Federal Court of Australia
AQP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 463
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: |
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.
YATES J:
Introduction
1 This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 7 November 2019. The appeal was commenced on 22 November 2019 and allocated to my docket on 9 December 2021.
2 The appellant is a citizen of Lebanon who entered Australia on 12 November 2013 as the holder of a tourist visa. The appellant subsequently applied, unsuccessfully, for a protection visa. The appellant then applied for a waiver of the No Further Stay condition (condition 8503) imposed on her tourist visa.
3 Section 41(2A) of the Migration Act 1958 (Cth) (the Act), as in force at the time the appellant made her application, provided that the Minister could waive such a condition in prescribed circumstances. The prescribed circumstances are contained in reg 2.05(4) of the Migration Regulations 1994 (Cth) which, at the relevant date, provided:
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.
4 The evidence shows that the appellant was the victim of a sexual attack in Lebanon, before the grant of her tourist visa. In providing reasons for seeking waiver of condition 8503, the appellant provided the following information.
5 First, when asked for the major changes in her circumstances that had developed since her tourist visa had been granted, the appellant said:
I am now very sick. I attach medical evidence from Dr Mustapha Alameddin. I also submit a report from a Dr in Lebanon regarding my sexual attack which unfortunately was not before the Department. I am now unable to live on my own. I wish to have 8503 condition waived.
6 Secondly, when asked for the reasons why she had no control over the circumstances, the appellant said:
I am now unable to return home and I am very sick and I submit Family Register to show that all my children except one are in Australia and they wish to also sponsor me as Parent.
7 Thirdly, when asked to give details why her circumstances were compassionate and compelling, the appellant said:
My circumstances are extremely compelling and compassionate because I am sick and I have the majority of my children here. They can look after me.
The delegate’s decision
8 On 16 April 2019, a delegate of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused the appellant’s application to waive condition 8503.
9 The evidence before the delegate included the translation of a medical report provided by Dr Mousa Haddad in Lebanon, dated 1 September 2013. This report was of a medical examination of the appellant conducted after her sexual assault. The report states that, at the time of the examination, the appellant was “fully conscious but suffers from a nervous state and a severe psychological crisis because of the incident”. After noting the appellant’s injuries, the report concluded by stating:
Her health condition requires recovery and taking a leave of absence from work for one week as of the date of the incident.
10 The evidence also included a letter from Dr Mustapha Alameddin dated 11 October 2018, which certified that the appellant suffers from the following medical conditions: Type 2 diabetes; hypothyroidism; thyroidectomy; hypertension; anxiety; and depression. The letter states that the appellant has been a patient of Dr Alameddin’s practice for approximately eight years. Apart from listing the appellant’s then current medications, the letter gives no greater detail about her medical conditions, or the time of their onset.
11 The delegate was not satisfied that, since the appellant’s tourist visa was granted (a) compelling and compassionate circumstances had developed that (b) resulted in a major change to the appellant’s circumstances.
12 As to the last-mentioned matter (major change to the appellant’s circumstances), the delegate referred to the translation of Dr Haddad’s report and noted that Dr Haddad had examined the appellant prior to the grant of the visitor visa. His assessment was not, therefore, a circumstance that had developed since the grant of that visa.
13 After considering Dr Alameddin’s letter, the delegate accepted that the appellant was sick. She was not satisfied, however, that the medical conditions to which Dr Alameddin referred had developed since the grant of the appellant’s tourist visa.
14 The delegate acknowledged the appellant’s desire to remain in Australia to be cared for by her children. The delegate noted, however, that all five children in Australia had been residing here since before the grant of the appellant’s tourist visa.
15 The delegate was not satisfied, therefore, that either the appellant’s medical conditions or the fact that five of her children were residing in Australia was a major change to the appellant’s circumstances that had occurred since the grant of her visitor visa.
16 As to the first-mentioned matter (compelling and compassionate circumstances), the delegate accepted that the appellant’s claims regarding her sexual attack and her desire to remain in Australia with her children constituted circumstances that were “compassionate”. However, the delegate was not persuaded that the circumstances were “compelling”, such as to justify the waiver of condition 8503.
17 I observe that, by the time the delegate came to consider the question of “compelling and compassionate circumstances”, she had already found that the circumstances on which the appellant relied in seeking a waiver of condition 8503 had not developed since the grant of the appellant’s visitor visa, and had not resulted in a major change to the appellant’s circumstances. These findings were, alone, sufficient to find that the requirements of reg 2.05(4) had not been met.
18 Nevertheless, in finding that the appellant’s circumstances were not “compelling”, the delegate took into account Dr Haddad’s report and said that, if the appellant was still suffering symptoms of psychological distress from the attack, she had the option of seeking psychological support outside Australia.
19 The delegate also acknowledged the appellant’s claim that she was unable to live alone. However, the delegate found that it was open to the appellant and her family members, in both Australia and Lebanon, to consider appropriate living arrangements for the appellant upon her departure from Australia.
20 I note that, in considering the waiver request, the delegate also directed her attention to the possibility of waiver under reg 2.05(4AA) (genuine intention to apply for a particular class of visa). She concluded, however, that this provision did not provide an avenue for waiver of condition 8503 in the appellant’s case.
The Federal Circuit Court
21 The appellant sought judicial review of the delegate’s decision by the Federal Circuit Court. She relied on two grounds, expressed as follows:
1. The Delegate of the Minister failed to accept that I suffer serious medical condition here in Australia and the severity of the medical condition has resulted in a major change to my circumstances even though I was beaten and sexually assaulted in Lebanon but the deterioration of my physical and mental condition occurred and developed after I entered Australia.
2. The Delegate failed to accept that I have a genuine risk to return to Lebanon and failed to consider my claim for protection visa in Australia.
22 In considering these grounds, the primary judge surveyed the delegate’s decision record. Amongst other things, his Honour noted that the delegate had considered the medical evidence presented by the appellant. He noted, however, that the delegate had not been satisfied that this evidence demonstrated that the appellant’s medical conditions had developed since the grant of her visitor visa or that they had resulted in a major change to her circumstances.
23 In relation to the first ground of judicial review, the primary judge reasoned that, when referring to “severe medical conditions”, the appellant was referring to having been beaten and sexually assaulted in Lebanon. The primary judge noted that both matters had been taken into account by the delegate and that the first ground of judicial review was, in substance, an invitation to the Federal Circuit Court to engage in impermissible merits review.
24 In relation to the second ground of judicial review, the primary judge noted that the appellant’s claim to fear harm if returned to Lebanon was not an integer of her application for a waiver of condition 8503, although it had been an integer of her unsuccessful application for a protection visa. The primary judge noted that, even so, the delegate had taken into account the transcript of a hearing before the Administrative Appeals Tribunal in relation to her application for a protection visa, which confirmed that the sexual assault had occurred in Lebanon before the appellant’s visitor visa had been granted.
25 The primary judge was not persuaded that the appellant had demonstrated any jurisdictional error in the delegate’s decision. He dismissed her application for judicial review, with costs.
The appeal
26 The appellant’s notice of appeal to this Court contains three ground, expressed as follows:
1. His Honour Judge Street failed to accept my submission and that my circumstances are compelling contrary to the Delegate’s decision.
2. I did not receive the judgment and I rely on the evidence on file including Transcript of the interview between the Tribunal and myself on 9 February 2016 and the Delegate as well as His Honour Judge Street failed to take the information into account.
3. His Honour and the Tribunal failed to understand the medical reports and the fact that my circumstances are compelling.
27 The appellant appeared at the hearing of the appeal without legal representation. She was assisted by an interpreter.
28 By orders made on 28 November 2019, the appellant was required to file a written outline of submissions. She did not do so.
29 At the commencement of the hearing, I explained to the appellant that her task, in this appeal, was to satisfy me that the judgment of the Federal Circuit Court was affected by appealable error. I explained that, in undertaking judicial review, the Federal Circuit Court was not standing in the shoes of the delegate or the Minister, and was not undertaking the task of deciding whether condition 8053 should be waived in the appellant’s circumstances. I explained that the Federal Circuit Court’s task was to consider whether the delegate had considered the appellant’s waiver application according to law—in other words, according to what the law requires of such a decision-maker when undertaking that particular task. I explained that the task of this Court, when exercising its appellate jurisdiction, is to ascertain whether the Federal Circuit Court erred in the judgment to which it had come, based on the grounds of appeal on which the appellant relies.
30 I then invited the appellant to address me, by reference to her notice of appeal, on how and why, she says, the Federal Circuit Court erred in the judgment to which it had come.
31 The appellant submitted that the delegate and the primary judge did not take into account Dr Haddad’s report or Dr Alameddin’s letter. She submitted that these documents “contained compelling circumstances” and that these were circumstances that had changed after she arrived in Australia.
32 The appellant also submitted that the delegate did not take into account the transcript of the hearing before the Administrative Appeals Tribunal in relation to her application for a protection visa, which also “contained compelling circumstances”.
33 The appellant submitted that the delegate did not take into account: “the situation in Lebanon”. She said that there was no healthcare in Lebanon, and no medications in the hospitals. She said that “people die at the hospital doors”. The appellant repeated this claim. She said:
I don’t want to go to Lebanon and die like the people are dying there. Yesterday, they died on the boat and people are dying at the hospital doors. … [O]ver there, there is no food. There is no medication. There is nothing and I am sick, and I need somebody to help me.
34 The appellant also referred to her mother’s passing and her fear of “Syrians in Lebanon” which, she said, the delegate did not take into account.
35 It is clear that, in making these submissions, the appellant travelled beyond the grounds in the notice of appeal.
Consideration
36 The first ground of appeal has two aspects. The first aspect is an allegation that the primary judge did not accept the appellant’s “submission”. Of itself, this allegation does not indicate any error in the primary judge’s findings and conclusions that the appellant had not established jurisdictional error in the delegate’s decision. It is simply a bare expression of disagreement with the primary judge’s findings and conclusion.
37 The second aspect is that the primary judge failed to accept that the appellant’s circumstances are “compelling”. However, it was not for the primary judge to exercise his own judgment, in preference to the delegate’s judgment, on that matter. Further, as I have noted earlier, by the time the delegate came to conclude whether the appellant’s circumstances were “compelling”, the delegate had already found that the circumstances on which the appellant relied had not developed since the appellant’s visitor visa had been granted, and had not resulted in a major change to the appellant’s circumstances. Therefore, on the delegate’s findings of fact, the appellant failed to meet the requirements of reg 2.05(4) in a number of respects.
38 For these reasons, the first ground of appeal does not reveal any appealable error.
39 I would add that it is clear from the delegate’s decision record that the delegate did consider all the medical evidence before her. The delegate was not satisfied that the evidence demonstrated that the appellant’s medical conditions had developed since the grant of her visitor visa. This finding was open to the delegate on the material before her.
40 Further, as I have said, it was for the delegate to decide whether the evidence established that compelling and compassionate circumstances had developed, since the grant of the appellant’s visitor visa, and had resulted in a major change to the appellant’s circumstances.
41 The second ground of appeal concerns the transcript of the appellant’s hearing before the Administrative Appeals Tribunal in relation to her unsuccessful application for a protection visa.
42 This ground of appeal is factually incorrect. It is clear that the delegate did consider the transcript in her deliberations. In her decision record, the delegate said:
In considering the client’s claims I acknowledge all the information presented including a transcript of the clients (sic) tribunal hearing dated 09 February 2016.
43 I have no reason to doubt that fact. The primary judge also noted that the delegate had considered the transcript. Therefore, the second ground of appeal does not reveal any appealable error.
44 I observe that this ground also complains that the appellant did not receive “the judgment”. This is, apparently, a reference to the fact that the appellant did not receive a written version of the primary judge’s reasons for judgment prior to her filing her notice of appeal. I am informed by the Minister’s written outline of submissions that the primary judge’s written reasons were available six days after the appellant filed her notice of appeal. This was some considerable time ago. The appellant has not sought to amend her notice of appeal.
45 The third ground of appeal asserts error by the primary judge and the “Tribunal” in understanding the medical reports. The alleged misunderstanding is not identified.
46 If, by referring to the “Tribunal”, the appellant means the Administrative Appeals Tribunal that heard her unsuccessful application for a protection visa, then that Tribunal’s understanding of the medical reports is not a matter that was relevant to the application for judicial review before the Federal Circuit Court. Equally, it is not a matter relevant to this appeal.
47 If, however, by “Tribunal” the appellant means the delegate, then there is no basis for concluding that the delegate, or for that matter the primary judge, misunderstood the medical reports that were before the delegate when she made her decision.
48 This ground also alleges error in relation to the delegate’s conclusion that the appellant’s circumstances were not “compelling”. I have already dealt with that contention.
49 For these reasons, the third ground of appeal does not reveal any appealable error.
50 Collectively, the grounds of appeal are really directed to inviting the Court, in the exercise of its appellate jurisdiction, to make factual findings and conclusions that are different to the findings and conclusions reached by the delegate. They are an invitation to undertake impermissible merits review.
51 The appellant’s oral submissions concerning the current state of the healthcare system in Lebanon raise matters that were not put to the delegate as reasons for waiving condition 8503. Indeed, in the transcript of the hearing before the Administrative Appeals Tribunal in relation to her application for a protection visa, the only matter of concern raised by the appellant (should she return to Lebanon) was her fear of suffering harm from “a particular Syrian guy”—an apparent reference to the perpetrator of the attack on the appellant when she was in Lebanon before her visitor visa had been granted. When asked at the Tribunal hearing whether she feared, or was concerned about, anything else if she were to return to Lebanon, the appellant replied: “No”.
52 As to the appellant’s reference to the passing of her mother, the Minister submitted that this fact was not put to the delegate as a reason for waiving condition 8503, and is not a claim that is raised squarely by the material before the delegate.
53 The Minister submitted that these matters did not form part of the appellant’s application for judicial review before the Federal Circuit Court. The Minister submitted that this Court, in the exercise of its appellate jurisdiction, should not permit the appellant to raise these matters now. I accept these submissions.
Disposition
54 In these circumstances, the appeal must be dismissed. The appellant is to pay the Minister’s costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. |
Associate:
