Kaur v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 18 May 2011 dismissing an application for judicial review of a decision of a delegate of the Minister for Immigration and Citizenship. 2 The appellant is a citizen of Fiji who entered Australia seven times on visitor visas during the period from 27 October 2002 to 24 October 2009. Her most recent visa, a Bridging Visa E (sub class 050), required her to depart from Australia by 1 May 2011. The appellant wished to remain in Australia after that date to care for her husband who, she claimed, was unwell, depressed and grief stricken following the recent suicide death of his son (her stepson). However, she could not obtain a further visa for that purpose because her Bridging Visa E was subject to condition 8503 which provided as follows: 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. 3 The Minister for Immigration and Citizenship has the power under s 41(2A) of the Migration Act 1958 (Cth) to waive this condition if the circumstances prescribed by sub-reg 2.05(4) of the Migration Regulations apply. They are: (a) since the person was granted a 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 (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 Accordingly, the appellant sent two letters dated 14 March 2011 and 2 April 2011 to the Minister requesting that condition 8503 be waived to allow her to apply for a partner visa. 5 In those letters, the appellant set out her claims as follows: (a) the appellant's husband, who is an Australian citizen resident in Australia, is suffering from medical conditions; (b) the son of the appellant's husband recently committed suicide, and as a result the appellant's husband is very depressed and sad, and should not be deprived of support in such circumstances; (c) the appellant's husband has no one else to look after him in his illness and his grief, and the appellant is unwilling to leave him and go back to Fiji while he is in that condition; (d) the appellant's ex-husband in Fiji wishes to harm the appellant, with the consequence that the appellant cannot take her present husband with her to Fiji because her ex-husband may also harm her present husband. 6 A delegate of the Minister refused the appellant's request in a letter dated 15 April 2011. Among other things, that letter stated that: [I]t was not accepted that since you were granted the visa that was subject to the 8503 condition that circumstances have developed over which you had no control and resulted in a major change to your circumstances and are both compelling and compassionate. 7 On 29 April 2011 the appellant filed an application with the Federal Magistrates Court seeking judicial review of the delegate's decision. Her grounds of review were simply: 1. The Delegate of the Minister ignored important and compelling circumstance 2. The Delegate misapplied the law. 8 The Federal Magistrate dealt with the matter on the basis that the delegate was not obligated to provide reasons for its decision. This appears to be correct: see Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26] per Allsop J and, in a different context, the recent observations in O'Connor v Zentai [2011] FCAFC 102 at [213]-[216] per Jessop J. The Federal Magistrate noted that without detailed reasons for the decision, satisfying the Court that jurisdictional error attended that decision was likely to be quite difficult. 9 Nonetheless, the Federal Magistrate proceeded to deal with each of the grounds of review. 10 As to the first ground, based on the delegate's statements that careful consideration was given to the appellant's claims, her Honour was satisfied that the delegate had not ignored the appellant's claims but had concluded that they did not amount to "compelling and compassionate circumstances" within the terms of sub-reg 2.05(4)(a). 11 On the second ground, the Federal Magistrate was satisfied that, from the face of the refusal letter, the delegate had applied the correct law, namely sub-reg 2.05(4) of the Regulations. 12 Accordingly, the Federal Magistrate was satisfied that the appellant had not been able to demonstrate any jurisdictional error on the part of the delegate and dismissed the application for judicial review. 13 On 7 June 2011 the appellant filed a notice of appeal in this Court which alleged (without alteration): 1. Failure to recognise the compelling and compassionate circumstances. 2. The Delegate and her Honour failed to apply the law and understand the issue and the law. 14 At the hearing before me on 19 August 2011, the appellant appeared in person, unrepresented and accompanied by her husband. Mr Wood appeared as counsel for the first respondent. The appellant and her husband made emotional pleas that she be allowed to stay in Australia to care for her husband. As I endeavoured to explain to her, this Court has no power to set aside the delegate's decision unless she could identify some jurisdictional error in it. 15 At the outset it should be noted that, while they are not precisely the same, the appellant's grounds of appeal before this Court raise substantially the same issues as the two grounds of review before the Federal Magistrates Court. 16 At [18] of her reasons for judgment, the Federal Magistrate observed that "[a]t the heart of the applicant's complaints are disagreements with the findings and conclusions of the Delegate". I respectfully agree. This is manifest in ground 1 of the appellant's notice of appeal. It is well-established that neither the Federal Magistrates Court, nor this Court, can review the merits of the delegate's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291, Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [197] and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. There is therefore no merit in this ground of appeal. 17 Ground 2 makes the same allegations as those made before the Federal Magistrate but alleges as well that the Federal Magistrate also failed to understand and apply the law and understand the legal issues involved. I am quite satisfied from the face of the refusal letter that the delegate properly referred to, and applied, sub-reg 2.05(4) of the Regulations. It follows that I am equally satisfied that the Federal Magistrate was correct in concluding that there was no error apparent in the delegate's decision. This ground of appeal also has no merit. 18 For these reasons, I consider the Federal Magistrate was quite correct in concluding that the delegate's decision was not affected by jurisdictional error and that her Honour had no power to interfere with it. Neither does this Court. Accordingly, this appeal must be dismissed. Based on the affidavit filed by the respondent's solicitors, I will order that the appellant pay the respondent's costs of this appeal fixed in the amount of $3,440. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.