FEDERAL COURT OF AUSTRALIA

Farhat v Minister for Immigration and Border Protection [2018] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 9 March 2017 be set aside and in place of those orders, order that:

(a)    there be a writ in the nature of certiorari removing into this Court to be quashed the purported decision of the respondent made on 20 November 2015;

(b)    there be a writ in the nature of mandamus requiring the respondent to consider the appellant’s application for waiver of the condition in Sch 8, cl 8503 of the Migration Regulations 1994 (Cth) according to law; and

(c)    the respondent pay the applicant’s costs of the application to the Federal Circuit Court of Australia filed on 18 December 2015, as agreed or taxed.

3.    The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia (Circuit Court) delivered on 9 March 2017. By that judgment, the Circuit Court dismissed the appellant’s application for judicial review of a decision made on 20 November 2015 by a delegate of the respondent Minister. The decision was to refuse the appellant’s request of 16 November 2015 to waive condition 8503 under s 41(2A) of the Migration Act 1958 (Cth) (Migration Act): see Farhat v Minister for Immigration and Border Protection [2017] FCCA 347 (Farhat CC). Condition 8503 was imposed on the appellant’s single entry tourist visa, being a TR676 tourist visa. The effect of the condition was to prevent the appellant from applying in Australia for another substantive visa (other than a protection visa) permitting him to remain in Australia.

2    The appellant was not legally represented either in this Court or the Circuit Court. The Minister was represented by counsel.

3    The appellant’s visa history is set out in the reasons for judgment of the learned Circuit Court judge: see Farhat CC at [3]-[6].

4    For the reasons stated hereafter, I would allow the appeal.

legislation

5    Section 41 of the Migration Act, which deals with conditions on visas, provides as follows:

(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    Subclause 676.613 of Schedule 2 of the Migration Regulations 1994 (Cth) (Migration Regulations) authorised the Minister to impose condition 8503 on the tourist visa. The condition provides:

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.

See the Migration Regulations, Schedule 8.

7    Regulation 2.05(4) of the Migration Regulations prescribes the circumstances, for the purpose of s 41(2A) of the Migration Act, in which the Minister may waive a condition of a kind described in s 41(2)(a) as follows:

(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.

delegate’s decision

8    Consistently with sound administrative practice and although he was under no statutory obligation to do so, the delegate provided reasons for the decision to refuse the appellant’s waiver request. In these reasons, the delegate concluded that the appellant did not meet the requirements in Regulation 2.05(4)(a):

[I]t was not accepted that since [the appellant was] granted a visa that was subject to the 8503 condition that circumstances have developed over which [he] had no control and resulted in a major change to [his] circumstances and are both compelling and compassionate.

9    The delegate accepted that the appellant’s claims were “of a compassionate nature” as he wished to remain with his partner in Australia and that “entering into a married relationship” as he had done constituted a major change to his circumstances. The delegate did not accept, however, that these circumstances were outside his control.

10    The delegate acknowledged that the medical evidence, provided by way of a report dated 22 May 2014 from Dr Ishrat Ali, a consultant psychiatrist, was to the effect that the appellant’s wife, Ms Salami, was suffering from a psychiatric condition and was in need of care. The delegate also noted that the appellant had become a father figure to Ms Salami’s youngest son. The delegate stated, however, that he did “not find that this represents compelling circumstances”, in the sense that they were sufficiently forceful to justify a decision to waive the 8503 condition. The delegate stated that he was not satisfied that the appellant’s circumstances were “substantially different to other families that are separated by their migration choices”. The delegate did not accept that the appellant met the requirements to waive the 8503 condition and, in particular, the delegate was not satisfied that, since the grant of the tourist visa, “compelling and compassionate circumstances have developed over which [the appellant] had no control” that resulted in a major change to his circumstances.

Circuit Court proceedings

11    As noted already, the appellant unsuccessfully sought judicial review of the delegate’s decision in the Circuit Court, on the stated grounds that:

1.    The Delegate of the Minister’s decision is affected by jurisdictional error in that the Delegate did not ask himself the correct question because he did not consider whether the applicant’s wife’s depression was a compelling and compassionate circumstance within the meaning of the Migration Act.

2.    The Respondent asked himself the wrong question by misconstruing the words “compelling and compassionate circumstances” in Regulation 2.05(4) of the Migration Regulations. The Delegate asked himself whether the applicant’s circumstances met the description of “compelling circumstances” as set out in the Department’s policy in substitution for the question posed by the Regulation, thereby restricting the plain meaning of “compelling”.

3.    The Respondent failed to understand the compelling circumstances of my wife as outlined in doctor’s report.

12    The Circuit Court judge noted that the appellant:

... lodged a request to waive compliance with Condition 8503 ... on the basis that in April 2014 he had married an Australian citizen, namely Ms Nahida Salami, whom he had first met in 2004 after his arrival in Australia and with whom he started living from September 2005 and that she suffered from medical problems and he was her carer. He needed to have Condition 8503 waived because unless it was, he could not apply for a Partner visa as he wished.

13    His Honour held that the first ground “in effect” sought merits review, which he could not undertake; and that, in any event, the delegate had “appropriately considered” whether Ms Salami’s depression was “relevantly a compelling and compassionate circumstance”.

14    His Honour found, with respect to the second ground, that the delegate correctly found that “it was within the control and volition of the [appellant] whether he entered into and took upon himself the responsibilities and status occasioned by his relationship and subsequent marriage with Ms Salami.” His Honour held that the delegate did not ask himself the wrong question in connection with the meaning of ‘compelling’ in Regulation 2.05(4).

15    Lastly, his Honour held that the third ground was misconceived and that there was “no evidence that the delegate failed to understand the medical circumstances of the [appellant’s] wife”. Accordingly, the appellant’s judicial review application was dismissed. The appellant appeals from that judgment.

the appeal to this court

16    The appellant’s notice of appeal raised the following two grounds:

1    His Honour ... failed to take into consideration my grounds of application and the evidence in support of my application which was lodged with the Federal Circuit Court of Australia.

2    His Honour ... had sufficient evidence yet misinterpreted the compelling circumstances which my wife and I share. While Dr Ishrat Ali’s, consultant psychiatrist, evidence was mentioned yet it was not considered in the proper terms even the long term relationship with my wife and my involvement was ignored as compelling.

The appellant’s waiver request

17    In his waiver request filed on 16 November 2015, the appellant wrote:

I met my wife, Nahida Salami, in 2004 and we started living together from 5 September 2005. At the time my wife was lonely and depressed as her ex-husband left Australia and her children also suffered, namely [X] now 16 years, [Y] now 23 years (he was a drug addict), [Z] who is 28 [years] and suffers serious medical condition, schizophrenia. I looked after my wife and I am her carer. She was seeing Dr Ishrat Ali, psychiatrist and I am supporting her in all aspects. I attach for your information copy of passport, medical report from Dr Jamal Rifi, report [from] Dr Ishrat Ali, marriage cert, Driver licence, DSP card, photos.

Please consider that my stepson [X] is very attached to me. I have been a father figure to him since he was very young. We previously lived in [another place].

18    As indicated above, various documents accompanied the appellant’s waiver request, including a marriage certificate, a health summary sheet for Ms Salami dated 7 November 2013, and a consultant psychiatrist’s report dated 22 May 2014 concerning Ms Salami.

19    The health summary sheet of 7 November 2013 prepared by Dr Jamal Rifi described Ms Salami as a disability pensioner and listed various conditions or events by year, including “2006    Depression – Reactive”. The summary also stated that she “Has three boys, ELDEST SUFFER FROM SCHIZOPHRENIA, YOUNGEST HAS ADHD.”

20    In his report of 22 May 2014, Dr Ishrat Ali, consultant psychiatrist, wrote that he first saw Ms Salami on 7 November 2011 and had seen her from time to time since then. Dr Ishrat Ali diagnosed that she had “recurring major depression with Dysthymia”. Under the heading “Diagnosis”, he further stated:

The main DSM IV diagnosis appears to be a recurring major depression and Dysthymia (chronic depression).

I have reached this conclusion by considering the following:-

1.    She has depressive symptoms which have worsened from time to time and they have included depressed moods, insomnia, irritability, poor concentration and difficulty in relaxing;

2.    The onset was around five years ago;

3.    She has been given medication although despite this some of her symptoms have persisted and they have definitely lasted for more than two years.

21    He opined that “[a]s she has recurrent depression when she is in a depressed phase she needs help in certain areas including looking after her personal hygiene, bathing and washing, cooking and grooming.” He added that “[a]s her partner [the appellant] has been looking after her and he has been providing the necessary help she needs care and I would recommend he be able to stay longer”.

The appellant’s submissions

22    The appellant did not file any written submissions in support of his appeal, although he appeared at the hearing of the appeal and substantially reiterated the account disclosed in the documents before the delegate. He stated that in 2005 he commenced living with Ms Salami and her three sons, then aged about 2 or 3, 10 and 17 respectively. Ms Salami was diagnosed with major depression in about 2011 (cf: Dr Ishrat Ali’s report) and, having no other person to support her, she relied on the appellant. The appellant helped her at home, did the shopping, and stood by her when there were problems. The appellant stated that the two older sons have taken drugs, and one of them has a serious mental health problem and the other can be violent. The youngest son, with whom the appellant had a close relationship, was doing well.

23    The appellant agreed that his claim was in substance that he and Ms Salami had been in a close relationship since 2005; she had become ill with depression, and that the appellant had become her carer as well as becoming responsible for her youngest son.

The Minister’s submissions

24    In written submissions, the Minister submitted that the Circuit Court judge had addressed the appellant’s judicial review grounds “comprehensively” and that his reasons disclosed no error. The Minister submitted that the present case was “quite distinguishable on the facts” from the decision in Karan v Minister for Immigration and Border Protection [2017] FCA 872 (Karan). The Minister submitted that the authorities clearly supported the approach applied by the delegate and that the appeal should be dismissed, there being no error in the judgment under appeal.

25    In oral submissions, counsel for the Minister drew attention to what she referred to as “the only reference to the wife’s medical condition in the actual initiating document” and submitted that “there is very little in the psychiatric report that evidences an inability, in practical terms, to care for herself”. Counsel further submitted that this case was different from Karan because “all the evidence that was provided was reviewed and considered by the delegate”. Counsel added that the authorities recognised that “simply being married or having a relationship is not in itself compelling, ... the point that was being made is that choosing to enter a relationship in the knowledge that you had no legal right to stay and that could cause difficulties in the future is not something that is beyond a person’s control”.

consideration

26    The sole question in this appeal is whether the delegate understood and addressed the claim that the appellant in fact made in support of his request for waiver of the 8503 condition. This was the gist of the appellant’s grounds of appeal and the substance of grounds 1 and 3 of his application for judicial review in the Circuit Court.

27    A number of issues can therefore be put aside. I accept the Minister’s submission that there was no error disclosed in this case in the delegate’s statement that the word “compelling” was to be given its ordinary meaning and that, in the present context, “compelling” circumstances referred to circumstances that were “sufficiently forceful” to lead the decision-maker to waive the 8503 condition. There was no error in this regard on the part of the Circuit Court judge. Indeed, on the appeal, the appellant did not pursue his challenge to this aspect of the delegate’s decision.

28    A marriage certificate included in the documents attached to the appellant’s statement of reasons for waiver showed that he had married Ms Salami in April 2014. I accept the Minister’s submission that there was no error disclosed in the delegate’s statements that “entering into a married relationship, including cohabiting, constitutes a major change to [the appellant’s circumstances” and “the mutual decision to pursue a relationship in the full knowledge that [the appellant’s] migration status was not resolved” was “a situation ... entered into voluntarily” and therefore did not constitute circumstances “over which [the appellant] had no control” within the meaning of Regulation 2.05(4). There was also no error in this regard on the part of his Honour.

29    The claim made by the appellant to support his waiver request was not, however, primarily about his marriage to Ms Salami. At the time he made his waiver request, the appellant’s claim (as appearing in his statement of reasons for waiver in Form 1447 and in the documents that he attached to this statement) was in substance that his relationship with Ms Salami had commenced some ten years ago; that about six years ago a psychiatrist (Dr Ishrat Ali) diagnosed his wife as having recurring major depression and Dysthymia (chronic depression); and that his wife remained under the psychiatrist’s care. In this context, it was important to appreciate that he claimed to be Ms Salami’s carer, a claim that was supported and explained in the report by her consulting psychiatrist included in the attached documents. In this report, Dr Ishrat Ali stated that Ms Salami needed help with “personal hygiene, bathing and washing, cooking and grooming” when she was in a depressed phase and that the appellant was looking after her and “providing the necessary help she needs” (emphasis added). A further part of the appellant’s claim drew attention to some related family concerns, including that Ms Salami’s eldest son suffered from schizophrenia and that the appellant had a close relationship with her youngest son. Dr Rifi’s health summary sheet, which was also included in the attached documents, stated that her youngest son suffered from ADHD. The health summary sheet also referred to the appellant’s wife as a “disability pensioner”.

30    The delegate’s provision of reasons for his decision assists in ascertaining whether the delegate understood and addressed the substance of the appellant’s claim. Though nothing turns on the point, I note that the statement of reasons given by the delegate for his decision was in the same or very similar terms to a submission dated 17 November 2015 and prepared by a Departmental officer for the delegate’s assistance, which the delegate accepted.

31    As the Court said in Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [55]:

Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error …

32    Further, I agree with the statement of Siopis J in Karan at [28] that “[t]here is an important difference between a decision-maker being aware of a document and its contents, and understanding and addressing the claim which is made in the document”: see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58] (Sackville J).

33    The delegate’s reasons indicate that the delegate was aware of the documents, including the medical evidence, provided by the appellant in support of his waiver request. The delegate’s reasons specifically noted that Dr Rifi’s health summary sheet and Dr Ishrat Ali’s report were among the documents provided to him. Further, whilst the delegate did not refer to the health summary sheet in any other context, he specifically acknowledged Dr Ishrat Ali’s report and set out his opinion that Ms Salami was suffering from “a psychiatric condition and ... is in need of care” and “help in certain areas including personal hygiene, bathing and washing, cooking and grooming”.

34    When considered as a whole, however, it does not seem to me that the delegate appreciated the nature of the appellant’s case and addressed the case the appellant sought to make. This is reflected at key points in the delegate’s reasons.

35    As already noted, at the outset, the delegate focussed on the significance of the appellant’s marriage to Ms Salami, stating that:

I accept that your claims are of a compassionate nature as you wish to remain with your partner in Australia. I also accept that entering into a married relationship, including cohabiting, constitutes a major change to your circumstances. However, I find that your current circumstances were not outside of your control. I must take into account that you and Ms Salami made the mutual decision to pursue a relationship in the full knowledge that your migration status was not resolved. This is a situation that is not regarded as being beyond your control as this is an arrangement that you have entered into voluntarily.

36    That is, although accepting the appellant’s claims were “of a compassionate nature” (cf: Reg 2.05(4)(a)) and that marriage was “a major change” in his circumstances (cf: Reg 2.05(4)(a)(ii)) the delegate held that the appellant failed to satisfy Reg 2.05(4)(a)(i) because his marriage was not a circumstance over which he had no control.

37    It is clear, however, from the appellant’s statement of reasons for waiver in Form 1447 and in the documents that he attached to this statement that he was not advancing his marriage in 2014 as the principal reason for his waiver request. Although he properly included his marriage certificate amongst the documents accompanying his request and referred to Ms Salami as his wife, he did not rely on the fact of his marriage to her the previous year. His case was not just that he did not want to be separated from his wife. Rather, his case was in substance that Ms Salami, who had been his partner for over a decade, had a mental illness (as identified in the psychiatric report accompanying his reasons) and that he provided her with the care she needed.

38    The appellant’s stated reasons included that he was his wife’s carer and that he supported her “in all aspects”. Although he may have expressed himself more clearly, the context in which these statements appeared indicated that the appellant was referring to the care and support that Ms Salami needed as a consequence of her mental illness. This is evident from the fact that after his statement that “I am her carer”, the appellant referred to her “seeing Dr Ishrat Ali, psychiatrist” and added “I am supporting her in all aspects”. As already noted, these statements were accompanied by Dr Ishrat Ali’s report and Dr Rifi’s health summary sheet. The psychiatrist’s report explained and corroborated the appellant’s case. The report identified that Ms Salami was suffering from “recurring major depression and Dysthymia (chronic depression)” and that she had experienced the onset of this condition in 2011, some six years after the appellant’s relationship with her had commenced. The report also stated that in a depression phase she needed help with certain basic daily activities, which the appellant provided, and that she continued to see the psychiatrist from time to time.

39    In considering whether or not the appellant’s waiver request satisfied the requirements of Reg 2.05(4)(a)(i) and (ii) the delegate did not address the appellant’s claim that his partner since 2005 had been suffering mental illness (of the kind identified in Dr Ishrat Ali’s report) since 2011, and that the appellant provided her with the requisite care. Had the delegate appreciated and addressed the appellant’s claim at this point, the delegate would have been required to consider whether the appellant’s provision of care and support to meet Ms Salami’s need consequent upon her illness constituted compelling and compassionate circumstances that had developed since the grant of the appellant’s tourist visa over which the appellant had no control and that resulted in a major change to his circumstances. It is clear that the delegate did not do so.

40    It is true that, as counsel for the Minister submitted and I have already noted, the delegate referred to Dr Ishrat Ali’s report and set out part of his opinion. Having done this, however, the delegate stated:

Whilst I accept that your partner experiences feelings of anxiety and stress and at times, this impacts her ability to maintain self-care I am not satisfied that this represents compelling circumstances.

I also acknowledge your claims that you have been a father figure to Ms Salami’s youngest son ... and that he is attached to you, however, I do not find that this represents compelling circumstances.

... I have considered the reasons and information provided in your waiver request and I am not satisfied that they are sufficiently forceful to make a decision to waive your condition. I am not satisfied that your circumstances are substantially different to other families that are separated by their migration choices.

41    The delegate’s statements that he accepted that Ms Salami “experiences feelings of anxiety and stress” also indicates a fundamental failure to understand the case the appellant sought to make for the waiver of the 8503 condition. The psychiatric diagnosis was “recurring major depression and Dysthymia (chronic depression)”, not “anxiety and stress”. It is common enough for a person to suffer from stress and anxiety in daily life, but this does not mean that a person suffering stress and anxiety is mentally ill. Had Ms Salami suffered merely from stress and anxiety, then the delegate’s conclusion that he was not satisfied that the appellant’s “circumstances are substantially different to other families that are separated by their migration choices” might have been in keeping with the terms of the supposed reasons for waiver request. This was not, however, the relevant psychiatric diagnosis. Further, the medical assessment was that in a depression phase Ms Salami required help in some basic activities of daily living, and that the appellant was meeting her needs.

42    Had the delegate appreciated that this was the appellant’s case, he might also have addressed the other family concerns to which the appellant’s claim referred, including that Ms Salami’s eldest son suffered from schizophrenia. Had he understood the appellant’s case, the delegate might also have made a different assessment of the significance of the relationship between the appellant and his youngest step-son. The delegate might also have reached a different view about the appellant’s circumstances compared with “other families that are separated by their migration choices”.

43    Although there are factual differences between this case and Karan, there are some important similarities in the decision-making process. Like this case, Karan involved an appeal to this Court from the dismissal by the Circuit Court of a judicial review application regarding a refusal to waive a 8503 condition attached to a tourist visa. Siopis J held (at [30]-[31]) that the delegate in that case “did not appreciate the nature of the case being made”, which was that the appellant’s pregnant wife was “a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues”. His Honour observed (at [30]) that “the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation”. It was, as his Honour stated (at [27]) “incumbent on the delegate to understand the claim which was being made in support of the application for the waiver and to address that claim” and the delegate’s failure to understand and address that claim disclosed jurisdictional error. Accordingly, his Honour upheld the appeal and set aside the delegate’s decision.

44    As I have said, the appellant’s case here was not simply that he wanted to remain with his wife in Australia; that she suffered from stress and anxiety; and that he wanted to maintain his relationship with his youngest step-son. His case was a different one: at the centre of his case was his wife’s mental illness and her need for his ongoing care and support in aspects of daily living; and in this context his case properly embraced the situation of other family members. In my view the delegate did not understand and address the case that the appellant sought to make in support of his request to waive condition 8503 and the Circuit Court judge erred in rejecting the appellant’s submissions in this regard.

45    For the reasons stated, I would uphold the appeal and make orders in the nature of writs of certiorari and mandamus. I would also order that the Minister pay the appellant’s costs of the appeal, and of the application to the Circuit Court.

Associate:

Dated:    14 February 2018