LML6002 Australian Migration Law Management : Essay Fountain

Question:

Concisely explain the meaning of “compelling and compassionate circumstances” in the context of this decision.

The implications of the decision of Barnes J in relation to valid visa applications especially pertaining to an 8503 waiver.

 

Answer:

In this case it was submitted by the applicant that if the delegate was of the view that the evidence provided by the applicant was not sufficient, the delegation should have asked for further evidence so that the ‘bully but this was not done by the delegate. On the other hand, it was noted by the court that even if there was no provision in the Act or the Regulations which require the minister or his delegate to give reasons in writing for decision that they were not going to be waive a visa condition like condition 8503. In this case, the delegate had provided reasons in writing in notification letter. This allows consideration to be given to these reasons for the purpose of deciding, relevant for the concerns that have been expressed by the applicant, the issues that were considered by the delegate and particularly if the delegate happy to consider any evidence or submission in a manner that amounted to jurisdictional error. As submitted by the respondent under the circumstances in which there was an error in internal submission made to the delegate, it would not in itself establish any jurisdictional error which may infect the decision given by the delegate. The court further stated that in this case, rightly the delegate had referred to s41(2A) and regulation 2.05(4). While there can be some lack of clarity in the concluding part of the reasons given by the delegate, he had clearly summarized the basis for the reasons behind the decision. Particularly the court stated that it was not accepted that since visa was granted to the applicant subject to condition 8503, conditions have developed over which they are pretending not have any control and resulted in a major change in the circumstances of the applicant, which are both compelling and compassionate.

 

Therefore in other words, it can be stated that it was recognized by the delegate that it was necessary that the circumstances should be both compassionate and compelling. It was further indicated in view of the fact that it was accepted by the delegate that the various aspects of the claims made by the applicant one of compassionate nature, but was not satisfied that the circumstances were also compelling in nature.

Therefore it can be stated that it was for the delegate to form an opinion regarding if the circumstances on which the applicant had relied were comparing and compassionate or not. It further needs to be noted that the requirements mentioned in Regulation 2.05 are cumulative in nature. Therefore even if some of the circumstances, that were compassionate in nature were present, it would not be a sufficient circumstances are also not compelling circumstances and the circumstances over which the applicants had no control.

According to Regulation 2.05(4) there should be compelling and compassionate circumstances developed after the visa was granted to the person which was subject to condition 8503 (in the present case, since this applicant was granted subclass 456 visa) over which the applicant did not have any control and due to which, there was a major change in the circumstances of the applicant. In this regard, compelling circumstances refer to the circumstances due to which the decision-maker is posted, in a metaphorical, rather than physical sense, to decide if jurisdictional facts were present related with the exercise of the discretion. The phrase ‘compelling circumstances’ has not been construed authoritatively in any case and the whole debate relied on the dictionary definitions of the term “compelling”. It has been stated by the court in Babicci that under the circumstances of the case, correct question was asked by the decision-maker. By proceeding on the basis that compelling circumstances can be described as a circumstances which “forced or drove” or “compelled” a special result.

It was understood by the delegate that the term “compelling” has been used in context of regulation 2.05(4) in its ordinary sense. It needs to be considered keeping in view the facts of the case present before the delegate and consistent with the approach that was adopted in Thongpraphai. In the present case, the applicant also questioned the approach adopted by the delegate towards the concept of “circumstances…. overweight person had no control” as it related to the work accident. Under the circumstances, the court stated that the disagreement of the applicant with the failure of the delegate to accept that different aspects of his claims were compelling, does not result in jurisdictional error. Regarding the accident and the recovery, the concerns of the applicant were based on the fact, to some extent that the applicant had other medical evidence and now claims to have a “disability”. On the other hand, the medical evidence that was given to the delegate regarding the consequences of the accident was limited.

The court stated that in the present case the ground that the delegate had misinterpreted the difference that exists between compassionate and compelling circumstances was not made out in this case. In fact, it can be clearly stated on account of the reasons given by the delegate that he understood that the concepts of compassionate and compelling are distinct from each other and keeping in view regulation 2.05(4), the circumstances should the compelling, as well as compassionate.

Explaining the meaning of compelling circumstances, the Full Court had stated in Babicci that according to the opinion of the Court, compelling circumstances can be construed to mean the circumstances. As a director is forced to decide if jurisdictional facts are present, that requires the exercise of discretion. In this way, the circumstances should be so powerful that the decision-maker is forced to make a positive finding that the prohibition needs to be waived.

 

References

Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899

Soliman v University of technology, Sydney (2012) 207 FCR 277

Anani v Minister for Immigration [2014] FCCA 899

Cheema v Minister for Immigration and Citizenship [2011] FCA 121

Thongpraphai v Minister For Immigration and Multicultural Affairs [2000] FCA 1590

Migration Act, 1958 s41(2A)

Migration Regulation, 1994 Regulation 2.05(4). 

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