Ahmed v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 28 April 2015 the Federal Circuit Court of Australia dismissed the applicant's claims for relief pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and ordered the applicant to pay the Minister's costs of $3,326. A dismissal under r 44.12(1)(a) is an interlocutory determination and leave to appeal is required before an appeal can be instituted: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be brought within twenty one days, which in this case means that any such application had to be bought by the end of 19 May 2015. No application was brought within that time. On 21 May 2015 an application was made to extend the time in which leave to appeal might be sought and, if time were extended, seeking leave. That is the application which is presently before the Court. 2 It would be appropriate to extend the time in which to bring the proposed application to seek leave to appeal if that leave application had some merit. The application for leave to appeal would have some merit if it appeared reasonably arguable that (a) the Court below had made an error and (b) injustice would result if the error were not corrected. Since the Federal Circuit Court dismissed Mr Ahmed's proceedings in toto it seems to me that (b) would be satisfied if he can prove (a). 3 I do not think that he can. The applicant is a citizen of Egypt who arrived on a visa on 22 October 2012. The visa had been granted in October 2011 and was due to expire on 6 July 2014. Section 41(2) of the Migration Act 1958 (Cth) authorises, amongst others, the making of regulations which specify that a class of visa may be subject to a condition that the holder may not be granted a substantive visa while he or she remains in Australia. Mr Ahmed's visa was subject to such a condition which is called Condition 8503. This condition had the effect that Mr Ahmed was not able to apply for a partner visa if he were to be married after his arrival unless he first left Australia and applied from overseas. 4 On 19 March 2014 Mr Ahmed married an Australian woman. Shortly afterwards, on 1 April 2014, he applied for a partner visa which was a few months before his current visa expired on 6 July 2014. 5 Of course, because of Condition 8503 he is not currently eligible for that visa. However, s 41(2A) permits the Minister (or his delegate) to waive compliance with a condition such as Condition 8503 as a matter of discretion, but only in 'prescribed circumstances'. The circumstances which are prescribed are those set out in reg 2.05(4) of the Migration Regulations 1994 (Cth): '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.' 6 It will be seen that (a) deals with a first attempt to apply for a waiver whilst (b) says that the Minister cannot waive a condition if the waiver request has already been made but there is nothing, in substance, new as at the time of the second request. There is no issue about (c) in this case which may be put to one side. 7 It will be noted that (b) is couched in the language of the Minister's satisfaction. 8 Plainly, Mr Ahmed needed to get Condition 8503 waived if his application for a partner visa was to succeed. 9 On 1 May 2014 he lodged an application for a waiver. In order to persuade the Minister's delegate to grant the waiver it was necessary for him to show that 'compelling and compassionate circumstances' had occurred which Mr Ahmed had no control over and which had resulted in a major change to his personal circumstances. Mr Ahmed put forward five matters: (a) there was a severe war in Egypt; (b) he had recently married to his wife; (c) his wife was unwell, suffering from paranoid schizophrenia and she would benefit from being supported by her husband; (d) she was unable to travel; and (e) he had to look after her and her mother. 10 There were some obstacles which lay in the path of these contentions. He was living in Sydney and she in Perth. Further, the medical evidence provided suggested that her condition pre-dated the marriage. 11 There is no obligation on the delegate to produce reasons under reg 2.05(4): Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26]. Despite that, and consistently with decent standards of administration, the delegate did produce reasons for the decision. Another feature of a waiver decision is that there is no right to approach a merits review Tribunal for review and the first port of call is, therefore, the Federal Circuit Court. 12 The delegate concluded on 14 May 2014 that he was not satisfied that there were compelling and compassionate circumstances because he did not accept that Mr Ahmed did need to care for his wife. This was because Mr Ahmed lived in Sydney whilst his wife and her mother lived in Perth. On 1 July 2014 Mr Ahmed applied for a second waiver. The grounds relied upon were: (i) that his wife was currently in Perth caring for her elderly mother; (ii) he and his wife needed to be together to support each other and to support her mother. 13 As he was required to do, the delegate applied reg 2.05(4)(b) because this was Mr Ahmed's second application. It posed for him the question of whether he as delegate was satisfied that the circumstances of the second waiver application were substantially different from those which he had previously considered. 14 The regulation does not make such a difference a legal pre-condition to the exercise of the discretion; it makes the delegate's satisfaction about that difference a pre-condition. 15 The delegate thought that there was no substantial difference between the two applications so he was not so satisfied. 16 Mr Ahmed then sought judicial review in the Federal Circuit Court of the refusal to accede to the second waiver application. It seems that he pursued two grounds of review. The first ground related to the alleged failure by the delegate to consider the issue of compelling and compassionate grounds relating to his mother-in-law. This the Federal Circuit Court correctly rejected on the basis that on a second application the first question for the delegate was whether it was a substantially different application. 17 The second ground was that the delegate had failed to understand that his wife was unable to assist her mother because of her own illness. The Federal Circuit Court, on the other hand, thought that the issue was whether the claims in the second request were substantially different to those in the first. At [27] the Court said: '27. The critical and determinative issue is this case is whether the claims made by Mr Ahmed in the second waiver request were substantially different to those made by Mr Ahmed in the first waiver request. Having found they were not, it was not necessary for the delegate to consider whether compelling and compassionate circumstances had developed as provided for by regulation 2.05(4)(a). That this is so is evident from the conjunctive "and" in regulation 2.05(4) which requires all subparagraphs to be met. Ground 2 must fail.' 18 I think it reasonably arguable that this involved error. The critical question was not whether the claims were substantially different, it was whether the delegate was satisfied that this was so: see Kishore v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 147 at 157 [39] per Emmett J. This is quite a different question. On the other hand, there are, as Ms Blake for the Minister helpfully pointed out, other parts of the Court's decision which do appear to ask the correct question: see, for example, [13], [18] and [22]. I would regard this, therefore, as something of an open question. 19 It is not necessary to arrive at a final view on this issue. Assuming that error was shown in [27], I do not think that there would be any utility in permitting the correction of that arguable error. If the issue is whether there was any error shown in the delegate's conclusion that the two applications were not substantially different I do not see how I could gainsay the idea that that conclusion was open on the material before him. I might not have arrived at the same conclusion myself. But when I ask myself whether it was open to the delegate on the material before him so to conclude it seems to me that the answer must be 'yes'. 20 The second requirement for leave to appeal is not therefore established. I will dismiss the application to extend time, which means that the application for leave to appeal falls away. The applicant will pay the respondent's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.