SZRSX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for leave to appeal filed on 7 November 2019 be dismissed.
2. The applicant pay the respondent's costs of the application, 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 applicant applies for leave to appeal from the order of the Federal Circuit Court of Australia (the Federal Circuit Court) dismissing her application for judicial review under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The decision under review was the decision of a delegate of the respondent Minister made on 13 February 2019 not to grant the applicant a waiver of visa condition 8503. 2 Leave to appeal is required because the order dismissing the application under r 44.12(1)(a) is interlocutory: s 44.12(2). 3 Visa condition 8503 was imposed on the applicant's tourist visa on her entry into Australia. It provides that: 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. 4 Having applied for and failed to obtain a protection visa on a number of occasions, the applicant applied for a waiver of visa condition 8503 on the basis that she wished to lodge a partner visa application and because she feared returning to her home country of Fiji. An earlier decision of another delegate of the Minister refusing to waive visa condition 8503 was set aside as unlawful: SZRSX v Minister for Immigration and Border Protection [2018] FCA 810. On the remittal of the application to the Minister, the delegate sought further supporting information from the applicant on three occasions but no further information was provided. 5 Section 41(2A) of the Migration Act 1958 (Cth) provided that the Minister may waive a condition such as visa condition 8503 in prescribed circumstances. The prescribed circumstances were set out in reg 2.05(4) of the Migration Regulations 1994 (Cth). Relevantly, what is required is that since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed over which the person had no control and that resulted in a major change to the person's circumstances. 6 The delegate considered that: (a) the applicant's decision to enter into a relationship and lodge a Partner visa was a personal choice and not a circumstance over which the applicant had no control, (b) the applicant's claim that her life would be at risk in Fiji was a circumstance over which the applicant had no control, (c) the applicant's desire to remain with her partner and her fear of returning to Fiji involve compassionate circumstances, (d) the applicant's desire to remain with her partner, given the lack of additional supporting information, is not sufficiently forceful to constitute a compelling circumstance, and (e) based on the available information, the applicant's claimed fear for her life if she returned to Fiji is not sufficiently forceful to constitute a compelling circumstance. As a result, the delegate was not satisfied that the prescribed circumstances in reg 2.05(4) existed and the waiver application was refused. 7 The Federal Circuit Court, in its reasons for judgment in SZRSX v Minister for Immigration (No 6) [2019] FCCA 3058, considered the grounds of judicial review on which the applicant relied and evaluated whether any legal error in the delegate's decision could be discerned given that the applicant was (and remains) without legal representation. The Federal Circuit Court concluded at [13] that: I can see no viable argument. The delegate considered the matters raised by the applicant. The delegate reached conclusions that were open on the material. The delegate clearly understood the task to be performed and the delegate was careful to avoid errors made previously. 8 The Federal Circuit Court also concluded at [25] that: On a fair reading, the delegate's reasons for finding that regulation 2.05(4) was not satisfied were neither legally unreasonable, nor lacking an evidentiary foundation. The delegate correctly identified and applied the law and gave genuine, proper and realistic consideration to the claims of the applicant and the evidence and material before it. There was furthermore a sufficient logical, evidentiary and intelligible basis for the delegate's findings. No legal, let alone jurisdictional error arises. 9 I agree. I am unable to discern any legal error in the reasoning of the delegate. Its approach to the two limbs of the applicant's claimed circumstances (her wish to make a partner visa application and her fear of returning to Fiji) accorded with the statutory requirements. The delegate's emphasis on the circumstances needing to be both compassionate and compelling, in the sense of sufficiently forceful to conclude that the condition should be waived, is consistent with principle: Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [22]-[23]; Farhat v Minister for Immigration and Border Protection [2018] FCA 93 at [27]. 10 The applicant made no submissions in support of her application for leave other than that she claimed that she had made her case in the documents (presumably, lodged in support of the application) and, as a woman, feared for her life if she had to return to Fiji. In the draft notice of appeal the applicant said she had given the information about her severe circumstances sufficiently forceful to waive the visa condition and the Federal Circuit Court overlooked the compelling circumstances preventing her from going to Fiji. She reiterated that "my circumstances are compelling and the [Minister] failed to accept them as compelling". 11 The Federal Circuit Court dealt with the applicant's case and did not overlook any aspect of her case. Otherwise, the proposed grounds of appeal are complaints about the merits of the conclusion the delegate reached that the applicant's circumstances were not compelling as required. From a review of the material before the Federal Circuit Court no legal error by the delegate or the Federal Circuit Court is apparent. 12 As a result, it cannot be concluded that there is sufficient doubt about the decision of the Federal Circuit Court to warrant its reconsideration. The application for leave to appeal must be refused with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.