FEDERAL COURT OF AUSTRALIA

SZRSX v Minister for Immigration and Border Protection [2018] FCA 810

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court are set aside and in lieu thereof order that the decision of the delegate dated 31 August 2017 be quashed.

3.    The application for a waiver of the no further stay condition 8503 be returned to the Minister for determination according to law.

4.    The Respondent shall pay the appellant's costs of the appeal and the costs of the application to the Federal Circuit Court.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant seeks to appeal from a decision of the Federal Circuit Court made on 2 November 2017. In that decision the learned judge at first instance dismissed the appellant’s application by which she sought to review a decision of the delegate of the Minister made on 15 August 2016. That decision refused her request for a further waiver of the “no further stay” condition 8503 attached to her visa.

Background

2    In the learned Federal Circuit Court judge’s reasons the background circumstances were taken from paragraphs [4] to [8] of the Minister’s written submissions before that Court. These submissions accurately set out the background to the matter, and I adopt those undisputed facts as follows:

[4]    The Appellant is a citizen of Fiji. She arrived in Australia on 16 May 2011 as the holder of a Visitor TR676 visa (Tourist visa), which was imposed with Condition 8503.

[5]     On 12 July 2011, the Appellant lodged a Protection visa [application] based on alleged sexual assaults in Fiji that she claimed were perpetrated by her workplace supervisor (first Protection visa application). The first Protection visa application initially also included the Appellant's ex-husband, who later filed his own claims. On 30 September 2011, this application was refused by a delegate of the Minister. On 20 March 2012, the delegate's decision was affirmed by the (then) Refugee Review Tribunal (RRT). On 11 February 2013, the Appellant's application for review before the then Federal Magistrates Court was dismissed.

[6]     On 14 February 2014, pursuant to the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the Appellant made a second application for a Protection visa. On 17 June 2014, that application was refused by a delegate of the Minister. On 13 May 2015, the Administrative Appeals Tribunal affirmed the delegate's decision. On 22 March 2016, the Appellant's application for judicial review before the Federal Circuit Court of Australia was dismissed. On 3 August 2016, the Appellant's application for an extension of time and leave to appeal to the Federal Court of Australia was dismissed.

[7]     On 15 August 2016, the Appellant sought a waiver of the 'No Further Stay' Condition 8503. On 31 August 2016, the Delegate refused that Application. On 6 September 2016, the Appellant commenced the present proceedings.

[8]    On 24 November 2016, the Appellant lodged a third protection visa application (third Protection visa application) with her ex-husband. On 14 December 2016, a delegate for the Minister refused the third Protection visa application on the basis of s.48A of the Act, which prevents the making of further applications for protection visas. On 3 January 2017, the appellants filed an application for review with the Federal Circuit Court in respect of that decision.

3    The condition 8503, which was imposed on the appellant’s tourist visa, is referrable to s 12A of the Migration Act 1953 (Cth) (the Act), which identifies it as:

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.

4    Section 41(2A) of the Act permits the Minister to waive this condition, although the circumstances in which the Minister might do so are controlled by the Migration Regulations 1994 (Cth) and, in particular, reg 2.05(4) 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.

5    Neither the delegate nor the learned judge at first instance were assisted greatly in this matter by any substantive submissions by or on behalf of the appellant. The reasons she sought to advance in her application for a waiver were somewhat Delphic. They were as follows:

I ask the Department to waiver my 8503 condition to enable me to lodge a partner visa in Australia. I wish also to draw your kind attention to the fact that my life is at risk if a lodge my application offshore because of the reasons outlined in my application for refuge dated 20/3/2013.

I attach to my application evidence of the filing

•    rent receipts

•    copy of passport

•    electricity bills

•    RRT decision.

6    Before the delegate, as was accepted by the learned judge at first instance, the application gave rise to two sets of changed circumstances which underpinned the request for waiver. The first was that the appellant had re-established her relationship with her former partner in respect of whom she wished to apply for a partner’s visa (see particularly paragraph 10 of the reasons of the learned judge below). To some extent the delegate quite properly distilled that ground from the broader proposition that the appellant wished to apply for a partner visa. Secondly, the appellant asserted that her life would be at risk if she returned to Fiji for the reasons she had set out in her earlier application for a protection visa.

Requirements of the legislation

7    For present purposes the operation of s 41(2A) and reg 2.05(4) of the Regulations, are to the effect that the Minister’s discretion will be enlivened in the circumstances where the following matters are satisfied:

(a)    Since the granting of the original visa, circumstances have developed; and

(b)    Those circumstances are both compelling and compassionate; and

(c)    The appellant had no control over those compelling and compassionate circumstances which developed; and

(d)    The compelling and compassionate circumstances resulted in a major change to the person’s circumstances; and

(e)    Where the Minister has previously refused to waive the condition, the Minister is satisfied that the new compelling and 15 May 2018compassionate circumstances which developed are substantially different from those considered previously; and

(f)    The person has asked the Minister to waive the condition in writing.

8    Counsel for the Minister, very properly, did not dispute that the section operated in that manner.

9    Each of the above criteria, to which I will refer to as “the s 41(2A) criteria”, needs to be satisfied prior to the Minister’s discretion being enlivened; see Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1529 [7]. In this case only the first four need be considered as Counsel for the Minister acknowledged that the remaining two were satisfied.

The decision of the delegate

10    The learned judge below correctly identified the structure of the delegate’s decision based upon the claimed two new circumstances advanced by the appellant. The delegate decided:

(1)    First, that the appellant’s desire to apply for a partner visa with her former husband indicated that she had resurrected her erstwhile relationship with him (the “Partner Visa ground”). However, it was determined that this was not a circumstance that had developed since the appellant was originally granted a tourist visa because she was previously married to her former husband when in Fiji.

(2)    Secondly, that the appellant raised her fear of harm were she be required to return to Fiji by reason of the circumstances described in her application for a protection visa (the “Protection Visa ground”). The delegate determined that these circumstances existed prior to the granting of her tourist visa and, therefore, could not have been a major change to the appellant’s circumstances.

(3)    Thirdly, the decision to apply for a partner visa with her former husband was a circumstance over which the appellant had control.

(4)    Fourthly, the circumstances put by the appellant in relation to the alleged sexual assaults in Fiji were compassionate but not compelling.

Decision of the Federal Circuit Court

11    The Federal Circuit Court was also not greatly assisted by submissions on behalf of the appellant. Neither the grounds of the application nor anything else provided gave any clear indication to the learned judge below of the critical issues in the matter. This was exacerbated by the fact that the appellant required a Fijian Indian language interpreter in order to advance her case.

12    It appeared that the arguments which were advanced to the Federal Circuit Court distracted the Court from identifying any difficulties with the delegate’s decision. In particular, the learned Federal Circuit Court judge was diverted towards a consideration of how the delegate was informed that the person in respect of whom the appellant was wishing to seek a partner visa was in fact her ex-husband. Ultimately, that was an irrelevant issue.

13    In any event, the application to the Federal Circuit Court was rejected.

Consideration

14    The decision of the delegate is brief, but that is not a criticism. The process adopted by the delegate was to identify those elements of the s 41(2A) criteria which each of the alleged grounds did not satisfy. He did not identify those criteria which the grounds did satisfy. This can be best seen in the statement in the reasons, “I have addressed the requirements as relevant to the case, in particular addressing those that have not been met below.” Thereafter, the delegate identified the requirements in respect of each claim which did not meet the relevant section 41(2A) criteria.

The Partner Visa ground

15    The difficulty in relation to the Partner Visa ground is that it was poorly articulated by the appellant. Despite that, the delegate accurately identified it as being that she had reunited with her ex-husband. It was that claimed resurrection of an erstwhile relationship was the relevant newly developed circumstance.

16    On a fair reading of his reasons, the delegate misapplied the s 41(2A) criteria in relation to this new claim. Although the delegate did identify the new relationship with the husband was the relevant change of circumstance, he apparently misunderstood the nature of the requirements of s 41(2A) and the accompanying regulations. The question to be asked in that respect was whether the new circumstances had developed since the person was granted the visa which was subject to the condition. The delegate appeared to consider that because the appellant had previously had a relationship with her ex-partner prior to the granting of the relevant visa, there was no change or any newly-developed circumstance. That approach misconstrues the requirement of the section, and in particular the temporal requirements concerning the new circumstances. The delegate appears to have considered that if the appellant, after the issue of the relevant visa, entered into a relationship with a person with whom she had previously had a relationship that would not be a changed circumstance because it is similar to her earlier personal circumstances.

17    As the material before the delegate showed, the appellant entered Australia on 6 May 2011 on a tourist visa. At that time she had divorced her husband and did not live with him. It can be assumed that she, in fact, had no close personal relationship with him and he was not then her partner. Therefore, at the time of the granting of the tourist visa, the appellant was not a person who was in a relationship with any other person. By reason of the appellant indicating her intention to lodge a “partner visa”, it can be inferred – and indeed it was inferred – that she had renewed her relationship with her ex-partner. It is the renewal of the relationship which was the developed circumstance. The existence of that relationship was not part of the appellant’s circumstances at the time of the granting of the tourist visa.

18    It follows that the delegate has misconstrued the requirements of reg 2.05(4), which necessitated consideration of the circumstances which have developed. The regulation does not exclude newly-developed circumstances which may be similar to those which may have existed prior to the granting of the original visa.

19    Apart from misconstruing whether or not the rekindled relationship was a newly-developed circumstance, the delegate did not address the other requirements of the s 41(2A) criteria. In particular the delegate did not address the requirement of whether the appellant’s rekindling of her relationship with her husband was a compelling and compassionate circumstance although it might be inferred, albeit hesitantly, that he considered that it was. However, the delegate did not consider the application of the requirement that the identified developed circumstance be one over which the person had no control to the Partner Visa ground. The difficulty encountered by the delegate was that this requirement was applied to the decision of the appellant to lodge a partner visa. He found, correctly, that was not outside the appellant’s control, however the delegate ought to have considered whether the newly-rekindled relationship was a circumstance over which the appellant had no control. The delegate did not turn his mind to this issue.

20    The delegate also did not consider whether the developed circumstances of the rekindled relationship resulted in a major change to the appellant’s circumstances. Again it might be assumed that if he considered the question at all, he may have believed that such was the case. There is no need for me to consider the other elements of the s 41(2A) criteria in relation to the Partner Visa ground. It suffices to say that the identification of that changed circumstance by the delegate had the consequence that all of the criteria ought to have been applied to it. To the extent to which the criteria were applied, there was, as I have indicated, an error of law by the misapplication of reg 2.05(4)(a) and to that extent there has been a jurisdictional error in the decision.

The refugee status ground

21    The delegate dealt with the Refugee Status ground in a similar way to the manner in which he dealt with the Partner Visa ground. That is, he identified where the ground did not comply with the requirements of the regulation. He did not go on to identify where the ground did comply with the requirements.

22    The first criteria to be applied was whether the circumstance had developed since the visa was granted. Unusually, the delegate did not specifically refer to this ground, although it is immediately apparent the Protection Visa ground existed prior to the appellant arriving in Australia and being granted a tourist visa. They concerned the circumstances of her life in Fiji prior to her departure. That being so, it is impossible to say that they were circumstances which had developed since the visa was granted. However, as I say, this was not directly dealt with by the delegate, but it is something which I infer from what the delegate did say.

23    The delegate did consider whether or not the circumstances of the protection visa ground were compelling and compassionate. He concluded that the circumstances of a threat of sexual assault were “compassionate”, however it was determined that they were not “compelling” because they were not forceful or sufficiently forceful in the circumstances. The reason given for that was because the appellant was not required to return to live in the same part of Fiji where she had previously resided or return to the workplace where a sexual assault on her had taken place. It was also considered that the appellant would have access to women’s health services.

24    That consideration by the delegate discloses that he was aware of the circumstances surrounding the Protection Visa ground and that they existed prior to the appellant’s departure from Fiji. In terms of the delegate’s conclusion as to whether the circumstances were compelling and compassionate, no error can be seen in the application of that provision.

25    The delegate did not overtly consider whether the Protection Visa circumstances were circumstances over which the appellant had control. Presumably he considered that she had no control over them.

26    On the other hand, the delegate did consider that the protection visa circumstances had not resulted in a major change to the appellant’s circumstances. The appellant, in advancing the Protection Visa ground, was advancing those circumstances which had existed for a period of over two years at her place of work prior to her leaving Fiji. In effect, her assertion was that those circumstances continued. Inevitably, that meant that there was no major change to her circumstances as a result of the alleged continuing threats of assault in Fiji. In this respect, the appellant did not provide the delegate with any information of the alleged major change to her circumstance since the granting of the visa, and the delegate rightly applied the requirements of reg 2.05(4) in these circumstances.

27    It follows that the delegate, to the extent to which he found the Protection Visa ground did not satisfy reg 2.05(4), correctly applied the applicable law.

The existence of a jurisdictional error

28    It follows from what I have said in relation to the Partner Visa ground that the delegate misapplied reg 2.05(4), even though in relation to the protection visa ground it was correctly applied.

29    In relation to the Partner Visa ground, the delegate did not correctly apply the two criteria which he determined the appellant had not satisfied. That is, whether the circumstances developed since the visa was granted and whether the appellant had any control over those circumstances. That error in the application of the regulation is an error of law amounting to a jurisdictional error which vitiates the decision.

30    The learned judge at first instance was not assisted by a clear exposition of the issues in this case. As a result, his Honour was not directed to the errors which I have identified in these reasons. Nevertheless, it follows that his Honour erred in not concluding that the delegate’s decision was affected by jurisdictional error. I ought to add that in this case counsel for the Minister was placed in an invidious situation. That is, Ms Laing appeared in response to relevantly sparse information concerning the grounds on which the appellant advanced her case. Effectively, Ms Laing was required to deal with possible defects in the reasons of the delegate raised by the Bench without prior warning. That is, of course, a very difficult task given the complexity of this area of law. Despite that, Ms Laing has said everything that might possibly have been said to save the decision of the delegate, however in my opinion it was fatally flawed.

31    Ms Laing did helpfully draw my attention to the decision in Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [34] which reinforces the established approach to construing decisions of administrative decision-makers. The High Court there emphasised that a court ought not to be astute to discern error in a statement of an administrative officer which was not intended to be a statement of reasons for a decision, that is a broad administrative evaluation rather than a judicial decision. Ms Laing made the implied submission that perhaps I was considering the delegate’s decision too strictly. I have taken that into consideration, but I apprehend that there has, in fact, been a misapplication of the section in this case

32    It follows that the orders of this court must be as follows:

1.    The appeal shall be allowed.

2.    The orders of the Federal Circuit Court are set aside and in lieu thereof order that the decision of the delegate dated 31 August 2017 be quashed.

3.    The application for a waiver of the no further stay condition 8503 be returned to the delegate or returned to a delegate for determination according to law.

4.    The respondent shall pay the appellant’s costs of the appeal and the costs of the application to the Federal Circuit Court.

Associate:

Dated:    15 May 2018