Wednesday, 2nd Augapplication for waiver of a no further stay condition on visa – whether the decision-maker failed to consider the visa applicant’s claim.

FEDERAL COURT OF AUSTRALIA

Karan v Minister for Immigration and Border Protection [2017] FCA 872

BETWEEN:

WILLIAM KARAN

Appellant

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

THE COURT ORDERS THAT:

   1.  The appeal is allowed.

  2. The orders of the Federal Circuit Court of Australia, dated 13 December 2016, are set aside.

  3. There be a writ in the nature of certiorari removing into this Court to be quashed the purported decision of the respondent made on 1 March 2016.

  4.  There be a writ in the nature of mandamus requiring the respondent to consider the appellant’s application for waiver of the condition in Sch 8,                cl 8503 of the Migration Regulations 1994 (Cth) according to law.

  5.  The respondent is to pay the appellant’s costs of the appeal and the application to the Federal Circuit Court of Australia.

REASONS FOR JUDGMENT

SIOPIS J:

• The appellant, a 41 year old citizen of Fiji, travelled from Fiji to Australia in June 2000 on a visitor’s visa to visit family members living in Australia. The appellant’s visa was subject to a condition, set out at cl 8503 of Sch 8 to the Migration Regulations 1994 (Cth), which had the effect of disentitling the appellant from obtaining any further visa, other than a protection visa, whilst he remained in Australia (the no further stay condition).
• On 1 March 2016, a delegate of the respondent, the Minister for Immigration and Border Protection (the Minister), refused the appellant’s application for a waiver of the no further stay condition.
• The appellant applied to the Federal Circuit Court of Australia for judicial review of the delegate’s decision.
• On 13 December 2016, the primary judge dismissed the appellant’s application for judicial review.  The appellant now appeals from that order of the Federal Circuit Court.

BACKGROUND

• The no further stay condition was imposed on the appellant’s visa pursuant to the regime established by s 41 of the Migration Act 1958 (Cth). Section 41 relevantly stated as follows:

Conditions on visas

   (1)   The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

   General rules about conditions

   (2)  Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

         (a) A condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive                visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

         (b) A condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of                              this paragraph, may be restrictions on doing:

                (i) Any work; or

               (ii) Work other than specified work; or

              (iii) Work of a specified kind.

  (2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is                   subject under regulations made for the purposes of that paragraph or under subsection (3).

• The appellant had been in Australia for some 15 years when, on 22 August 2015, the appellant married an Australian citizen.  The no further stay condition prevented the appellant from applying for a spouse visa.
• On 10 February 2016, the appellant applied, with the assistance of a registered migration agent, for a waiver of the no further stay condition pursuant to s 41(2A) of the Migration Act.  In support of the application for a waiver of the condition, the appellant and his wife each submitted statutory declarations, dated 9 February 2016, and the appellant also provided a medical certificate in relation to his wife.
• The appellant’s wife was approximately seven months pregnant at the time of the application.  The statutory declarations made by the appellant and his wife primarily related to the effect that the appellant’s removal from Australia would have on the mental health of his wife in light of medical complications with the wife’s pregnancy and the ongoing effect of an abusive previous marriage on her mental health.
• On 11 February 2016, the Department of Immigration and Border Protection (the department) wrote to the appellant seeking further medical information regarding the psychological condition of the appellant’s wife.  The department gave the appellant seven days to provide a response.
• On 16 February 2016, the appellant provided a report issued by Ms Josie Vander Reest (a victim services counsellor) and a report issued by Ms Toni Brown (a psychologist) to the department in response to the department’s request.
• In her report, Ms Brown recorded that Mrs Karan was referred to her by a family doctor because of her mixed anxiety and depression.  The report went on to state that records indicated that Mrs Karan’s first husband was physically violent towards her, leaving her with severe mental health issues, and that she has had ongoing counselling since 2012.  The report then referred to certain scores Mrs Karan had recorded in a test for stress, anxiety and depression, and went on to state:

     These results, together with the history of depression, trauma and suicide ideation suggest that Mrs Karan’s mental health could suffer, if her husband,      the stabilising influence in her life, is not there to support her through this difficult time of giving birth, and managing a new born baby.  The situation        has been made markedly worse, by the fact, that she is isolated from her family and their support.

THE DELEGATE’S DECISION

• On 1 March 2016, a delegate of the Minister refused the appellant’s request for a waiver of the no further stay condition on the basis that the appellant did not satisfy reg 2.05(4) of the Migration Regulations.
• Regulation 2.05(4) provided:

    (4) 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.

• Although the delegate was not legally obligated to provide reasons for decision, the delegate did so by publishing a two page “Decision Record”, which was annexed to the notification of refusal letter, dated 1 March 2016.
• It is not in dispute that the Decision Record contained the delegate’s reasons for decision.
• In those reasons, the delegate accepted that the appellant’s desire to remain in Australia with his wife during her pregnancy was “compassionate in nature”, however, the delegate did not consider the circumstances to be “compelling” in the ordinary sense of being “forceful or driving”.
• The delegate did not consider that taking into account the “full circumstances” of the appellant, including the two reports in relation to the appellant’s wife, there were “compelling” circumstances as required by reg 2.05(4) of the Migration Regulations.  The delegate provided short reasons for refusing to waive the no further stay condition on that basis, as follows.
• Whilst I accept that temporary separation as a couple may cause you and your wife some emotional distress, as would be expected by the separation from a loved one, I have considered that hardship due to separation is a common occurrence due to migration choices.  Upon request you have provided an additional psychological report in respect of your wife.  The report recommends your wife to continue with her regular counselling sessions in order to maintain her mental health and well-being as well as to consider the welfare of her unborn child in making this decision.  I have considered these as well as the report submitted by your family doctor stating that your wife has diabetes and is under their care.  In your personal statement you cite the your [sic] reason for wishing to remain in Australia is to care for your wife however there is no medical evidence to show that further care is required.  Whilst I accept your wish to remain in Australia with your wife, I have considered the full circumstances and do not consider your circumstances are sufficiently forceful to waive your no further stay condition.

THE FEDERAL CIRCUIT COURT

• On 4 March 2016, the appellant applied to the Federal Circuit Court for judicial review of the delegate’s decision.
• The application was heard in the Federal Circuit Court on 6 December 2016.  The appellant was represented by counsel and relied on two grounds of review:

    1. The Minister’s delegate breached the requirements of procedural fairness.

        Particulars

        (a) The delegate failed to consider the following matters advanced by and on behalf of the applicant in deciding whether to waive the condition in                 Migration Regulation [sic],Schedule 8, cl 8503.

              (i) The applicant’s spouse’s…need for emotional support in view of an abusive past marriage.

             (ii)  The expected effect of the applicant’s removal on [the wife’s] mental and physical health.

            (iii)  [The wife’s] need to have [the appellant] with her to care for their as yet unborn child in circumstances where [the wife] was seven months                       pregnant at the time of the application.

   2. The delegate failed to complete the exercise of his jurisdiction.

       Particulars

       (a) The applicant repeats the particulars in ground 1 above.

• The primary judge recorded that the appellant’s claim was that important aspects of the appellant’s claim before the delegate had not been considered by the delegate because they were not expressly referred to in the delegate’s reasons for decision.
• The primary judge observed that as a matter of principle the court was entitled to draw inferences from what is in, and what is not in, a decision-maker’s reasons even where, as in this case, there is no obligation on the decision-maker to give reasons.  The primary judge continued at [17]:
• Whether those inferences are drawn will be affected by all of the circumstances including the lack of requirement to give reasons:  the nature and identity of the decision-maker and the decision to be made; the extent and detail of the reasons; and the matters required to be considered by the decision-maker.
• The primary judge went on to state that he was not satisfied, by reference to the delegate’s reasons, that the delegate had failed to consider any of the circumstances put forward by the appellant in support of his application for waiver of the no further stay condition.  The primary judge concluded at [20]:
• The material before the delegate was neither complicated nor voluminous.  There is nothing to suggest that, contrary to the statements made in the delegate’s reasons, the delegate overlooked or simply failed to take into account, any aspect of the claims made by the applicant in support of his application.
• Accordingly, the primary judge dismissed the appellant’s application for judicial review on the basis that the delegate’s decision was not attended by any jurisdictional error.

THE APPEAL

• On 29 December 2016, the appellant appealed to this Court.  The appellant relied on one ground and repeated the particulars of the grounds before the Federal Circuit Court, as follows:

   1.  The Court Below erred in finding that the respondent considered the following matters put forward by the appellant in support of his                               application for waiver of the condition in Migration Regulation [sic], Schedule 8, cl 8503:

         (i) The appellant’s spouse’s…need for emotional support in view of an abusive past marriage.

        (ii) The expected effect of the appellant’s removal on [the wife’s] mental and physical health,

       (iii) [The wife’s] need to have the appellant with her to care for their as yet unborn child in circumstances where [the wife] was seven months                         pregnant at the time of the application.

• In my view, the fact that the delegate gave reasons in this case, although he was not obliged to do so, permits scrutiny of those reasons in order to determine which matters the delegate considered.
• In the case of Soliman v University of Technology, Sydney (2012) 207 FCR 277 (Soliman), the Full Court observed at [55]:
• Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account.  Such a failure may be exposed in reasons voluntarily provided.  And a failure to take into account such a submission may constitute jurisdictional error…
• It is the case that the materials which were placed before the decision-maker were not voluminous.  However, that circumstance is, in my view, a neutral consideration.  It was incumbent on the delegate to understand the claim which was being made in support of the application for the waiver and to address that claim, regardless of how voluminous or not the materials were.  As the Full Court has observed in Soliman, it is to be expected that, having decided to give reasons, the decision-maker would reflect the matters that he or she has considered and grappled with, in coming to the decision.
• There is an important difference between a decision-maker being aware of a document and its contents, and understanding and addressing the claim which is made in the document.  In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], Sackville J drew attention to the distinction when he observed:
• A decision-maker may be aware of information without paying any attention to it or giving it any consideration.
• In this case, it was at the forefront of the appellant’s claim that his wife had been subjected to domestic violence during her first marriage which had left her with “severe mental health issues” and that she had for some time been receiving counselling, that by reason of this pre‑existing condition and her history of anxiety and depression, trauma and suicide ideation, his wife’s mental health condition could suffer if he, being the stabilising influence in her life, was not there to support her through the difficult time of giving birth and managing a new born baby.  This was supported by the expert opinion of Ms Brown, the psychologist.
• In other words, the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation.  The case was a different case, namely, that his wife was a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues.
• Although the reasons given by the delegate refer to the psychologist’s report, the delegate does not address this issue in his reasons.  In fact, it is apparent that the delegate did not appreciate the nature of the case being made because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from “a loved one”.
• In my view, the primary judge erred in the manner pleaded in the ground of appeal.
• Therefore, the appeal is to be upheld, and orders in the nature of a writ of certiorari and a writ of mandamus claimed by the appellant, will be made.
• The respondent is to pay the appellant’s costs of the appeal and the application to the Federal Circuit Court.