FEDERAL COURT OF AUSTRALIA

SZSUI v Minister for Immigration and Border Protection [2017] FCA 467

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The appellant is a citizen of Egypt who arrived in Australia on 5 March 2011 on a Visitor (Subclass 676) visa. The appellant has remained in Australia ever since, notwithstanding that his visitor visa expired on 5 June 2011. It would appear that he is currently on a bridging visa. Since arriving in Australia, the appellant has married an Australian citizen. He apparently wishes to apply for a partner visa so he can remain in Australia indefinitely. The issue for the appellant, however, is that his visitor visa was subject to Condition 8503, commonly referred to as a “no further stay” condition. That condition provides that “the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”.

2    The Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) provide a mechanism by which a visa holder can apply to the Minister for Immigration and Border Protection for the waiver of Condition 8503 in certain circumstances. The appellant has unsuccessfully applied for the waiver of Condition 8503 five times. The fifth waiver application is the subject of these proceedings.

3    A delegate of the Minister refused the appellant’s fifth waiver application. The appellant challenged that decision in judicial review proceedings in the Federal Circuit Court of Australia. That application was unsuccessful. He has now appealed the judgment of the Circuit Court.

4    For the reasons that follow, the appeal must be dismissed.

Relevant Statutory Provisions

5    Section 41 of the Migration Act, which gives the Minister the power to both impose conditions on visas, and to waive such conditions, is in the following terms:

41 Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

General rules about conditions

(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

…

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

6    The relevant “prescribed circumstances” for the purposes of s 41(2A) are contained in regulation 2.05 of the Migration Regulations, which provides as follows:

2.05 Conditions applicable to visas

…

(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.

7    The application and operation of those provisions has been considered in a number of cases in this Court. Those cases were reviewed by Flick J in Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [9]-[10]. The issues raised by this appeal do not, however, warrant any detailed consideration of the construction or application of the provisions.

The previous waiver REQUESTS

8    The appellant’s interactions with the Department of Immigration and Border Protection since the expiry of his visitor visa have been substantial. Prior to the appellant’s waiver requests, he applied for a protection visa on the basis that he feared harm if he was to return to Egypt. That application was refused by a delegate of the Minister on 23 March 2012. That refusal was affirmed by the Refugee Review Tribunal on 2 July 2012. The appellant then made an unsuccessful application for the Minister to personally intervene in his case and grant him a visa.

9    The appellant lodged his first request for the waiver of Condition 8503 on 2 October 2012. The first request was sought on the basis that his wife, an Australia citizen, was emotionally and physically dependent on the appellant, and continued to suffer many medical issues as a result of a motor vehicle accident in 1988. The appellant also claimed that he was reluctant to return to Egypt due to the political and civil unrest which would put his life in grave danger.

10    The first waiver request was refused on 25 October 2012. The delegate who made that decision noted that the appellant had been the subject of an unsuccessful protection visa application relating to his concerns for his safety if he was to return to Egypt. The delegate found that no new information had been provided to indicate that the appellant’s personal health and well-being would be jeopardised if he was to return to Egypt. Likewise, the delegate found that the circumstances of the appellant’s marriage were not “beyond his control” and that his wife’s injuries were in existence before he arrived in Australia. Finally the delegate found that no evidence had been provided to show that the appellant’s wife would not continue to receive care and assistance from her immediate family.

11    The appellant lodged a second waiver request on 13 November 2012. This time, the appellant provided a psychological assessment report in relation to his wife, in support of his claim that she was emotionally and psychologically reliant on him. The second request was refused on 28 November 2012. The delegate was not satisfied that the claims in the second request were substantially different from those in the first waiver request, and found that the claims were not otherwise substantiated on the material. An application for judicial review to the Federal Circuit Court in respect of the second waiver request was dismissed on 23 April 2013.

12    Following another unsuccessful application for Ministerial intervention, the appellant lodged a third waiver request on 14 January 2014. With this waiver request, the appellant provided new evidence from his wife’s mother to the effect that his wife could no longer be cared for by her family and that, without the appellant, his wife would have to give up her independence. Again, a delegate of the Minister was not satisfied that the reasons provided in the third waiver request demonstrated compelling circumstances. While the delegate acknowledged that the appellant had lightened the load of his mother in law by caring for his wife, allowing his mother-in-law to care for her other children, the delegate concluded that this did not prove why the previous caring arrangements for his wife could not continue in his absence. The third waiver request was refused on 10 February 2014.

13    Undeterred, the appellant made a fourth waiver request on 8 April 2014. This time, the appellant provided medical evidence regarding his treatment and recovery following multiple eye operations in late 2013. The delegate was satisfied that these reasons were substantially different to those in the appellant’s previous waiver applications. However, the delegate did not accept that the medical evidence established that the appellant was compelled to remain in Australia. The fourth waiver request was refused on 8 April 2014.

The extant WAIVER REQUEST decision

14    The fifth waiver request, which was the subject matter of the judgment under appeal, was lodged by the appellant on 1 July 2014. It was refused by a delegate of the Minister on 18 July 2014.

15    The delegate’s reasons provided an overview of the appellant’s previous four waiver requests and the bases on which they were refused. The delegate noted that in the appellant’s fifth waiver request, he provided additional evidence that his wife required a carer. The delegate acknowledged that the appellant’s wife had suffered from numerous medical issues since she was involved in a car accident in 1988, and that the appellant had provided medical evidence to support his claim that his wife relied on his care for daily tasks. The delegate also acknowledged that the appellant provided medical evidence relating to his own eye injury.

16    However, the delegate was not satisfied that those circumstances were substantially different to those considered in the previous unsuccessful waiver requests. The delegate otherwise found that, while the claims were compassionate in nature, they did not constitute circumstances of a compelling nature that were outside the appellant’s control. The delegate therefore determined that the requirements for the waiver were not met.

THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT

17    The appellant sought judicial review of the delegate’s decision in the Federal Circuit Court by an application filed on 28 July 2014. His grounds of review were in the following terms:

1.    The Delegate of the Minister failed to assess my wife’s needs which cannot be met by anybody else and that I am the only carer for my wife.

2.    The Delegate misunderstood the care my wife needs and the definition and meaning of compelling and compassionate circumstances.

3.    My wife suffers permanent depression, permanent left upper limb paralysis, permanent right lower limb weakness, kyphoscoliosis, respiratory infections, dizziness, headaches and permanent left horner’s syndrome.

4.    The Delegate ignored the contents of my wife’s letter dated 18 June 2014.

18    In relation to the first ground, the primary judge held that the appellant’s contention overlooked the delegate’s acknowledgement of the medical evidence regarding his wife’s needs and the contents of the departmental minute that had been provided to and considered by the delegate. The primary judge also found that, in any event, the delegate could not have waived Condition 8503 in light of the finding that the circumstances were not substantially different to those considered in the previous waiver requests. The appellant did not challenge that finding or otherwise suggest that the circumstances were in fact different.

19    The primary judge held that the second ground failed for essentially the same reasons. In relation to the contention that the delegate misunderstood the meaning of “compelling and compassionate circumstances”, the primary judge noted that this assumed both that compelling and compassionate circumstances existed, and that those circumstances had not been considered in the context of the earlier unsuccessful waiver requests. However, the delegate was not persuaded that the circumstances were different from those which had already been considered in the earlier requests. The primary judge found that it was not apparent that this finding by the delegate was erroneous in any sense.

20    The primary judge noted that the third ground did not allege any error on the part of the delegate. To the extent that the ground implied that the delegate did not take the particularised matters into account, the primary judge did not accept that this was so. The primary judge also noted again that the appellant had not suggested that those matters had not been considered before in the context of the earlier waiver requests.

21    Finally, the primary judge rejected ground four, noting that the letter from the appellant’s wife had been expressly referred to by the delegate in the refusal notification. It was also referred to in the departmental minute that was provided to the delegate.

22    As the primary judge was not persuaded that the delegate’s decision was affected by jurisdictional error, the application was dismissed with costs.

The grounds of Appeal

23    The appellant’s notice of appeal raised the following four grounds:

1.    I have only received the Order of His Honour Judge Cameron who dismissed my case and ordered me to pay the Respondent’s costs.

2.    As I have not received the Judgment I wish that the Federal Court of Australia will consider this review as I believe that there are compelling circumstances in my case.

3.    The Respondent engaged the services of a Barrister while I was representing myself and I am hoping this time to get legal advice because the evidence on file should support my request to establish compelling circumstances and I do believe that the Delegate failed to understand my compelling circumstances.

4.    It was also confusing that I did not have the Respondent’s submission when I appeared in Court then the interpreter quickly read it for me and I was not in a position to defend myself properly.

Merits of the appeal

24    As can readily be seen, the grounds of appeal do not directly challenge, or otherwise engage with, the judgment or reasons of the primary judge. Nor do they articulate any proper or persuasive grounds of appeal.

25    The appellant did not file any written submissions, despite being directed to do so. He appeared unrepresented at the hearing of the appeal. While he made brief oral submissions, those submissions did not significantly advance his case.

26    The appellant’s oral submissions were not directed to his grounds of appeal. Rather, his submissions were generally directed to the merits of the refusal of his waiver requests. He noted in that regard that he was aware of cases where other visa applicants had successfully applied to have Condition 8503 waived. He said that he did not understand why his case was different. Indeed, he said that his circumstances were stronger than the circumstances in those other cases. Accordingly, he did not know how or why the delegate had decided his case in the way it was decided. The appellant also made a number of submissions concerning what he said were the compelling circumstances of his case.

27    The merits of the appellant’s grounds of appeal may be dealt with in short terms.

28    Grounds 1 and 2 do not raise any proper grounds of appeal. The appellant appears to complain that he does not have the judgment of the primary judge, or at least did not have it at the time he filed his notice of appeal. It may be accepted that the appellant did not have the judgment in written form when he filed his notice of appeal. The notice of appeal was filed on 14 December 2016. The reasons were not published in written form until 20 December 2016. It does not follow, however, that the appellant has any cause for complaint, let alone any avenue of appeal arising from that circumstance.

29    The appellant was apparently present when the primary judge delivered his judgment, ex tempore, on 24 November 2016. He also had ample time to consider the written judgment once it was published on 20 December 2016. On 3 January 2017, a Registrar listed the appeal for hearing. There is no indication that the appellant complained to the Registrar that he did not have a copy of the primary judge’s judgment by that time. Nor did the appellant apply for leave to file an amended notice of appeal on the basis that he had only recently obtained the written judgment.

30    The contention, in ground 2, that there are “compelling circumstances” in the appellant’s case amounts to nothing more than an attempt to have the Court engage in impermissible merits review.

31    Ground 3 also does not raise any proper appeal ground. The appellant was not legally represented in the Circuit Court. Nor was he apparently able to secure legal representation for this appeal. That is perhaps unfortunate, but does not provide him with any avenue of appeal.

32    The contention in ground 3 that the delegate misunderstood the appellant’s circumstances is little more than a re-agitation, albeit in slightly different terms, of some of the arguments that the appellant apparently advanced before the primary judge. It is readily apparent that the primary judge rejected any contention that the delegate misunderstood the appellant’s circumstances. The appellant has not sought to demonstrate why the primary judge was wrong in so concluding. A fair reading of the delegate’s reasons reveals that the delegate did not misunderstand the appellant’s circumstances. Rather, the delegate found that, not only were the circumstances not substantially different from those considered in the appellant’s four previous waiver requests, but they were not compelling.

33    Ground 4 appears to contend that the appellant was not afforded procedural fairness at the hearing in the Circuit Court because he was not provided with the Minister’s written submissions prior to the hearing. He claimed that the submissions were only “quickly” interpreted to him at the commencement of the hearing. There are a number of problems with that contention. First, it was unsupported by evidence. The appellant did not apply for leave to rely on evidence in support of his appeal: r 36.57 Federal Court Rules 2011 (Cth). Even putting such formalities aside, the appellant did not seek to file or serve an affidavit deposing to the facts relied on in relation to this ground. Nor did the appellant tender the transcript of the hearing. There is no evidence that the appellant raised any concern before the primary judge that he was not able to make appropriate submissions because he had not been given sufficient time to consider the Minister’s written submissions. Nor is there any evidence that he sought further time to consider the submissions.

34    It should also be noted that the Minister’s submissions were wholly responsive to the appellant’s grounds of review. The appellant was not required to “defend” himself. Rather, he was required to make out his case. The appellant appears not to have filed any written submissions. At the hearing in the court below, the appellant would no doubt have been given the opportunity to make oral submissions in support of his application before the Minister made any oral submissions. The appellant would then have had a right of reply. There is no evidence to suggest that the Minister’s counsel did not make oral submissions along the same lines as the written submissions, or that the appellant was not given a fair opportunity to reply to those submissions. In those circumstances, the fact, if it be a fact, that the Minister’s written submissions were only “quickly” interpreted to the appellant shortly prior to the hearing would be largely immaterial.

35    At the hearing of the appeal, the Minister was granted leave to rely on affidavit evidence which indicated that the Minister’s legal representatives sent the appellant a copy of the Minister’s written submissions by express post to his address for service a week before the Circuit Court hearing. That evidence was not challenged or contested. Thus, it would appear, contrary to the apparent suggestion in appeal ground 4, that the appellant did receive the written submissions well prior to the hearing. If the appellant did not take any steps to have the submissions read or interpreted to him when he received them, or at any time prior to the commencement of the hearing, that was his choice.

36    In any event, the Minister’s written submissions in the Circuit Court were very short and to the point. The substance of the Minister’s submissions comprised four paragraphs, one paragraph for each of the grounds of review. Even if the appellant only had the submissions interpreted to him at the hearing, it cannot be accepted that he was not fairly put in a position whereby he could make submissions in support of his case.

37    The apparent suggestion that the appellant was denied procedural fairness has no basis and is rejected.

38    As for the matters raised by the appellant in his oral submissions, the fact that he was aware of other cases that were decided differently does not provide him with a valid ground of appeal. Each case concerning a request for a waiver of Condition 8503 must be considered having regard to the particular facts and circumstances of that case. It was for the appellant to persuade the Minister, by his delegate, to waive Condition 8503, having regard to the particular facts and circumstances of his case. He failed to do so. It was for the appellant to demonstrate to the primary judge that the delegate erred in a jurisdictional sense in deciding his case. He failed to do so. The primary judge found that the delegate did not make any jurisdictional error in deciding his case. The appellant failed to demonstrate that the primary judge erred in so concluding.

39    The other arguments advanced by the appellant in his oral submissions could fairly be characterised as amounting to little more than a challenge to the merits of the delegate’s decision. As was explained to the appellant at the commencement of the hearing of his appeal, the Court does not have jurisdiction to simply reconsider or review the merits of his request for waiver of the condition. Nor, for that matter, did the Circuit Court.

Conclusion and disposition

40    The appellant has failed to make out any of his grounds of appeal or otherwise impugn the judgment of the primary judge. The appeal is dismissed. The appellant did not advance any argument for why the costs of the appeal should not follow the event. Accordingly, it is appropriate that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    19 May 2017