FEDERAL COURT OF AUSTRALIA

CDV16 v Minister for Immigration and Border Protection [2019] FCA 371

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J

1    This appeal is from a decision dated 24 August 2018 by the Federal Circuit Court of Australia (FCCA) which is reported as CDV16 v Minister for Immigration and Border Protection [2018] FCCA 2526. The FCCA dismissed the appellant’s application for judicial review of a decision dated 17 July 2016 of the Minister’s delegate which refused to waive visa condition 8503 (no further stay condition) which had been imposed upon the appellant’s visitor visa.

Summary of background facts

2    The appellant, who is a citizen of Egypt, arrived in Australia in April 2013 holding a visitor visa to which the no further stay condition attached. The effect of that condition is that the holder of a visa which is subject to the condition is not entitled to be granted a substantive visa, other than a protection visa, whilst remaining in Australia. The Minister has a discretion, however, under s 41(2A) of the Migration Act 1958 (Cth) (Act) to waive such a condition in the circumstances specified in reg 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) to waive such a condition in specified circumstances. Relevantly, those circumstances include where compelling and compassionate circumstances have developed since the person was granted the visa over which the person had no control and which circumstances resulted in a major change to the person’s circumstances. Moreover, under reg 2.05(4)(b), if the Minister has previously refused to waive the no further stay condition, the Minister must also be satisfied that the circumstances are substantially different from those previously considered.

3    The appellant applied unsuccessfully for a protection visa, which primary decision was affirmed by the then Refugee Review Tribunal (Tribunal).

4    The appellant made a written request dated 19 March 2015 for the Minister to waive the no further stay condition. The stated basis for the application was that, on 9 August 2014, he had married a woman (who is an Australian citizen) with whom he had had a relationship since 3 September 2013. He said that he wished to lodge a partner visa application and said that his wife had multiple medical conditions for which she needed his support as carer. He provided a letter dated 18 March 2015 from his wife’s treating doctor. The doctor said that the wife had been involved in a motor vehicle accident and was suffering from seven specified medical conditions. The doctor gave a diagnosis that the wife was suffering from post-traumatic headaches, dizziness, nervous shock and had injuries to her spine and shoulders. The doctor said that the wife needed help with home chores, shopping and transport to medical care. The doctor said that he believed that the wife required a carer and that this role would be best performed by her husband. He also asserted that there was a risk of harm if he returned to Egypt but he provided no further material in support of this particular claim.

5    The Minister’s delegate decided on 26 March 2015 not to waive the no further stay condition. The delegate acknowledged the doctor’s letter dated 18 March 2015 and stated that, while it conveyed the doctor’s opinion that the wife required a carer and that the role would be best performed by the husband, “no medical evidence has been tendered that demonstrates that [the wife] is incapacitated to the degree that she is unable to care for herself and consequently I am not satisfied that you are compelled to remain in Australia to provide care”. The appellant sought judicial review of that decision.

6    On 30 March 2015, the appellant, through a migration agent, lodged a second application for the no further stay condition to be waived. An accompanying letter from the migration agent claimed that the appellant’s wife had various medical conditions and that the appellant provided her with care and various forms of support, including financial support, to her and her 17 year old son. The agent stated that the appellant’s financial support to his wife and children was important because her Centrelink payments were inadequate to support herself and her dependent son and if the husband was sent overseas his financial support would disappear because he could not generate sufficient funds while overseas to help his wife and her son.

7    The 30 March 2015 application repeated the claim that the appellant feared harm if he returned to Egypt. On this occasion, however, documentation was provided, which included an extract from the website of the Department of Foreign Affairs and Trade (DFAT) regarding conditions in Egypt as at 6 March 2015. The agent stated that this material showed that Egypt was unsafe for both the husband and any members of his family. Other material which accompanied the second waiver application included a copy of the same doctor’s letter dated 18 March 2015 which had accompanied the first unsuccessful request.

8    On 10 April 2015, a different ministerial delegate refused the second waiver request on the basis that the appellant’s circumstances were not substantially different from the first request. The delegate acknowledged the material provided to the Department in support of the second waiver request, including the agent’s submissions, the doctor’s letter dated 18 March 2015, and the extracts from the DFAT website. The delegate explained in the following single sentence from his three page letter why he rejected the second waiver request:

While I acknowledge your concerns which are outlined in your submission, I have considered the circumstances of your second request under paragraph 2.05(4)(b) of the Regulations and I am not satisfied that they are substantially different.

9    Subsequently, on 27 April 2016, orders by consent were made by the FCCA in respect of the first waiver application. The delegate’s decision dated 26 March 2015 was quashed and the application was remitted for reconsideration according to law. Subsequently, by letters dated 18 May 2016 and 23 May 2016, the appellant was invited by the Department to provide any further information in respect of the reconsideration but it appears that he did not do so.

10    By letter dated 14 June 2016, the Department invited the appellant to comment on adverse information which included information to the effect that the appellant was no longer in a relationship with his wife and that they had not resided together since October 2015. The appellant responded by letter, received by the Department on 11 July 2019, and stated that the information was incorrect and that he and his wife had officially separated on 29 May 2016. Although the respondent did not dispute that the appellant responded in this manner, a copy of his letter was not in evidence either below or in the appeal. Apparently, a copy could not be located in the Department’s records.

11    On 27 July 2016, the Minister’s delegate rejected the appellant’s waiver request. There is some ambiguity in the decision record relating to the delegate’s decision dated 27 July 2016 as to whether the delegate considered himself to be making a decision in respect of either the first or second waiver request. Under the heading “Reasons” the delegate referred to the first request and its refusal on 26 May 2013. He then noted that a second waiver request was lodged on 30 March 2015 and that this request was refused on 10 April 2015. The delegate then said:

Following a Judicial Review of the decision records, the Department has been directed to reconsider your request.

12    As noted above, the FCCA’s orders dated 27 April 2016 related specifically to the primary decision dated 26 March 2015, i.e. the decision in respect of the first waiver request.

13    It is relevant to also note that the delegate’s letter dated 18 May 2016, in which the appellant was invited to provide any further evidence, makes express reference to the delegate having begun “reconsidering your request for waiver of a no further stay condition which was lodged on 30 March 2015”. This is a plain reference to the second waiver request. The delegate appears to have misapprehended that the obligation of reconsideration related to the second waiver request, and not the first. The same misapprehension is evident in another letter dated 23 May 2016, which the Department sent the appellant and which was in substantially identical terms to the 18 May 2016 letter. It invited the appellant to provide any further information in support of his request for waiver lodged on 30 March 2015. It is unclear why the Department sent two virtually identically worded letters but both strongly suggest that the delegate understood that the task of reconsideration related to the second waiver request and not the first.

14    Any doubt on this matter is removed when regard is had to the Department’s internal identification of the waiver request. The Department gave the first waiver request the identification number 630578641. The second waiver request, as lodged on 30 March 2015, was given the identification number 320579852. This is the identification number which appears at the top of the decision record dated 27 July 2016.

15    It is well to set out all of the reasons given by the Delegate for not waiving condition 8503:

Reasons

Departmental systems confirm that you lodged a request to waive the 8503 No Further Stay condition on 19/03/2015. This request was refused on 26/03/2015. On 30/03/2015 a second waiver request was lodged. This request was refused on 10/04/2015. Following a Judicial Review of the decision records the Department has been directed to reconsider your request.

Regulation 2.05(4) requires that since the grant of your visa, compelling and compassionate circumstances have developed over which you had no control that resulted in a major change to your circumstances.

In assessing your claims I must consider whether your circumstances are compassionate and compelling. The term 'compelling' (which is not defined in the migration legislation) is therefore given its ordinary meaning. 'Compelling' means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.

'Compassionate' circumstances (which are also not defined in the legislation and must be given their ordinary meaning) involve the concept of 'compassion' which is a feeling of sorrow or pity for the sufferings or misfortune of others, or sympathy. Compassionate circumstances give rise to these feelings.

I acknowledge claims that your wife suffers from medical conditions and that you are her carer in all aspects including being a father figure to her three children. While considering your claims I have also taken into account information received by the Department on 23/05/2016 which was adverse to the information provided in your request. On 14/06/2016 you were provided with natural justice and were invited to provide comment in regard to this information.

Specifically, the information we received on 23/05/2016 stated that you and your wife are no longer in a relationship and have not been residing together since October 2015. On 11/07/2016 we received your correspondence in relation to the adverse information received. Your letter claims that the information is incorrect in that you and your wife officially separated on 29/05/2016.

The basis for your waiver request is that you must remain in Australia to act as your wife's carer and I acknowledge that you and your wife were residing together as a married couple previously. However, despite your disagreement regarding the date of separation, the fact remains by your own admission that the relationship has officially ceased. Therefore, I give no weight to your claims that you reside with your wife and act as her carer as well as acting as a father figure to her children.

I have also considered your claim that there is a risk of harm in returning to Egypt. However, the information you have provided is general and does not demonstrate that you will be in any specific danger if you were to depart Australia and return to Egypt. The information presented does not lead me to consider that your circumstances are forceful or driving, especially to a course of action to waive the no further stay condition.

After careful consideration of the information you have provided to support your claims, I do not find that your circumstances are sufficiently forceful to waive the condition and therefore I do not find your circumstances to be compelling. I have assessed your circumstances against Reg 2.05(4) and do not accept that your circumstances meet the requirements to waive condition 8503. Therefore, as you have not met the requirements of the provision under regulation 2.05(4) of the Regulations, I have not waived the 8503 condition under subsection 41(2A) of the Act.

Decision

As I find that the circumstances in subregulation 2.05(4) and 2.05(4AA) are not met by the client, I therefore refuse the request by the client for a waiver of condition 8503.

16    The delegate’s decision dated 27 July 2016 is the decision which is the subject of the second judicial review application in the FCCA and which gives rise to this appeal. The appellant did not have legal representation in the FCCA. The FCCA noted at [21] that the appellant had confirmed both in his oral evidence and evidence under cross-examination that he and his wife had separated in May 2016. The appellant stated that his written response also conveyed information as to named friends who could give supporting evidence in relation to his relationship with his wife. The primary judge also made reference to a statement which was attached to the appellant’s affidavit dated 13 June 2017 in the FCCA.

17    It is desirable to set out [22]-[28] of the primary judge’s reasons for judgment concerning the missing letter and the appellant’s evidence before the FCCA relating to its contents:

22.    In that document, he explained that, soon after he was informed of the April 2016 remittal by this court (which he recalled was sometime in May 2016), his wife read the letter and said they needed to see a lawyer. The lawyer read the letter to them and informed him he had won the case. His wife visited her doctor. She then told the Applicant she no longer wanted to live with him and that she wanted a divorce from him. She “kicked [him] out” of the house. He claimed that friends tried to intervene get them back together. He also suggested that his wife had come to the conclusion that she would only accept getting back with him for him to get residency in Australia for the price of AU$50,000. He refused to pay this amount, claiming that their marriage was only for the sake of love.

23.    He also stated in the statement attached to his affidavit that a week after receiving the letter stating he had won the case, his wife had approached the Department of Immigration and “filed a report against” him, telling Immigration that he had left the house 10 months earlier and that she did not know anything about him. He claimed she had fabricated these claims so that he would get kicked out of Australia. He explained that he had been still residing with his wife in the house “much longer” (that is, after October 2015) and that the friends for whom he had provided contact details could attest to this. However the Applicant confirmed that he was “kicked out” of the house in May 2016.

24.    In his statement and his oral evidence, the Applicant also explained that subsequently his wife had successfully applied for a divorce. He complained of the effect of the divorce on him. In oral submissions, the Applicant also complained of the effect of the Department’s actions on his relationship with his former wife.

25.    Although it is extremely unfortunate that the Department is apparently unable to locate the Applicant’s response received by the Department on 11 July 2016, he has been given, and has taken, the opportunity to explain precisely what he provided to the Department in response to the adverse information. The Applicant’s evidence in this respect does not indicate or raise any concern that the delegate overlooked any fact or evidence.

26.    It is the case that in the reasons the delegate did not refer in any detail to the content of the letter received by the Department on 11 July 2016 beyond the reference to the fact of separation and the Applicant’s claim that this occurred on 29 May 2016 (rather than in October 2015). However this does not establish that the delegate overlooked relevant evidence or claims in circumstances where, as the Applicant has confirmed today, in his letter he told the delegate that he and his wife separated in May 2016 and his evidence was that his friends could support his claims that he and his wife were together until May 2016. What was relevant for the purposes of the decision and was taken into account by the delegate, was the Applicant’s concession that the relationship had broken down, in the sense that the parties had separated. That was so, notwithstanding that the Department had earlier received different advice as to the date of separation. In these circumstances, it was not necessary for the delegate to refer further to any additional information in the Applicant’s response.

27.    It is not disputed that the parties had separated prior to the delegate’s decision of 27 July 2016. There is no suggestion that there was any other relevant consideration or evidence included in the Applicant’s response as described in his oral evidence.

28.    Hence, on the material before the court and despite the unfortunate absence from the courtbook of a copy of the Applicant’s response to the adverse information, it has not been established that the delegate fell into jurisdictional error in relation to this letter or the information therein.

18    The primary judge explained why the three grounds of judicial review were rejected. The first ground was that the delegate had no right to refuse the second waiver request because the delegate had ignored the medical certificate which was provided in support of the request. The medical certificate was a doctor’s letter dated 18 March 2015 and, as mentioned above, had also been provided in support of the first waiver request. The primary judge found that, in circumstances where the appellant acknowledged that the relationship with his wife had ceased, it was not necessary for the delegate to make express reference to the medical report because it was not material to the decision.

19    Ground 2 claimed that the Department’s “negligence” had caused harm and trauma to both the appellant and his wife with particular reference to the suggestion that the couple had separated in October 2015, which was not raised by the Department until June 2016. The primary judge concluded that the factual basis for that ground had not been made out and, in any event, the ground of appeal was not indicative of jurisdictional error.

20    The third ground of judicial review was that the delegate had failed to consider the risk of harm for the appellant in returning to Egypt contrary to the information on the DFAT website. The primary judge found that it was reasonably open to the delegate to regard that information as being general information and as not demonstrating that the appellant personally was in any specific danger if he were to return to Egypt.

21    For these reasons, the judicial review application was dismissed.

Notice of appeal

22    The appellant represented himself in the appeal and was assisted by an interpreter. His sole ground of appeal is as follows:

I appeared before Her Honour Judge Barnes on 24 August 2018. I collected the Order from the Federal Court yet there is no judgment yet. I ask the honourable Court to accept that the Order of Her Honour is affected by error of law because Her Honour relied on the First Respondent’s submission and failed to accept that I have an arguable case.

23    During the course of the hearing, the Court raised with the Minister’s representative whether the delegate had, in accordance with the FCCA’s orders, in fact reconsidered the correct request for waiver and, if not, whether this involved jurisdictional error and was material. The parties were given an opportunity to file supplementary submissions in relation to the issue and the Court said that, depending upon those submissions and the appellant’s response, there may be a need for the appellant to file an amended notice of appeal and obtain the Court’s leave in respect of a matter which had not been run below.

The parties’ submissions summarised

24    The appellant failed to provide a written outline of his submissions before the hearing. At the hearing, after the Court explained the nature of the appeal and the need for the appellant to identify an appealable error in the FCCA’s orders or reasons for judgment, the appellant made the following submissions. First, he said that the primary judge erred in not finding that the delegate failed to consider the medical report dated 18 May 2015 from his wife’s treating doctor (see [4] above). Secondly, he submitted that the primary judge erred in not finding that the delegate failed to consider the DFAT website material relating to conditions in Egypt (see [7] above).

25    With the exception of the Minister’s supplementary submissions on the issue described in [23] above, it is unnecessary to summarise the Minister’s written outline of submissions, because they are substantially reflected in my reasons below for dismissing the appeal.

26    On the issue raised by the Court as to whether the delegate had complied with the orders of the FCCA that the first waiver request be reconsidered, the Minister’s supplementary submissions may be summarised as follows. First, the Minister submitted that, on a fair reading of the Department’s records, the delegate purported to, and did in both formality and substance, deal with both waiver requests, thereby complying with the orders made by the FCCA on 27 April 2016. In support of this submission, heavy reliance was placed upon the delegate’s refusal letter dated 27 July 2016 which, although expressly referring to the second waiver request (both by reference to the ‘Date of Waiver Request’ and ‘Request ID’ cited), also includes the following reference: “following a judicial review of the decision records the Department has been directed to reconsider your request” (emphasis added). The Minister contended that the reference to “decision records” indicated that the delegate had in fact considered “all of the evidence the appellant had provided in respect of both waiver applications as though an application had not previously been made.” The Minister contended that this interpretation of the decision record was further supported by the fact that the delegate’s reasoning reveals that the decision was made without consideration of reg 2.05(4)(b). As outlined at [2] above, reg 2.05(4)(b) introduces an additional element for cases in which the Minister has previously refused to waive the no further stay condition, namely that the decision maker must also be satisfied that the circumstances are substantially different from those previously considered. Therefore, the Minister’s contention was that by proceeding without consideration of reg 2.05(4)(b), the delegate had in fact treated the decision on reconsideration as a fresh request.

27    Secondly, and alternatively, the Minister submitted that if the Court rejected the Minister’s primary submission, any error in not having formally reconsidered the first request would be immaterial because the appellant’s claims were essentially the same in respect of both waiver requests (citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 (Hossain) at [31] per Kiefel CJ, Gageler and Keane JJ).

28    Thirdly, and in the further alternative, the Minister submitted that if the delegate’s decision was found to be affected by jurisdictional error, relief would be withheld in the Court’s discretion because the delegate considered all the appellant’s claims and supporting evidence afresh and there would have been no different outcome if the delegate had formally reconsidered both waiver requests.

29    The appellant’s written submissions in response may be summarised as follows. First, he submitted that his claim to fear harm if he were returned to Egypt was not considered by the delegate in the decision dated 27 July 2016. Secondly, he said that his waiver requests “were not essentially the same in nature”. Thirdly, he contended that his claims and supporting material had not been considered in their entirety. Fourthly, he contended, without further elaboration, that “there is material error in the failure to consider and address the correct waiver request”.

Consideration and determination

30    For the following reasons, I am not satisfied that there is any appealable error in the primary judge’s orders or reasons for judgment. As the Minister pointed out, the primary judge did not conclude that the appellant lacked an arguable case. Instead, the primary judge addressed each of the three grounds of judicial review on the basis of the evidence before the FCCA, including the appellant’s oral evidence relating to matters such as the contents of the missing 11 July 2016 letter.

31    The first judicial review ground was rejected on the basis that any failure to consider the medical certificate which supported the appellant’s claim to be his wife’s carer was immaterial having regard to the delegate’s finding that the appellant and his wife were no longer in a relationship, with the inference that he was no longer her carer. The evidence before the delegate was that, at the time of the delegate’s decision the appellant’s relationship with his former wife had ceased. Indeed, they were divorced. As to the appellant’s reliance on the bundle of documents which was annexed to his affidavit dated 13 June 2017, the primary judge noted that the bundle included a specialist’s report dated 8 May 2017, consequently the bundle could not have been provided to the Department before the delegate made the decision dated 27 July 2016. No appealable error has been shown in respect of those findings.

32    The second ground of review was rejected by the primary judge on the basis that no jurisdictional error was involved in the appellant’s criticisms of the Department’s conduct or alleged negligence, including the impact which this is said to have had on his wife. The primary judge also pointed to the fact that these matters had not been raised by the appellant in support of his waiver application. These findings were reasonably open to the primary judge and no appealable error has been established in relation to them.

33    Ground 3 related to the DFAT website material. No appealable error has been established in respect of the primary judge’s finding that it was reasonably open to the delegate to conclude that travel information relating to Egypt was general in character and did not demonstrate that the appellant personally would be in any specific danger if he returned to Egypt. The delegate expressly addressed the DFAT material and the weight to be given to it in the appellant’s particular circumstances. It is plain that, contrary to the appellant’s submission, the delegate did address his claim to fear harm if he were returned to Egypt.

34    There is no substance in the appellant’s oral submissions that the primary judge erred in not finding that the delegate had failed to consider the letter concerning his wife’s medical condition or the DFAT travel information. The letter concerning his wife’s medical condition was expressly adverted to by both the delegate and the primary judge and her Honour explained that in circumstances where the appellant accepted that his relationship had subsequently ceased, it was not necessary to expressly refer to it, and it was open to the delegate to place no weight on the letter.

35    Similarly, in the decision record dated 27 July 2016, the delegate made express reference to the appellant’s claim that there was a risk of harm if he returned to Egypt and the delegate considered and rejected that claim on the basis that the DFAT travel information provided by the appellant, in support of the claim was “general” and did not demonstrate that he would be in any specific danger if he returned to Egypt. No jurisdictional error has been shown in respect of the delegate’s consideration of the letter concerning the appellant’s wife’s medical condition or the DFAT travel information.

36    As to the issue raised by the Court as described in [23] above, I do not accept the Minister’s primary contention to the effect that, as a matter of both formality and substance, the delegate reconsidered both the appellant’s waiver requests. For the reasons set out in [11] to [14] above, I find that, in form, the delegate formally reconsidered only the second request but, in doing so, in substance he also reconsidered the first request.

37    It is now authoritatively established by two recent decisions of the High Court that, for an error to give rise to a jurisdictional error, the error must be “material” (see Hossain at [31] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) at [44]-[46] per Bell, Gageler and Keane JJ). As the plurality stated in SZMTA at [45], a “breach is material to a decision only if compliance could realistically have resulted in a different decision”.

38    Applying this test to the particular circumstances here, and noting that the materiality of a breach (or error) is an ordinary question of fact in respect of which the judicial review applicant bears the onus of proof (SZMTA at [46]), I am not satisfied that the appellant has established that, if the delegate had also formally reconsidered the first request, this could realistically have resulted in a different decision. That is because, in reconsidering the second request, the delegate took into account all the material before him, including the material relating to the first request, as well as material relating to events which occurred from shortly after the first request was refused. In the decision record dated 27 July 2016, the delegate expressly stated that, in reaching his decision, he had considered inter alia “relevant information held on Departmental files” and he made express reference to both the first and second requests. It is also notable that the delegate did not confine the reconsideration of the second request to the issue whether the circumstances of the second request were not substantially different from those relating to the first request. Rather, the delegate expressly turned his mind to, and determined, the issues presented by reg 2.05(4)(a), i.e. whether since the appellant was granted his visa compelling and compassionate circumstances have developed over which he had no control and which resulted in a major change to his circumstances. Significantly, the delegate did not confine the reconsideration exercise to the issue presented by reg 2.05(4)(b), namely whether the circumstances described above “are substantially different from those considered previously” (i.e. in respect of the first request). The delegate considered the waiver request de novo and afresh. As a matter of substance, the delegate reconsidered both the first and second waiver requests.

39    Realistically, it cannot be concluded in these circumstances that the outcome could have been different if the delegate had in form (as well as in substance) reconsidered the first request. In substance, if not in form, the first request was revisited and reconsidered.

40    For these reasons, I am not satisfied that the error is material, such as to give rise to a jurisdictional error. Necessarily, therefore, there would be no point in requiring the appellant to file an amended notice of appeal to raise a point which was not run below in circumstances where the point has no merit.

Conclusion

41    For these reasons, the appeal will be dismissed, with costs.

Associate:

Dated:    17 March 2019