return to Lebanon (CB 54.5-55.3);
    4. considered the circumstances to be “compassionate” (CB 55.4-5);
    5. recommended that condition 8503 not be waived (CB 55.6).
19. The departmental minute with respect to the second applicant is at CB 70-73. The third page of the minute is at Annexure A to the affidavit of Gregory Joseph Johnson affirmed 13 January 2011. I inserted that page into the court book as page 71A.
20. Relevantly, the minute:
    1. notes that the claims made in the second waiver request are the same as those previously put forward and that no further evidence in support was put forward (CB 71A.4-6);[5]
    2. accepted that the circumstances occurred since the grant of her visa and were outside her control but did not accept that they resulted in a major change to her circumstances (as opposed to those of her mother) (CB 71A.6-10);
    100. did not consider the circumstances to be “compelling” because:
         1. the second applicant was fully aware of her visa validity period and the imposition of condition 8503 prior to her arrival in Australia but nevertheless has applied, or attempted to apply, for other visas;
         2. there was no medical evidence to show that the second applicant was completely dependent upon her mother and cannot return to Beirut (CB 72.1-5);
    4. considered the circumstances to be “compassionate” (CB 72.6);
    5. recommended that condition 8503 not be waived (CB 73.1-2).
21. There is no doubt that the circumstances advanced by the applicants in support of their applications for waiver of the condition on their visas were compassionate. That much was accepted by the delegate. There is a question whether those circumstances were “compelling”. That is not a defined term for the purposes of the Regulations and it should be given its ordinary or natural meaning.
22. I dealt with the meaning of the expression “compelling circumstances” in Anupama v Minister for Immigration & Anor [2009] FMCA 817 at [31] where I said:
    • The Tribunal was apparently correct in stating that there was no direct guidance by way of judicial interpretation of what might constitute compelling or compassionate circumstances in the context of PIC 4013. However, there have been relevant judicial interpretations of those terms in other contexts that the Tribunal might properly have had regard to. For example, in SZGBR v Minister for Immigration [2005] FMCA 824 at [19]- [20] Smith FM said:
      • Authorities on the meaning of tests of “compelling and compassionate circumstances” in other regulations have shown that these words confer on a decision maker a broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances. For example, in Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 360; (2001) 109 FCR 169 at 12, Marshall J refers to authority that:
        • It should also be borne in mind that the concept of a compelling and compassionate circumstance...is one that relates to "an event or events that are far-reaching and most heavily persuasive".
      • In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 a Full Court considered the meaning of an exemption or waiver power in relation to a visa condition which included a test of “compelling circumstances”. Their Honours said:
        • [21] In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. ...
        • [24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in (the relevant regulation) should be waived.
23. The applicants contend that the circumstances they advanced were compelling and that the failure of the delegate to accept the circumstances as compelling was unreasonable in a sense indicative of jurisdictional error. It is apparent from the departmental minutes in evidence that the delegate did not fail to have regard to the circumstances advanced by the applicants. The delegate did not “ignore” the circumstances advanced as alleged in the application before the Court. The test of whether the delegate’s decision not to accept those circumstances as compelling was so unreasonable as to establish jurisdictional error is a high one. In Minister for Immigration v SZMDS [2010] HCA 16 at [130]- [131] Crennan and Bell JJ said:
    • In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
    • What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
24. Their Honours’ reasoning was implicitly adopted by the High Court in a unanimous judgment in Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 where the Court said at [23] and [34]-[37]:
    • 23. General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
      • "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."
    • 34. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
    • 35. Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
    • 36. The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
    • 37. Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. (footnotes omitted)
25. Reasonable minds may differ on the question of whether the applicants’ circumstances as put before the delegate were compelling. On the one hand it would seem an extremely harsh outcome to require a frail aged woman and her dependent and disabled daughter to return to a country in which they no longer have close living relatives and where the availability of affordable institutional support may be doubtful. Plainly, they would be far better off remaining in Australia. On the other hand, what the applicants are seeking is permanent residence for the purpose of family reunion. Family reunion visas of various classes are a scarce commodity. Applicants overseas have to wait a long time (sometimes around a decade) for a visa to come to Australia. It would seem unreasonable to the many applicants waiting overseas to allow applicants to “jump the queue” by coming to Australia on a temporary visa and then obtain a permanent residence visa while here. It is presumably to protect the integrity of that migration process that the visa condition was imposed. In view of the need to maintain overall fairness and integrity of the process, and having regard to the facts that the applicants were aware of the limitation on their visas when they came here and apparently remained fit to travel, it was not unreasonable for the delegate to decide that the condition on the visas not be waived notwithstanding the compassionate and very unfortunate circumstances of the applicants.
26. I conclude that the decisions of the delegate are free from jurisdictional error. They are, therefore, privative clause decisions and the application must be dismissed. I will so order.
27. I will hear the parties as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 28 February 2011

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[1] Formally, the application seeks only an order in the nature of a writ of certiorari quashing the delegate’s decisions. As such an order is properly ancillary under s 75(v) of the Constitution, the Court dealt with the application as also seeking an order in the nature of mandamus remitting the application to the Minister for further consideration according to law.
[2] Salazar v Minister for Immigration [2001] FCA 899 at [26] per Allsop J.
[3] See SZGBR v Minister for Immigration [2005] FMCA 824 at [13]- [14] per Smith FM and the authorities there cited.
[4] The answer to the question posed in par (a) on CB 53 is recorded as “Yes”. It is respectfully submitted that when regard is had to the remainder of the comments in the minute, the answer should be understood as “No”.
[5] The answer to the question posed in par (a) on CB 71A is similarly recorded as “Yes”. As for the first applicant, it is respectfully submitted that when regard is had to the remainder of the comments in the minute, the answer should be understood as “No”.