FEDERAL COURT OF AUSTRALIA

Boutros v Minister for Immigration and Border Protection [2019] FCA 851

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to raise the new grounds in ground 1 of the notice of appeal.

2.    The appeal is dismissed.

3.    Costs are reserved.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant, Youssef Boutros, is a citizen of Lebanon and entered Australia on 29 May 2014 as the holder of a Tourism (subclass 600) visa (visitor visa). That visa was subject to condition 8503, known as the “No Further Stay Condition”, which relevantly provided that:

The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the subject remains in Australia.

2    Pursuant to s 41(2A) of the Migration Act 1958 (Cth) (the Act), the Minister or his delegate may waive condition 8503 where the criteria prescribed relevantly by reg 2.05(4) of the Migration Regulations 1994 (Cth) (the Regulations) are met. In essence, reg 2.05(4) permits waiver of the condition where compelling and compassionate circumstances have arisen after the grant of the visa, over which the person had no control and which resulted in a major change in the person’s circumstances.

3    On 8 June 2016, the appellant applied to the Minister for a waiver of condition 8503 on the basis that his sister who was then pregnant has “many medical complications” and “is in [a] very bad condition and due to give birth by mid-July”. He explained that his sister already has two young children, her husband is working full-time, and the appellant had been assisting her emotionally and physically. He said that she relied on him totally for day-to-day support and had no one else to assist her. The appellant submitted medical evidence relating to his sister in support of his request.

4    On 21 June 2016, a delegate of the respondent, the Minister for Immigration and Border Protection (the Minister), refused the appellant’s application to waive condition 8503 imposed on his visitor visa and set out his reasons in a decision record of the same date. The delegate found that the appellant’s choice to look after his sister was not outside his control, that her pregnancy and medical condition did not constitute a major change to the appellant’s circumstances, and that the appellant’s circumstances were not compelling. As such, the delegate found that the criteria for a waiver of condition 8503 under reg 2.05(4) were not met. The appellant’s application for judicial review of the delegate’s decision was dismissed by the Federal Circuit Court (FCC) on 22 August 2017.

5    By a notice of appeal filed on 8 September 2017, the appellant appeals from the decision of the FCC.

6    For the reasons set out below, the appeal must be dismissed.

2.    ADJOURNMENT OF THE INITIAL LISTING OF THE APPEAL PENDING THE HIGH COURT’S DECISION IN HOSSAIN

7    The appeal was first listed for hearing on 1 March 2018. At that hearing I raised a number of issues with the Minister. The first issue concerned the apparent circularity of the construction of the word “compelling” adopted by the delegate and the question of whether a consideration of whether circumstances were “compelling” was purely subjective in nature subject only to legal unreasonableness, or whether compelling meant forceful and therefore convincing by reference to some standard of reasonableness (as Crennan J suggested in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204). Secondly, I was concerned that the delegate had imposed a “gloss” on the criterion in reg 2.05(4)(a)(i). Thirdly, even if the delegate had fallen into jurisdictional error in either respect, the question arose as to whether the decision was valid in any event by reason of the existence of a separate and independent ground on which it might be sustained. In this context, the Minister drew the Court’s attention to the fact that the High Court was due to hear the appeal in Hossain v Minister for Immigration and Border Protection (S1/2018) which concerned the question of whether the existence of a separate and independent ground untainted by jurisdictional error meant that the decision was still valid or was relevant to the question of relief. As a consequence, the Minister submitted that it was a better use of resources and would minimise costs if this appeal were to be adjourned pending the outcome of the appeal in Hossain and agreed to advise my Associate when that decision was handed down. As the appellant did not oppose that course, I adjourned the appeal.

8    Subsequently, on 15 August 2018 the High Court dismissed the appeal in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 (Hossain). The Court held that (relevantly) whether a failure to comply with a statutory condition establishes jurisdictional error will ordinarily incorporate a threshold of materiality and that that threshold would not generally be met if the failure to comply with the condition could have made no difference to the decision made: Hossain at [25]-[30] (Kiefel, Gageler and Keane JJ).

9    On 22 August 2018, the Minister’s solicitors wrote to the Court and the appellant advising that the decision in Hossain had been handed down. The appeal was then set down for a further hearing on 22 November 2018.

3.    CONSIDERATION

3.1    The issues sought to be raised on the appeal

10    Ground 1 of the appellant’s notice of appeal (which is the only substantive ground) alleges that:

1. The Department of Immigration accepted that the pregnancy of my sister was not within my control but was not satisfied that my choice to provide care and support was outside of my control. The Delegate somehow misunderstood that the circumstances of my sister are compelling because my sister had nobody in Australia to provide the support and care I did. The Delegate somehow found that my circumstances were not sufficiently forceful to waive 8503 condition.

(without alteration)

11    As such, the notice of appeal challenges two aspects of the delegate’s decision, namely that:

(1)    the circumstances were not sufficiently forceful to be compelling circumstances for the purposes of reg 2.05(4)(a) (the first limb of ground 1); and

(2)    the circumstances were not circumstances over which the appellant had no control for the purposes of reg 2.05(4)(a)(i) but were rather his personal choice to provide his sister with care and support (the second limb of ground 1).

12    In this regard, I note that the notice of appeal does not in terms identify an error by the FCC although as this an appeal from the FCC, it is necessary for error to be established in the judgment of that Court. As the Full Court has explained, “an appeal by way of rehearing… does not mean it is an opportunity to revisit the decision of the tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge”: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524 at [27] (the Court); see also e.g. BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 at [31]-[35] (Edelman J). This deficiency in the way in which the ground of appeal is framed is at least in part explained by ground 2 of the notice of appeal which simply states that “[a]s I have not received the full judgment of His Honour Judge Smith I cannot comment further.” In other words, the notice of appeal was filed after ex tempore (contemporaneous oral) reasons were given at the end of the hearing of the application for judicial review but were not published until after the notice of appeal was filed. The appellant’s failure to amend the first ground subsequently so as to be expressly directed at error by the FCC, in turn, is explicable by the fact that he is and has been unrepresented throughout the proceeding as the Minister accepted. Having regard to these circumstances therefore, and as a matter of fairness, I would read the first ground as alleging by implication that the FCC erred in failing to find that the delegate had erred in the ways identified in ground 1.

3.2    Principles governing leave to raise a new ground on appeal

13    As the Minister submits, the appellant did not challenge the delegate’s finding before the primary judge that the circumstances were not outside the appellant’s control and therefore a grant of leave was required before the second limb of ground 1 could be raised on the appeal. Leave was opposed by the Minister on the basis that ground 1 of the notice of appeal had no reasonable prospects of success. In this regard, the Minister emphasised that no particulars were given of the allegation that the FCC should have found that the delegate had erred in the respect alleged; nor did the oral submissions by the appellant identify the basis of the alleged error.

14    The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) as follows:

46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. 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) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [(2000) 63 ALD 43)]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

47. In Coulton v Holcombe (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. …

See also Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court); Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Murad) at [19]-[20] (Griffiths and Perry JJ).

15    After considering VUAX and Iyer, Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (with whose reasons Conti J agreed) explained that:

165. It is no accident that the “practice” spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.

166. Thus, relevant questions include:

1)     Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

16    Consistently with these principles, in general leave is more likely to be granted where the new issue turns on a point of law or the facts are not in issue: Murad at [20].

17    In my view, leave should be granted to raise the second limb of ground 1. First, as I explain below, were it not for the fact that the decision could be sustained on another ground, I consider that there was a real question as to whether the delegate had erred in his understanding of the criterion in reg 2.05(4)(a). Secondly, greater latitude should be given to an appellant who is unrepresented, unfamiliar with the Australian legal system, and has to formulate grounds with respect to a decision in a language which she or he does not speak. Thirdly, the new ground does not raise a factual contest but turns upon a question of statutory construction. Finally, it was not suggested that the Minister would suffer any prejudice.

3.3    Is the delegate’s decision valid?

18    Regulation 2.05(4) of the Regulations provides that:

(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.

19    First, it is apparent from the structure of reg 2.05(4) and the use of the word “and” after each criterion prescribed by reg 2.05(4) that all of the criteria specified in sub-reg (4) must be met before the Minister (and therefore her or his delegate) has power to waive the condition. The delegate therefore correctly found that he must be satisfied that the appellant’s circumstances meet “all the criteria set out in the Regulations” (emphasis added). In the present case, the delegate was not satisfied that the criterion in reg 2.05(4)(a) (that “compelling … circumstances” had developed) was met nor that either of the specific criteria in reg 2.05(4)(a)(i) and (ii) were met. Any one of these findings would constitute an independent and sufficient ground for upholding the decision. Unless therefore the appellant can successfully challenge all three findings, the validity of the decision must be upheld: see Hossain at [30] and [35] (Kiefel, Gageler and Keane JJ), and [72] (Edelman J (with whose reasons Nettle J substantially agreed at [39])).

20    The initial difficulty therefore is that the appellant does not challenge the finding by the delegate that neither the appellant’s sister’s pregnancy or her medical conditions constituted “a major change to” the appellant’s circumstances so as to satisfy sub-reg (4)(a)(ii). It follows that this finding alone would have required the delegate to dismiss the appellant’s application to waive the condition. As such, it follows from the decision in Hossain that, even if the appellant were to succeed on either or both limbs of ground 1, the errors would not be material and they would not, therefore, establish a jurisdictional error.

21    Secondly and in any event, I do not consider that the first limb of ground 1 raises a jurisdictional error. In this regard, while the delegate accepted that the appellant’s desire to remain in Australia to care for his sister is compassionate, he did not accept that the appellant’s circumstances were compelling for the purposes of reg 2.05(4)(a). In so finding, the delegate explained that:

The term “compelling” is not defined in the migration legislation. It is therefore given its ordinary meaning. “Compelling” means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.

In your request you have stated that there is no one else in Australia that [sic] can provide support and care for your sister. Your sister has a husband who has supported her and his family since 2005, almost 10 years prior to your arrival in Australia. Further, the medical documents you have provided do not confirm any medical condition that would seriously impact your sister’s health. You [sic] sister has a medical plan in place with her doctor and this is confirmed in the document you have provided from Dr Anna Thai dated 24 December 2015. Therefore, I am not satisfied that your circumstances are sufficiently forceful that it would lead me to make the decision to waive the no further stay condition 8503.

22    The primary judge found that the delegate properly understood that the word “compelling” was used in the regulation in its ordinary sense consistently with decisions of the Federal Court such as Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 (Thongpraphai). In Thongpraphai, O’Loughlin J held at [21] that “… both words [‘compelling’ and ‘compassionate’] call for the occurrence of an event or events that are far-reaching and most heavily persuasive.”

23    It might be thought, with respect, that there is a degree of circularity to the delegate’s understanding of the criterion that the appellant’s circumstances must be compelling in the sense that the circumstances “must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition” (emphasis added) (subject, of course, to the appellant meeting the other prescribed criteria). Allowing for some looseness of language in the delegate’s expression of the test, that construction is broadly consistent with that adopted by the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64/2015). In that case the High Court considered the proper construction of cl 202.222 of Schedule 2 to the Regulations which prescribed, as a criterion for the grant of a visa, that the Minister was satisfied that there are “compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to” certain considerations set out in paragraph (a) to (d) of cl 202.222. In that context, French CJ, Bell, Keane and Gordon JJ held that:

31. … the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application.

See also Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 77; (2005) 141 FCR 285 at [21] (the Court), which was cited with approval in Plaintiff M64/2015 at [31].

24    Before the FCC the appellant also alleged by ground 1 of his application for judicial review that “[t]he Department did not distinguish the difference between compelling and compassionate”. The primary judge rejected that ground “… because the delegate accepted that the applicant’s desire to remain in Australia to care for his sister was compassionate, but did not consider that the circumstances were compelling.” I agree that it is plain for the reason given by the primary judge that the delegate did not conflate the requirements that the appellant’s circumstances be both compelling and compassionate.

25    The primary judge ultimately found that the challenge to the finding that the appellant’s circumstances are not compelling:

… does no more than argue that the delegate made a wrong conclusion based upon the material before it. The question of whether something is “compelling” involves some level of judgment by an individual decision-maker. That judgment is entrusted to the Minister pursuant to the Act. Itis not one for the Court to decide. For that reason, the second ground is not made out.

26    I agree. As for example, French CJ, Bell, Keane and Gordon JJ explained in Plaintiff M64/2015:

23. It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff’s challenge to the validity of the Delegate’s decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

“an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.” [quoting Craig v South Australia (1995) 184 CLR 163 at 175.]

See also e.g. Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).

27    Finally it is appropriate to mention a further concern that I have as to the correctness of the delegate’s decision, even though that error cannot affect the validity of the decision in this case for the reasons I have already given.

28    The delegate also addressed the question of whether the appellant’s request arose as a result of circumstances outside his control, as required by reg 2.05(4)(a)(i). The delegate was not satisfied that this was the case for the following reasons:

In your request you have stated that your sister is pregnant and has some medical conditions of concern. You further state you would like to support her emotionally and physically. Your sister’s pregnancy is a circumstance that is considered a natural progression of her relationship with her husband. Although your sister’s pregnancy is not within your control, the personal choice that you are making to provide care and support in the knowledge of your immigration status is within your control. Therefore, I am not satisfied that this circumstance is a circumstance that is outside of your control …

29    It is correct that the relevant question is whether the circumstances relied upon as compelling and compassionate are not within the appellant’s control as the person requesting the waiver: Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570; (2003) 135 FCR 335 at [22] (Kenny J). However, having found that those circumstances are not within the appellant’s control, the delegate poses a further question, namely, whether the appellant’s request to stay to respond to those circumstances reflects a choice by him to do so as a consequence of which he cannot meet the criteria in reg 2.05(4)(a)(i). I consider that it is questionable as to whether the delegate’s reasons in this regard are based upon a proper understanding of reg 2.05(4)(a)(i). Absent a case where a person is physically incapable of leaving Australia, it is difficult to conceive of a case at least involving an adult where there is not, in some sense, an element of choice about seeking to remain. For example, the delegate’s construction would seem to mean that a waiver could not be granted if, for example, a person wished to remain in Australia in order to care for a dying sibling or parent when no other family member was available to render that care because it was ultimately that person’s choice to render that care. This would seem to be inconsistent with the apparent purpose of making provision for conditions to be waived on compassionate and compelling grounds. However it is unnecessary to consider this issue further for the reasons that I have earlier given: see above at [20].

4.    CONCLUSION

30    For the reasons set out above, the appeal must be dismissed. I have reserved the question of costs having regard in particular to the fact that I consider there was error in the delegate’s decision albeit that the error was not ultimately material in that the decision could be sustained on other grounds.

Associate:

Dated:    7 June 2019