FEDERAL COURT OF AUSTRALIA

SZLPH V Minister for Immigration and Border Protection [2018] FCAFC 145

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the respondent’s delegate (“delegate”) dated 3 February 2015 to refuse a request to waive a visa condition: SZLPH v Minister for Immigration [2018] FCCA 231.

Background to appeal

2    The appellant is a male national of Pakistan who arrived in Australia on 2 November 2005 on a Business (Short Stay) (Class UC) Subclass 456 visa. The business visa was subject to condition 8503 in Sch 8 to the Migration Regulations 1994 (Cth) (“Regulations”) which provides that the visa holder will not be granted a substantive visa, other than a protection visa, while he or she remains in Australia. Upon the expiry of his business visa in 2006, the appellant applied for a protection visa. His application was refused and he was subsequently unsuccessful on both on his application for merits review of that refusal and judicial review of the affirmation of the refusal.

3    The appellant remained in Australia unlawfully and, in 2012, was married to his wife, an Australian citizen.

4    On 12 January 2015, the appellant requested that the Minister waive condition 8503. The prescribed circumstances for a waiver in relation to this condition are set out in reg 2.05(4) of the Regulations. Regulation 2.05(4) provides that the circumstances in which the Minister may waive such a condition are, relevantly, 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 …

Waiver request

5    As articulated by the appellant, the basis given by him for the waiver request included the following:

(1)    In November 2014, the appellant fell off a ladder and fractured his pelvis and arm for which he was admitted to hospital, and underwent surgery that led to medical complications which caused him to be in a coma for a period.

(2)    The appellant’s wife suffered significant mental distress due to her husband’s sudden serious injuries. A psychologist’s letter stated that the appellant’s wife had reported symptoms meeting the criteria for an adjustment disorder and amongst other things, it was hindering her ability to concentrate and to continue her work and studies.

(3)    The appellant and his wife feared for their safety if they had to return to Pakistan due to the dangerous incidents occurring in their home area. They provided evidence of recent bombings that killed and injured multiple people near their home.

6    The waiver request comprised a “Condition 8503 (No Further Stay) – Waiver Request Form” signed by the appellant, accompanied by a submission in the form of a statement prepared by the appellant’s wife and other documents. The appellant’s wife’s statement included the following concerning security threats in Pakistan:

One more thing to travel overseas is that there are serious security threats. I live in Lahore and my home town suburb is on a very sensitive location. Since 2008 till know there have been 13 bomb explosions which were 2 to 5 Kilometre radius from my house. … For my home town address Please find attached copy of NICOP (national identity card for overseas Pakistanis’)

… Especially my residential area is vital. There already been 17 attacks within 6 years. According to the average there are almost 3 attacks after every 6 month just 1.2km to 11km from my house.

7    The statement also sets out details of bombings during the years 2008 to 2014, with details of the numbers of persons killed and injured and the distance of each incident from the wife’s house in Lahore.

Delegate’s decision

8    The delegate concluded that the appellant had not provided any information which would indicate that there had been a major change to the appellant’s circumstances beyond his control since his visa was granted on 5 April 2005.

9    The delegate also concluded that the appellant had not provided any information proving that he was not able to travel back to Pakistan once he had recovered from his injuries, and that he was compelled to remain in Australia.

10    The delegate found that the appellant’s decision to enter into the relationship with his wife, and their subsequent marriage was within the appellant’s control. The delegate acknowledged that the appellant’s accident and subsequent hospitalisation was “compassionate in nature” but concluded that the events that led to the accident (particularly, the appellant’s “decision … to work in Australia without a valid visa that gave [him] permission to work”) were within the appellant’s control. Neither of these findings is challenged on the appeal.

11    The delegate accepted that the appellant was not fit for travel for at least three months, but found that this current condition was only temporary and not a reason that compelled the appellant to remain in Australia indefinitely. The delegate observed that, for a waiver to be considered the appellant must give evidence that he was left with little or no other alternative than to remain in Australia. On the medical evidence, the delegate did not accept that the appellant “will remain unfit to travel back to Pakistan indefinitely and is compelled to remain in Australia”. None of these findings are challenged on the appeal.

12    Concerning the appellant’s wife, the delegate stated:

I acknowledge in your statement that your wife is suffering with a psychological condition and this may cause you concern. I also acknowledge that her condition can be considered compassionate in nature. As stated in a letter written by Roylena Bari (psychologist) “[The appellant’s wife] is currently suffering from significant stress in the context of her husband’s sudden serious injuries”. Your wife’s condition is understandable considered [sic] her concern for you and the injuries you sustained. However the letter written by Roylena Bari does not state that [your wife] is incapacitated to the degree that she is not able to take care of herself. In fact in her own statement, [your wife] indicated that she was invited to live with her brother for support while you were in hospital. Therefore, I am satisfied that your wife has both psychological and family support to cope with her stress.

13    Concerning the appellant’s safety in Pakistan, the delegate stated:

I acknowledge your statements made regarding your concerns about returning back to Pakistan are compassionate in nature. Policy indicates that the criteria in Reg 2.05(4) will be satisfied in circumstances where the decision maker can be satisfied that the applicant lives in an area that has been directly affected. Merely coming from an affected country is not, in itself, sufficient for this concession to apply. Departmental records indicate that you arrived in Australia on 02/11/2005 and have not returned back to your home in Pakistan. You have not indicated whether this home was owned by you or whether you had rented the accommodation. Ten years have passed since you last lived in this accommodation and you provide no evidence that proves this property is still vacant and awaiting your return or whether others have settled into the property. Further, you provide no evidence that indicates you are not able to return back to Pakistan and find alternative accommodation with remaining family members. Therefore, I do not accept that you are not able to return back to Pakistan.

FCCA proceeding

14    The appellant was unrepresented in the FCCA. He relied on an application filed on 26 February 2015 which pleaded that the delegate “misinterpreted and misunderstood the claim and the difference between compassionate and compelling circumstances”.

15    At [30] to [41] of her Honour’s reasons, the FCCA judge recorded the appellant’s arguments. Relevant to this appeal, at [36] and [37] of her Honour’s reasons, the FCCA judge noted:

[36]    The Applicant also took issue with the delegate’s failure to accept that his wife’s psychological condition (said to be as a result of his fall) was compelling. It was submitted that the delegate had not understood the severity of his wife’s psychological condition and had failed to ask how it developed and what would happen to his wife as a result of any action to deport him.

[37]    The Applicant’s wife made submissions to the court about her current psychological condition, but confirmed that the only evidence that had been before the delegate in that respect was the psychologist’s letter of 9 January 2015. While it was acknowledged that this letter was considered by the delegate, the Applicant submitted that the delegate had failed to realise the impact of these circumstances on her life and that of her husband, because he did not consider it properly and did not inquire into the consequences for the Applicant, and for her, if the Applicant had to return to Pakistan.

16    At [39] of her Honour’s reasons, the FCCA judge noted:

The Applicant submitted that if the delegate thought that the evidence he provided was not enough, the delegate should have asked for further evidence to consider the issue properly, but had not done so.

17    At [41] of her Honour’s reasons, her Honour recorded a submission that the delegate had failed to consider whether it was safe for the appellant to return to Pakistan.

18    These aspects of the argument before the FCCA judge, and her Honour’s consideration of those submissions, set out below, show that the FCCA judge’s decision addressed the delegate’s decision comprehensively including by reaching conclusions relevant to the arguments sought to be made on this appeal, even though the proposed grounds of appeal seek to identify different errors on the part of the delegate.

19    At [66] of her Honour’s reasons, the FCCA judge noted that the delegate’s provision of written reasons for his decision permitted “consideration being given to those reasons in order to determine, relevant to the concerns expressed by the Applicant, the matters considered by the delegate, and, in particular, whether the delegate failed to consider any submission or evidence in a manner constituting jurisdictional error or otherwise fell into jurisdictional error, citing Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 at [55].

20    At [75] of her Honour’s reasons, the FCCA judge noted:

[I]t has not been established that the delegate misconstrued or misunderstood the meaning of “compelling circumstances” or, indeed, confined it in a manner demonstrating a misunderstanding or misapplication of the law to circumstances which compelled an applicant to remain in Australia. Such an approach would be inconsistent with the delegate’s consideration of the impact of the wife’s psychological condition and whether such circumstances could amount to compelling circumstances that resulted in a major change to the Applicant’s circumstances.

21    At [77] of her Honour’s reasons, her Honour said:

Insofar as the Applicant now makes broader submissions to the court about his circumstances and puts other medical evidence before the court in this respect, this does not establish that the delegate erred in failing to have regard to material that was not put before him prior to the waiver decision.

22    At [86] and [87] of her Honour’s reasons, the FCCA judge concluded that the delegate considered the information provided in relation to the appellant’s wife’s psychological condition, saying:

[86]    Insofar as the Applicant takes issue with the delegate’s consideration of his wife’s psychological condition and the concern that it may cause him, the focus of the statements and submissions from the Applicant was primarily on the impact on her. I note that insofar as the concerns expressed in these proceedings (in this or any other respect) related to the circumstances of the Applicant’s wife, reg.2.05(4) refers to circumstances that have resulted in a major change to the circumstances of the person whose visa was subject to condition 8503. The delegate did not misunderstand or misinterpret the claims put to him in considering whether the wife’s condition (which he accepted may cause the Applicant concern) amounted to compassionate and compelling circumstances within reg.2.05(4). The delegate considered the information provided in that respect.

[87]    The concerns raised about the wife’s present condition do not demonstrate any legal error on the part of the delegate.

23    Concerning safety in Pakistan, the FCCA judge found (at [88] and [89] of her Honour’s reasons):

[88]    As to the Applicant’s concerns about returning to Pakistan, it was not entirely clear on the material in the courtbook whether the complaints about bombing and terrorist activities in Lahore in the wife’s statement provided in support of the waiver application related to events in the vicinity of her former home or the Applicant’s former home. In submissions to the Court this home was described as the family home and concerns about return [sic] to Pakistan were expressed in terms of the Applicant returning to his hometown. There has been no suggestion that the delegate misunderstood the claims in that respect.

[89]    On the limited material before the delegate, he has not been shown to have failed to consider any integer of the Applicant’s claims. It was reasonably open to him to have regard to policy and to be of the view that merely coming from an affected country was not sufficient to establish compelling circumstances and, indeed, to have regard to the limited evidence before him in considering whether he could be satisfied that the Applicant had lived in an area that has been directly affected, having regard to the fact that the Applicant had been in Australia for nearly 10 years at that time and the limited evidence provided to the delegate in relation to the Lahore property.

24    Finally, at [93], the FCCA judge addressed the appellant’s submission that the delegate should have asked him for more information, saying:

The Applicant submitted that the delegate should have asked him for further information in relation to his claims. However, as the Respondent submitted, it was for the Applicant to put such information before the decision-maker as he saw fit. There is nothing in the circumstances of this case to indicate that there was a critical fact, the existence of which was easily ascertained, such as to impose any duty on the delegate to inquire of the nature considered in SZIAI. Nor is there any evidence that the Applicant made any such request to the delegate, or that he sought further time to provide additional information. The delegate could only assess the circumstances raised for his consideration. There was no obligation or duty at law in this case to require him to go beyond the case actually presented (see Thongpraphai at [13]-[14]).

Proposed grounds of appeal

25    As originally filed, the notice of appeal set out two grounds of appeal. The appellant now seeks to rely on an amended notice of appeal which raises the following different grounds of appeal:

(1)    the FCCA judge failed to find that the delegate denied the appellant procedural fairness and failed to take into account relevant considerations; and

(2)    the FCCA judge failed to find that the delegate denied the appellant procedural fairness; failed to consider a claim and/or an integer of a claim and failed to take into account relevant considerations.

26    The first ground is supported by the following particulars:

(a)    the appellant’s wife provided a statement that the appellant’s serious accident, his emergency operation and his subsequent treatment in the intensive care unit caused a detrimental effect on her mental health, for which she had been treated by a psychologist, and had assistance from her brother;

(b)    from that statement the delegate concluded that the wife was not “incapacitated to the degree that she was not able to take care of herself” and that she had family support to cope with her stress;

(c)    however, the delegate failed to take into account that the wife said that her mental health had deteriorated to such an extent that, inter alia, she constantly felt dizzy, she had to be driven to and from the hospital to see the appellant, and she had to be urged to eat and drink;

(d)    the delegate failed to take into account the corroborating statement of Nadia Mokbab that she had to visit the wife daily and had to check that she was taking her medication and the whole of the psychologist’s report which included that the wife’s symptoms are hindering her ability to work and concentrate;

(e)    the delegate proposed to use the wife’s statement to conclude that:

(i)    she would have the ongoing support of her brother but without knowing anything about the brother’s circumstance; and

(ii)    her mental condition was not so “incapacitated” to be “compelling”, but failed to take into account all of the relevant considerations;

(f)    particularly in respect of the wife’s brother, the delegate was required to advise of any adverse conclusion which had been arrived at which would not obviously be open on the known material, and to give the appellant an opportunity to respond.

27    The second ground is supported by the following particulars:

(a)    the appellant’s wife made a statement that provided details of the security threat in her home town suburb in Lahore, and specific information of bombings with dates, the number of deaths and the distance from her house, which were all within a 2-5 km radius;

(b)    the delegate failed to take into account this information and thereby failed to understand and address the case that the appellant sought to make about the specific security threat faced near his home, as demonstrated by the following findings:

(i)    the decision maker had to be satisfied that the applicant lives in an area that has been directly affected, merely coming from an affected country is not in itself sufficient;

(ii)    there was an absence of any information about whether the appellant’s home was “owned by you or whether you had rented accommodation”; and

(iii)    “you provide no evidence that you are not able to return back to Pakistan and find alternative accommodation with remaining family members”;

(c)    the appellant had provided specific information of the security risk that he faced in his hometown; he was not aware that he had to also prove that he could not find alternate accommodation with family members. The delegate proposed to make a conclusion without knowing any of the circumstances of other family members in Pakistan, if any; and

(d)    the delegate was required to advise of any adverse conclusion which had been arrived at which would not obviously be open on the known material, and to give the appellant an opportunity to respond.

28    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46]    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

The statement of principle in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] is to similar effect.

29    In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented and put on no submissions at all. The Full Court said (at [66] to [68]):

[66]    In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time.

[67]    However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance.

[68]    All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

30    Counsel for the appellant, Ms Baw, contended that the Court should grant leave to rely on the amended notice of appeal because (a) the proposed grounds of appeal have clear merit; (b) there is no real prejudice to the Minister in permitting them to be agitated; and (c) the appellant would be prejudiced if he were to be refused leave because an adverse outcome on the appeal is capable of resulting in a deprivation of liberty for the appellant: see ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 (“ARK16”) at [25]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [25].

31    For the reasons which follow, after hearing full argument from the parties, we have concluded that the appellant’s proposed grounds do not have merit. Accordingly, leave to rely on the amended notice of appeal should be refused. It follows that the appeal must be dismissed with costs.

Legal framework

32    As the FCCA judge noted, the delegate was not required to give reasons for his decision: Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [8]. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25] the plurality 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] HCA 1; (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] HCA 48; (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (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].

33    In ARK16 at [10], Mortimer J observed that, where a decision maker provides a decision with reasons, the Court is entitled to take the decision record as expressing the delegate’s reasoning on the exercise of power: see also Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [69], citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J.

34    Any possible tension between these authorities was not the subject of argument on the appeal, and the delegate’s decision record was treated as expressing the delegate’s reasoning.

Failure to Consider Evidence

35    Although the proposed grounds of appeal allege a failure by the delegate to take into account relevant considerations, the appellant did not argue that there had been any failure to take into account a mandatory relevant consideration: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.

36    Rather, the case was that the delegate’s failure to consider certain items of evidence was indicative of jurisdictional error on the part of the delegate: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111], cited with approval in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (“SZSRS”) at [34]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 203 FCR 431 (“MZYTS”) at [36] and [46]. In MZYTS, the Full Court held that the failure of a tribunal to have regard to relevant material could give rise to an implication that the tribunal had constructively failed to exercise its jurisdiction to form the state of satisfaction required by the Act.

Denial of Procedural Fairness

37    The Minister did not dispute that the delegate’s decision was subject to a requirement, at common law, to accord the appellant procedural fairness. In Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83], the High Court of Australia unanimously explained the scope of the duty to afford procedural fairness as follows:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

38    Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (“Alphaone”) at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

39    In the context of an application to waive condition 8503, a denial of procedural fairness was found in ARK16 where Mortimer J concluded that the appellant was denied a reasonable opportunity to be heard on an adverse finding that was not made known to him and not obviously open on the material.

Proposed ground 1: Wife’s psychological state

40    The appellant submitted that he was not given the opportunity to address the delegate about whether there was, in fact, any “ongoing” family support for his wife from her brother. However, the delegate did not make a finding about the existence of such support. His finding was to the effect that, as a matter of fact, the appellant’s wife was receiving both psychological and family support to cope with stress that was occurring in the particular context identified by the psychologist. In any event, procedural fairness did not require the delegate to disclose for the appellant’s comment his evaluation of the wife’s situation, based on her statement. The delegate’s finding of family support is not critical to his decision, and is an obvious and natural evaluation of the material submitted by the appellant.

41    The fact that the delegate did not refer to the statements of the appellant’s wife and the third party, Ms Mokbab, which suggested that the appellant’s wife was materially more serious than the delegate had found to be the case, does not show that this material was ignored. Those statements are not necessarily inconsistent with the opinion of the psychologist that the appellant’s wife was “currently suffering from significant stress”. Contrary to what might be suggested by the appellant, in the absence of an opinion from the psychologist that the appellant’s wife could not take care of herself, the delegate was not required to make a finding to this effect or any finding that the appellant’s wife’s condition would be enduring.

42    The delegate’s reasons do not support a finding that the delegate had failed to take into account the evidence that, at the time of the psychologist’s letter, the appellant’s wife had ceased working and studying for her professional accounting qualification. In any event, it is not obvious that this was a matter of significance to her psychological state, where the psychologist’s report stated that the appellant’s wife had done so “to emotionally support her husband”.

43    In particular, we do not accept that the delegate’s finding, replicating the departmental submission that “[the appellant’s wife] is not incapacitated to the degree that she is not able to take care of herself” indicates that the delegate did not consider the entire opinion of the psychologist. To the contrary, that finding is open on a fair reading of the psychologist’s report.

44    The contention that all the evidence points towards the appellant’s wife possibly being on the brink of a mental breakdown is overstated. The psychologist’s opinion is directly contrary to such a conclusion.

45    Accordingly, we do not accept that the delegate committed any error of the kind identified by the appellant by proposed ground 1.

Proposed ground 2: Risk if appellant returns to Pakistan

46    The delegate’s reasons set out a series of matters in support of a conclusion that the appellant did not demonstrate that he would be directly affected by the risk of bombings if he were to return to Pakistan. These were that there was:

(1)    no indication whether the home that the appellant left in Pakistan was owned by the appellant or had been rented;

(2)    no evidence to prove that the property is still vacant and awaiting the appellant’s return; and

(3)    no evidence that the appellant is not able to return to Pakistan and find alternative accommodation with remaining family members.

47    As the FCCA judge noted (at [88] of her Honour’s reasons), there is uncertainty about whether the risk of bombings in Lahore, identified by the appellant’s wife in her statement accompanying the waiver request, related to the vicinity of her former home or the applicant’s former home.

48    Ms Baw submitted that the delegate proceeded on the premise that the appellant had claimed an intention to live in Lahore at the address that was referred to by the appellant’s wife in her statement.

49    The various factual matters about which the delegate was not satisfied indicate a degree of confusion about the basis on which the appellant was raising the risk of bombing. The waiver request was not explicit about this. In particular, the waiver request (including the wife’s statement) did not state that the appellant would live in any particular location if he were returned to Pakistan or explain the relevance of the wife’s former home to the appellant’s waiver request. Even so, we accept the delegate appears to have proceeded upon the basis, favourable to the appellant, that his claim was that he would be living in close vicinity to areas affected by that risk.

50    The appellant argued that he was not made aware that it was relevant for him to provide evidence about whether he owned his own home or rented accommodation in Pakistan.

51    Similarly, the appellant argued that he was denied procedural fairness by the delegate assuming, in the absence of any evidence, that he could return to Pakistan and stay with other family members.

52    The underlying contention is that the delegate should have informed the appellant that his claim based on the risk of bombings would be unlikely to be accepted unless the appellant could demonstrate that, on returning to Pakistan, he would live in an area that had been directly affected by that risk.

53    However, as the Minister submitted, it was for the appellant to advance whatever evidence he wished to in support of his contentions. It was for the delegate then to decide whether that claim is made out: see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187].

54    In contrast to the case in ARK16, the delegate did not rely upon a particular fact (in ARK16, the existence of a sibling who could support a sister suffering from post-natal depression) as a material fact. In particular, and contrary to the appellant’s submission, the delegate did not find that he could stay with other family members in Pakistan. Rather, the delegate observed that the appellant had not provided evidence that indicated that he could not return to Pakistan and find alternative accommodation with remaining family members.

55    Further, as the Minister noted, in ARK16, the finding as to the sibling’s existence was based on information in a departmental file rather than information in the waiver application (see ARK16 at [32]-[33]). By contrast, in this case, the appellant has pointed to no finding made by the delegate that did not have its source in the information provided by the appellant (or in practice, by the appellant’s wife who made the application on his behalf). Thus it cannot be said that there was any critical information that was required to be, but was not, put to the appellant, before the delegate made a decision. Nor was the delegate required to disclose his deliberative processes: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]; Comcare v Wuth [2018] FCAFC 13 at [27].

56    Ms Baw argued that, by failing to inform the appellant of the apparent gaps that the delegate perceived in the claims, the appellant was not informed of the issues to be considered in conducting the inquiry. We do not accept that argument. The relevant issue was whether the appellant had demonstrated compelling or compassionate circumstances of the requisite kind. Ms Baw’s argument would have required the delegate, before making his decision, to disclose the alleged gaps that the delegate perceived in the claims so that the appellant might supplement his request. There is no authority for the existence of such an obligation.

57    Accordingly, we are not satisfied that the delegate denied the appellant procedural fairness in addressing the appellant’s concerns about returning to Pakistan.

58    Ms Baw did not identify any relevant failure on the part of the delegate to take into account relevant considerations in addressing the appellant’s concerns about returning to Pakistan.

59    It follows that proposed ground 2 must fail.

Conclusion

60    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    29 August 2018