FEDERAL COURT OF AUSTRALIA

Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39

ORDERS

THE COURT ORDERS THAT:

1.    On or before 6 March 2018, the appellant file a further amended notice of appeal amending ground 4 to include before the word “namely” “either in addition to or in support of grounds 1, 2 and 3” and amending the relief sought to include a claim that the delegate’s decision be set aside.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    This is an appeal from the ex tempore decision of the Federal Circuit Court to refuse Constitutional writ relief to the appellant in respect of a decision by the Minister’s delegate not to waive, under s 41(2A) of the Migration Act 1958 (Cth) a condition, called condition 8503, of his expired tourist visa, being a substantive visa: Yaacoub v Minister for Immigration [2017] FCCA 2183. Condition 8503 provided that the appellant would not be entitled to be granted another visa after entering Australia.

2    The appellant represented himself before the trial judge. As initially formulated by counsel who appeared in the appeal, the grounds of appeal challenged only the adequacy of the trial judge’s reasons for dismissing the application, including a failure by the trial judge to address the appellant’s oral arguments at the hearing. During the course of argument of the appeal, we granted the appellant leave to amend further his notice of appeal to raise a new ground: namely, that the trial judge had failed to consider an argument that the appellant had put orally at the hearing below and that this argument had identified an alleged jurisdictional error that the delegate had made.

Background

3    The appellant had applied for a waiver of condition 8503 in his substantive visa on the basis of reg 2.05(4) of the Migration Regulations 1994. The discretion to waive is conferred under s 41(2A) and may be exercised in accordance with that regulation which provides:

(4)    For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

(a)    since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i)    over which the person had no control; and

(ii)    that resulted in a major change to the person’s circumstances; and

(b)    if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

(c)    if the person asks the Minister to waive the condition, the request is in writing.

4    The appellant lodged his no further stay waiver request application on 9 February 2016. In that, he said that his brother had been:

involved in a very serious accident. He has spiral fracture and had operations, and other operations to be undertaken. He is currently totally dependent on me physically, emotionally and psychologically. My brother is a very successful businessman. He had projects in tiling and he has over 30 workers and over 200 units to tile. I am the only available person looking after him on 24 hr basis. I attach copies of medical reports in support of my application for 8503 waiver. I do wish to apply for a carer visa as he needs me for at least 2 more years until he fully recovers from his injury. Please waive 8503 condition.

5    The brother had suffered a spiral fracture to his right femur when he fell at work on 23 March 2015 that had required ongoing treatment. Among the medical reports that the appellant included in support of his application was a letter dated 1 July 2015 from the brother’s family doctor of the past 26 years. The doctor described the brother as “a very good family man”. The doctor’s letter noted that he had worked as a tiler and had a company employing 25 people. The letter said that the doctor believed the brother’s future work as a tiler would be impossible because he was not allowed to visit any building sites due to the instability of his gait and that his medical condition would also affect his work. The doctor said he understood that the appellant was looking after the brother’s business and would assist his brother by overseeing the work and accompanying him in various medical and business meetings in the future, because the brother was unable to drive his car for an extended period. The doctor urged these matters to be taken into consideration in the visa application that the appellant was making.

6    The visa application also included another medical report, by the same doctor to the brother’s insurer dated 7 December 2015. This answered the question: “What is your patient’s current clinical presentation (not their work capacity)” with “can’t walk, due to his surgery/pain”. The doctor also noted in other responses that, since his last update, there had been a change in the patient’s primary condition and that his only two activities that were impacted were driving (because he could not use his right leg in driving) and household chores (because he could not “do any home maintenance; e.g. gardening”). The report noted that the brother was restricted permanently in the activities of lifting and gardening. The doctor did indicate that the brother could drive a short distance and that his condition was improving, although the patient had suffered a new fracture, having slipped at home in November 2015.

7    The delegate also had before him the appellant’s tourist visa application that identified his purpose of visiting his five siblings here. That application had been granted in Lebanon on 27 March 2013 prior to the appellant’s arrival in Australia on May 2013. The tourist visa was the substantive visa that contained condition 8503 that the appellant sought to be waived.

The delegate’s decision

8    Although not obliged to do so, the delegate gave written reasons for refusing the application. He found that from all the information available to him, including the documents and the information that the appellant had provided, the requirements for a waiver had not been met.

9    The delegate noted that the brother was unable to drive or undertake household chores, such as gardening or lifting heavy objects. The delegate also referred to the doctor’s letter of 1 July 2015, noting that it had referred to the appellant overseeing his brother’s business and assisting him with various business and medical meetings due to his inability to drive. The delegate acknowledged that the brother may have had difficulties that required assistance in his business and in keeping his appointments and that what the appellant was doing was of assistance.

10    But, crucially, the delegate found that he did:

not accept that you are the only person who is able to assist in driving your brother to his appointments and I have considered that there are other options available to him in regard to transport.

11    He also found that the appellant had other family members residing in Australia and that the brother’s business employed over 30 people. The delegate concluded:

Therefore, I am not satisfied that you are the only person who is able to provide the necessary assistance.

In [sic: scil: I] considered your complete circumstances you have presented in your Waiver request. I do not find that collectively they are sufficiently forceful to make a decision to waive the condition. I have assessed your claims against the criteria in Reg 2.05(4), and whilst I recognise that your assistance may have been valuable to Mr Yacoub [sic] immediately following his accident I am not satisfied that the circumstances presented in your request are compelling, or that they are circumstances which meet all the criteria set out in the Regulations. (emphasis added)

The proceeding before the trial judge

12    The hearing before the trial judge was brief. The appellant did not make any written submissions but he did make oral submissions to his Honour. The grounds of the appellant’s application at the hearing were as follows:

1.    The decision of the Delegate is affected by error as it failed to see the severity of the accident which is compelling and contrary to the comment made by the Delegate stating that my brother's circumstances are not compelling, my brother is unable to drive or undertake household chores such as gardening or anything which involves heavy lifting. The condition my brother is in is compelling and the decision is made contrary to the evidence provided.

2.    My brother's circumstances are supported by medical evidence and the decision made by the Delegate leads anyone to see that it is a wrong decision and that the Department misunderstood the severity of the circumstances and misapplied the law by not waiving 8503 condition.

3.    The Department acted contrary to regulation 2.05(4) as listed in the decision.

13    His Honour’s reasons briefly set out the nature of the application for waiver of condition 8503 in the appellant’s tourist visa. He noted that the delegate had identified his power, under s 41(2A) of the Act, to waive condition 8503. His Honour said that the appellant had contended that he was necessary to assist his brother to take him to places and that the delegate had pointed out, correctly, that the appellant had other family members residing in Australia and that the brother employed over 30 people in the business. He observed that it was clear that the delegate had taken into account the appellant’s claims in respect to the brother’s injury.

14    His Honour found that the delegate’s adverse conclusion to refuse to waive the condition had been open on the material before him. The trial judge said that the appellant had had an opportunity to put material to the delegate in relation to the application for waiver, and found that the delegate had not failed to comply with any statutory obligation in relation to his consideration in arriving at the waiver decision. His Honour found that, on the face of the material before him, the appellant had been afforded procedural fairness in the determination of his application for waiver.

15    The trial judge said that he had identified to the appellant, at the commencement of the hearing before him, the nature of the proceeding. He noted that the appellant had sought to rely on a further affidavit made on 2 August 2017, annexing material that had not been before the delegate. His Honour correctly rejected that material as inadmissible, but admitted the balance of the affidavit, subject to relevance. He then said:

10.    The applicant sought to take the Court to the material that was before the delegate and, in particular his assertions in relation to his brother’s need of his assistance. Nothing said by the applicant from the bar table identified any relevant legal error in the decision of the delegate.

16    After identifying the grounds of the application (set out above), his Honour dealt with them as follows:

Ground 1

12.    Ground 1, in substance, is a disagreement with the adverse finding by the delegate and does not identify any relevant legal error.

Ground 2

13.    Ground 2 asserts a misunderstanding of the facts. It is not apparent on the material before the Court that there was any misunderstanding of the applicant’s claims and evidence by the delegate. The adverse decision in relation to the applicant was open. Ground 2 is, in substance, an invitation for this Court to engage in an impermissible merits review. No relevant error is made out by Ground 2.

Ground 3

14.    In relation to Ground 3, the bare assertion of the delegate acting contrary to the provision reflects a disagreement with the outcome. It does not identify any relevant legal error. On the face of the material before the Court, the delegate complied with the applicable statutory obligations and afforded the applicant procedural fairness.

This appeal

17    In his amended notice of appeal, the appellant asserted that the trial judge had erred by failing to provide adequate reasons for rejecting each of grounds 1, 2 and 3 and relevantly, added most recently, a ground that his Honour had erred by failing to decide material grounds raised by the appellant in oral argument before him, namely, that the delegate:

    had wrongly found that the appellant’s brother could get help from other people;

    had failed to inquire whether any person other than the appellant could give his brother the necessary help and therefore, had failed to afford the appellant procedural fairness;

    had failed to take into consideration the appellant’s claim that his brother was under the appellant’s care completely, that is, physically, emotionally and mentally on a 24 hour basis; and

    had failed to take into consideration the importance of the appellant’s role for his brother and the consequences for his brother, in terms of his work, mental and physical situation without the appellant.

18    In essence, those four grounds came down to the appellant’s statements in oral argument to his Honour that the delegate:

… did not take into consideration like I have previously said in page 2 [being the page of the court book in which he provided his reasons for seeking the waiver that we have set out at [4] above], … that my brother is under my care completely and there is no one else that can take my place because I am responsible for my brother in every way as I mentioned in page 2. (emphasis added)

19    The appellant reiterated this argument a little later in the hearing. As initially framed, the amended notice of appeal and the appellant’s written submissions, only sought relief that the appeal be allowed and the proceedings remitted to the Federal Circuit Court for re-hearing on the ground of the inadequacy of his Honour’s reasons. When the Full Court raised the question as to what, on the material before us, amounted to a jurisdictional error that the Federal Circuit Court could, and should, have found, the appellant’s counsel formulated a further amended ground of appeal to which we have referred and proceeded to argue it. She contended that the delegate had overlooked the appellant’s express claim in the waiver application that his brother was totally dependent on him as he had explained to his Honour in the submission quoted at [18] above.

20    Counsel accepted that the delegate had found as a fact that, although the circumstances were compassionate, the change in them was not a major change to the appellant’s, as opposed to his brother’s, circumstances. However, she argued that the delegate had failed to consider the argument that his brother needed him to provide 24 hour care and assistance and that this amounted to a jurisdictional error that affected this finding of fact. She contended that the delegate ought to have given the appellant an opportunity to be heard on the sufficiency of the material to support his contention that the brother was totally dependent on the appellant. She submitted, in the alternative, that the trial judge should have treated the oral arguments that the appellant had advanced as furnishing particulars to the grounds for review set out in the originating application.

21    The last submission must be rejected. The matters that the appellant raised in oral argument before the trial judge, set out at [18] above, amounted to a substantive allegation of jurisdictional error. In light of the appellant representing himself, the trial judge ought to have engaged with the new argument and determined it on the merits, giving adequate reasons for rejecting it, even if that new argument was not included in the written grounds in the application below. We allowed the appellant to raise this as a new ground of appeal. The Minister did not suggest that he suffered any prejudice from this being permitted.

Consideration

22    In our opinion, his Honour properly rejected the first and second grounds for review as merely expressing disagreement with the merits of the delegate’s findings. Those grounds did not identify any subject that could have amounted to a jurisdictional error and his Honour’s reasons for so holding were not deficient. Albeit summary, they were adequate in all of the circumstances. The matters that the appellant raised in oral submissions were not related to any of the complaints in his first two written grounds.

23    His Honour was also correct to characterise the third ground as amounting to a “bare assertion” that did not identify any relevant legal error. His Honour’s reasons for characterising the third ground in that way were not inadequate. In our opinion, the matters that the appellant raised in oral argument cannot be regarded as furnishing particulars to that ground. For those reasons, ground 1, 2, 3 and 5 in the further amended notice of appeal must be rejected. For the same reasons, we reject ground 4 to the extent that it alleged that his Honour erred by failing to interpret the written grounds differently in light of the oral submissions made before him at the hearing.

24    However, as we have found above, his Honour should have identified what the appellant put orally as a new argument or ground and given express reasons for rejecting it. That is because it was not covered by any of the three grounds of the application.

25    The appellate jurisdiction that s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) confers on this Court is to hear and determine appeals from the Federal Circuit Court exercising its original jurisdiction under, relevantly, the Migration Act. In the exercise of its appellate jurisdiction, s 28 of the Federal Court Act gives this Court power to make a variety of orders, including orders setting aside the judgment appealed from and remitting the proceeding to the Federal Circuit Court “for further hearing and determination” (s 28(1)(c)), or granting a new trial “on any ground upon which it is appropriate to grant a new trial” (s 28(1)(f)).

26    In an appeal, s 27 of the Federal Court Act provides that the Court:

shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.

27    A judge has a duty to give reasons for his or her decision in proceedings, such as was before his Honour, that finally or summarily disposes of proceedings. A failure to give reasons on a material issue of fact or law is itself an error of law: Fleming v the Queen (1998) 197 CLR 250 at 266 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. That is because the absence of reasons makes it impossible for an appellate court to determine whether or not the dispositive order or judgment was based on an error of fact or law: Fox v Percy (2003) 214 CLR 118 at 126 [24] per Gleeson CJ, Gummow and Kirby JJ. In addition, the parties, particularly the losing party, are entitled to an explanation by the judicial officer of the reasons that he or she had to justify the use of the court’s judicial power to decide the controversy in the manner effected by the orders. As Gaudron, Gummow, Hayne and Callinan JJ said in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue Victoria (2001) 207 CLR 72 at 84 [26]:

The disappointed [party] and any court asked to review the refusal must, however, be able to know from the reasons given by the primary judge why the judge reached the decision.

28    In addition, ex tempore reasons given by judges and magistrates are not expected to be perfect. Parties often want, and need, to know where they stand at the end of a contested hearing and do not require detailed or more refined reasons such as they might obtain from a reserved decision, that may be appropriate in other situations. As Flick J observed in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at 455-456 [16]:

the standard is not a standard of perfection. The judicial context in which decisions are made must necessarily be recognised – including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. Indeed, the very prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the primary judge about the need to reserve a decision for greater consideration. When an ex tempore judgment is delivered, however, it “should not be picked over” and “appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them”: Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Cicek v Estate of the late Solomon [2014] NSWCA 278 at [140] per Ward JA (Meagher and Barrett JJA agreeing); Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Matters of complexity requiring “judicial reflection” do not usually lend themselves to ex tempore reasons for judgment: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [102] per Bergin CJ in Eq. See also: [2015] NSWCA 373 at [180] per Emmett AJA.

29    There is a distinction between a failure to give any, or any sufficient, reasons, on the one hand, and a failure to consider a material question of fact or law on the other. The nature of the relevant failure will be apparent from consideration of the issues before the court whose decision is under appeal or review and the reasons for its decision.

30    When the appellant orally addressed his Honour, he said that the delegate had not taken into consideration his claim that he was, in effect, required to, and the only person who could, provide his brother with 24 hour assistance. The delegate was not obliged to give the appellant notice of the matters he was considering in relation to the material which the appellant had provided in support of his application or to point out its inadequacies. Rather, the function of the delegate was to consider, as a relevant consideration, what the appellant had asked him to look at in the course of making his decision. The delegate had no legal duty to ask the appellant to supplement or clarify any deficiencies that the delegate may have perceived in the material that the appellant had provided in support of his application for a waiver of condition 8503. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held that:

Procedural fairness does not require the [decision-maker] to give an applicant a running commentary upon what it thinks about the evidence that is given.

31    In our opinion, his Honour was correct to find that the delegate had not denied the appellant procedural fairness. However, his Honour’s reasons did not summarise or address in terms, the appellant’s argument that he was the only person who could provide his brother with the necessary assistance. As the appellant’s counsel put in argument to us, the gravamen of what he had said orally to his Honour was that the delegate had not addressed his written claim that his brother was “currently totally dependent on me physically, emotionally and psychologically”, and that the appellant was “the only available person looking after him on a 24 hour basis”.

32    While, his Honour may have had this argument in mind, when he said what he did in [10] of his reasons set out at [15] above, that terse passage did not deal expressly with or consider the legal issue that the appellant had raised as a clearly articulated claim that the brother’s need for assistance was effectively at the level of requiring 24 hour a day assistance and that only he, the appellant, could provide this: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68]. It would have been appropriate for his Honour to have identified expressly this argument and to have given a reasoned explanation for rejecting it, because it amounted to a new ground of review.

33    However, in the circumstances, the appellant has not suffered any practical injustice from his Honour’s failure to address that claim: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] per Gleeson CJ. In fact, the delegate did deal with this claim in coming to his decision, and for the following reasons, made no jurisdictional error in the way in which he disposed of it.

34    In approaching the review of the delegate’s reasons, however, it is important to appreciate that he had no statutory duty to explain why he exercised his power in the way he did. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185-186 [25] French CJ, Bell, Keane and Gordon JJ said:

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282]. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision [Migration Act 1958 (Cth), s 66(2)(c), (3).], and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[33], [66]-[73]]. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power” [Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84]]; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272]. (bold emphasis added)

35    Their Honours decided the meaning of the word “compelling”, in its context in cl 202.222(2) of Sch 2 of the Migration Regulations, which required the Minister to be “… satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa” (emphasis added) (see 258 CLR at 180 [13]). They said (at 187-188 [31]) that the state of mind of the decision-maker under that clause:

must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” … “irresistibly” … to be satisfied that “special consideration” should be given to granting the particular application. (emphasis added) (citations omitted)

36    Here, reg 2.05(4)(a) provided a precondition for the grant of a waiver, namely that the waiver could only be given if “compelling and compassionate circumstances” had developed. The delegate had the function of assessing the appellant’s proffered reasons, supporting documentation and other relevant material before him and to determine whether they met the conditions for a waiver.

37    The delegate found that, first, compassionate circumstances had developed, secondly, the appellant had had no control over the circumstances in which his brother found himself but, thirdly, the changes to the brother’s circumstances were not “a major change to the [appellant’s] circumstances” within the meaning of reg 2.05(4). That finding was itself dispositive of the application for waiver.

38    The appellant argued that if the delegate had failed to address his circumstances as a full-time carer, that would amount to a jurisdictional error affecting the last finding. However, in our opinion, the delegate did consider, and found not to be compelling, the circumstances on which the appellant relied to support his assertion of being needed as a full-time carer. That is because the delegate identified the evidence, to some of which we referred above, including the doctor’s letter of 1 July 2015 that dealt with the brother’s needs for assistance because of his inability to drive, undertake household chores, and need to attend to business and medical appointments.

39    The delegate also had before him the appellant’s tourist visa application that had referred to his five siblings who were in Australia, including his injured brother. Moreover, in his 1 July 2015 letter, the doctor described the brother as a “very good family man”. The other medical reports that the appellant included in the waiver application included the doctor’s report of 7 December 2015 that described the brother’s then current medical conditions in such a way that it was open for the delegate to find that the brother was not totally dependent on the appellant or in need of full-time care.

40    Thus, the delegate had a rational basis to find that he was not satisfied that the appellant was the only person who could assist his brother. He found that the circumstances were not collectively “sufficiently forceful to make a decision to waive the condition” preventing the grant of a new visa.

41    In our opinion, the delegate addressed the reasons and documentation that the appellant had advanced in support of his application, but did not find that these reached the level of being compelling reasons, that is, reasons that forced or drove the delegate irresistibly to be satisfied that condition 8503 should be waived: Plaintiff M64/2015 258 CLR at 187-188 [31].

42    Moreover, the delegate was not persuaded that the appellant’s circumstances, as opposed to those of his brother, had undergone a major change as reg 2.05(4)(a)(ii) required. For those reasons, the new ground must be rejected.

Conclusion

43     The appeal must be dismissed with costs.

Associate:

Dated:    20 March 2018