Kumar v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 The application for an extension of time and leave to appeal should be dismissed on the ground that, if time is extended and leave granted, the applicant has no real prospect of succeeding in his appeal against the orders of the Federal Circuit Court. 2 The applicant held a TR 686 (Visitor) visa which authorised his presence in Australia. His visa was subject to condition 8503, known as a "no further stay" condition, by which the applicant was precluded from applying for another visa (except a protection or specified temporary visa) allowing him to remain in the country under another visa after his visitor visa had expired. The applicant applied for a waiver of this condition on the basis that he wished to remain in Australia with his wife until her application for a protection visa had been finalised. A delegate of the Minister, in exercise of the power to waive such a condition provided for in s 41(2A) of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.05(4) of the Migration Regulations 1994 (Cth), decided on 20 October 2015 that the waiver should not be granted given the applicant did not satisfy the requirement that since the grant of the visa "compelling and compassionate circumstances have developed…over which the person had no control…that resulted in a major change to the person's circumstances". As the delegate put it, the applicant's wish to remain in Australia was within his control. He was not included in his wife's protection visa application and thus he was not legally required to remain in Australia for the processing of that application. The circumstances were not "compelling" so that the delegate was not "heavily persuaded" to use his discretion to grant the waiver of the condition. 3 The language of the delegate reflects the observations in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21] where this was said: The circumstances that must fit the description of "compelling and compassionate" must have developed since the grant of the visa …: Surinakova v Minister for Immigration Local Government (1991) 33 FCR 87. There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality. 4 The decision of the delegate refusing to remove the condition is not an MRT-reviewable decision as provided for in s 338 of the Migration Act, with the result that the applicant's only avenue for review of the decision was by way of judicial review. However, the imposing of or refusal to remove a condition is a "privative clause decision" as provided for in s 474(3)(d) of the Migration Act and, thus, is immune from judicial review other than where jurisdictional error can be demonstrated. 5 In his application for review to the Federal Circuit Court, the applicant alleged that the delegate had failed to understand the compelling circumstances and the outcome of him being required to leave Australia prior to the determination of his wife's application, and therefore without her, "is compelling". The Federal Circuit Court dismissed the application on 11 May 2016 (Kumar v Minister for Immigration and Border Protection [2016] FCCA 1510). In the draft notice of appeal to this Court the applicant contends that, if granted leave to appeal, he will challenge the decision of the Federal Circuit Court on two grounds, the first being that the Federal Circuit Court misunderstood the compelling circumstances as it decided the matter contrary to the applicant's response which he had filed, and the second being that the delegate also misunderstood his case, the major change to his circumstances and "ignored what happened to my wife and why it is not possible for my wife to return to Fiji without me". 6 Neither ground makes sense. The Federal Circuit Court understood the applicant's argument, as did the delegate. The delegate was simply not satisfied that "compelling and compassionate circumstances [had] developed over which [the applicant] had no control". This conclusion was reasonably open to the delegate on the material available. The Federal Circuit Court, for its part, considered all of the arguments put by and for the applicant, and concluded that there was no arguable case. In particular, the Federal Circuit Court concluded that: The applicant's written submissions, as contained in his document "Applicant's Response", do not advance the applicant's case in any relevant or meaningful way (at [22]). Given that the applicant must be inferred not to have attached to his waiver request any decision of a tribunal, it cannot be said the delegate erred in not considering such a decision (at [39]). Rather, the delegate was told by the applicant that he wanted more time in Australia to await the decision on his wife's application so that they could leave Australia together. The delegate considered this request and decided the pre-requisites to a favourable exercise of discretion (specifically, compelling circumstances over which the applicant had no control) were not satisfied. Further, this "finding, and indeed the findings that informed that conclusion, were all reasonably open to the delegate on what was before him" (at [41]). 7 The Federal Circuit Court summarised its overall assessment in these terms: 48. The applicant's submissions before the Court today, ultimately, went to the question of whether the applicant should be allowed to remain in Australia. He argued that there were reasons that his wife, and he, feared harm on return to Fiji, that these were compelling reasons, for both the intervention of the Court to allow them to remain, and also compelling and compassionate factors in the sense that the delegate should have found differently in the waiver request. 49. These submissions merely underline the applicant's misunderstanding of the proceedings before the Court, and that what he seeks from the Court is impermissible merits review. There is nothing in what was said that would cause the Court to consider that there may be some arguable assertion of error that should be considered in the interests of justice. 8 No error by the Federal Circuit Court is apparent. 9 Nor is it possible to discern any error of fact or law, let alone jurisdictional error, by the delegate in the assessment of the application for waiver of the condition. The delegate responded to the application as submitted, and was entitled to do so, reaching a conclusion that was reasonably open in the circumstances. 10 During the hearing of the application for an extension of time and leave to appeal the applicant handed up written submissions. However, the two issues raised in those submissions involve the same difficulties as confronted the Federal Circuit Court. The applicant is seeking to support his case by reference to matters never raised with the Minister's delegate, such as details of his wife's application for a protection visa. The applicant also is attempting to persuade that his circumstances are compelling when neither the Federal Circuit Court, nor this Court, are able to engage with the merits of his application. 11 In oral submissions, the applicant also said that he feared returning to Fiji due to the risk that he would be persecuted, referring to difficulties his wife had experienced. Again, however, the applicant's own fear of returning to Fiji due to a risk he would be persecuted was not put to the Minister's delegate in his application for waiver of the condition on his visa. 12 As a result, the appeal would have no prospect of success, with the consequence that neither an extension of time nor leave to appeal should be granted. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.