Andrayani v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-16|Before: Foster J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 23 November 2010 (Andrayani v Minister for Immigration [2010] FMCA 992). The Federal Magistrate dismissed an application for judicial review of a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) made on 22 July 2010. The delegate had refused to waive condition 8503 which had been imposed on the appellant's Business (Temporary) Subclass 456 visa.

The Legislative Scheme 2 Section 41 of the Migration Act 1958 (Cth) (the Act) governs the imposition of conditions upon visas. That section is in the following terms: 41 Conditions on visas (1) The regulations may provide that visas, or visas of a specified class, are subject to specified 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). (3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection. 3 Condition 8503 is a condition within the class of conditions described in s 41(2)(a) of the Act. Item 456.612 in Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) provided at all relevant times that condition 8503 might be imposed on a Business (Temporary) Subclass 456 visa. That condition is provided for in Sch 8 to the Regulations. It appears under a heading Visa Conditions and is in the following terms: 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 Section 41(2A) of the Act provides that the Minister may waive a condition of the kind described in s 41(2)(a). The provision governing the circumstances in which the Minister may waive such a condition is reg 2.05(4) of the Regulations. That regulation provides: (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. 5 Section 46 of the Act lists the requirements for a valid visa application. Section 46(1A) provides that a visa application is invalid if, inter alia, the applicant has held a visa subject to a condition described in s 41(2)(a) and the Minister has not waived that condition.

The Relevant Facts 6 The appellant is a citizen of Indonesia who arrived in Australia on 4 February 2008 on a one month Business (Temporary) Subclass 456 visa (the appellant's 456 visa). That visa was granted subject to condition 8503. 7 On 20 February 2008, the appellant lodged an application for a protection visa. That application was refused on 12 March 2008. The appellant has subsequently unsuccessfully pursued numerous avenues of review in respect of that refusal. 8 On 24 June 2010, the Department of Immigration and Citizenship (the department) received from the appellant a duly completed Condition 8503 (No Further Stay) Waiver Request Form (the waiver request). In the waiver request, the appellant set out her reasons for seeking waiver of condition 8503 which had been imposed upon her 456 visa as follows: Please waive my 8503 because my circumstances have changed. My husband [husband's name] & I were blessed with the birth of our lovely son [son's name] who was born on 11 May 2010 (our son is Australian born). I wish to lodge an application for him to keep him in Australia because my husband's family will harm the child as he is Christian. I refuse to circumcise him such will not be accepted by our community & family in Indonesia. My husband does not have 8503 condition only myself. I ask your department to understand my compelling reasons to stay in Australia with my husband & newly born son. 9 An officer of the department prepared a briefing Minute for the delegate's consideration. In that Minute, the author discussed the waiver request. The officer set out her assessment of the waiver request against the criteria laid down in reg 2.05(4). The author of the Minute said: ASSESSMENT OF THE CIRCUMSTANCES OF THE CLIENT AGAINST SUBREGULATION 2.05(4): a) If the client has previously had a request for a waiver of condition 8503 and the condition was not waived, are the circumstances provided in relation to this particular request substantially different from those considered previously? N/A. This is the first waiver request from the client. b) Did the circumstances (stated in the written request for waiver) occur since the visa was granted? Yes. Ms Andrayani married [husband's name] in Sydney on 7 December 2008 and gave birth to their son in Australia on 11 May 2010. c) Did the circumstances result in a major change to the client's circumstances? Yes. Ms Andrayani's marriage, pregnancy and subsequent birth of her son, has resulted in a major change to her circumstances. d) Were the circumstances outside the client's control? No. Ms Andrayani married [husband's name] in Sydney on 7 December 2008 and gave birth to a son in Australia on 11 May 2010. However, marriage, pregnancy and subsequent birth of a child are naturally occurring events in any relationship between a man and a woman. These circumstances are within Ms Andrayani's control. e) Are these circumstances compelling? No. Compelling circumstances are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder has little or no alternative but to extend their stay in Australia; Ms Andrayani claims that she wishes to lodge an application for her son to keep him in Australia as she fears that her husband's family will harm the child as he is Christian. Ms Andrayani claims, 'I refuse to circumcise him such will not be accepted by our community and family in Indonesia.' It can be reasonably assumed that Ms Andrayani would have been aware of her husband's religious faith prior to their marriage and the birth of their son, furthermore Ms Andrayani would have been aware of possible consequences for her son such as, circumcision. In addition to this, Ms Andrayani and [husband's name] can choose not to contact [husband's name] family in Indonesia should they return. I do not find that these circumstances are compelling. f) Are these circumstances compassionate? Yes. Ms Andrayani arrived in Australia with her husband, [husband's name] as the holder of a 1 month single entry temporary business activities visa. Ms Andrayani claims that she has concerns for her son if they return to Indonesia due to her husband's family's religious faith and would like to remain in Australia with her husband and son. 10 The author of the Minute considered that the appellant's circumstances were not circumstances of the kind provided for in reg 2.05(4) of the Regulations. She therefore recommended that the 8503 condition on the appellant's 456 visa not be waived. 11 The delegate decided not to waive the condition. She did so by ruling through the word "waived" and leaving untouched the words "not waived" on the last page of the Minute. Having ruled through the word "waived" in the manner which I have indicated, the delegate then signed the Minute and dated it 22 July 2010. 12 On the same day (22 July 2010), the department notified the appellant of the delegate's decision.

The Decision of the Federal Magistrate 13 On 23 August 2010, the appellant applied to the Federal Magistrates Court for judicial review of the delegate's decision. On 1 November 2010, the appellant filed an Amended Application in which she sought an order that the Minister show cause as to why a remedy should not be granted in respect of the delegate's decision made on 22 July 2010. The grounds set out in the appellant's Amended Application in support of the relief sought by her in that Application were in the following terms: 1. The delegate of Minister failed to understand the harm which will be suffered and caused to our son because he is Christian. 2. While major change of circumstances is acknowledged the delegate failed to see that the relationship between me & my husband is different because my husband changed his religion & married me as a Christian and the department is aware of that & neglected to see that harm will be caused by my husband's Muslim family. 3. My circumstances were not accepted as compelling because the department does not understand what compelling is. 14 The appellant's Amended Application was heard by the Federal Magistrate on 23 November 2010. The appellant appeared in person with the aid of an interpreter. 15 At [1]-[14] of his Reasons, the Federal Magistrate summarised the relevant law and referred to the background to the appellant's making the waiver request. 16 The Federal Magistrate considered each of the grounds of appeal raised by the appellant in turn. 17 As to the first ground, the Federal Magistrate took the view that the delegate had considered the harm to which the appellant had pointed in the waiver request should she be required to return to Indonesia. Referring to par (e) of the assessment made by the departmental officer in the Minute briefed to the delegate, the Federal Magistrate concluded that the delegate had understood the harm which the appellant claimed she would suffer should she be returned to Indonesia. The Federal Magistrate held that the assessment made by the author of the Minute and thus, by implication, the delegate, was one which was open to her in the circumstances. 18 As far as the second ground raised by the appellant before the Federal Magistrate was concerned, the Magistrate held that that ground had not formed part of the reasons advanced by the appellant to the delegate in support of her waiver request. She had not mentioned in the waiver request the fact that her husband had changed his religion from Islam to Christianity and that, should the appellant be required to return to Indonesia, she was at risk of harm from her husband's Muslim family. The Federal Magistrate held that it was not jurisdictional error for the delegate not to advert to and take account of ground 2 when the substance of ground 2 had not been included in the appellant's waiver request as a reason in support of her application that the Minister waive condition 8503. 19 As part of his consideration of ground 2, the Federal Magistrate said (at [22]): 22. Further, in considering whether Ms Andrayani's change in circumstances had been outside of her control, the departmental officer indicated that "marriage, pregnancy and subsequent birth of a child are naturally occurring events in any relationship between a man and a woman. These circumstances are within Ms Andrayani's control" (CB 14). The applicant's marriage was deemed not to be a circumstance beyond her control for the purposes of reg.2.05(4). This was also open to the delegate on what was before her. 20 His Honour dealt with ground 3 at [28]-[31] of his Reasons. His Honour referred to and extracted passages from Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590, Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 and Terera v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 335. In the first of those cases, O'Loughlin J said that the circumstances which were claimed to be compelling and compassionate had to be "far-reaching and most heavily persuasive". In the last of those cases, Kenny J said that there had to be a major change in the circumstances of the visa holder since the visa was granted. 21 At [31] of his Reasons, his Honour said: 31. Whichever approach is to be preferred, it is apparent that the delegate's assessment of Ms Andrayani's circumstances (as set out at [18] above) did not result from a misunderstanding or misconstruction of "compelling" circumstances for the purposes of reg.2.05(4). No error is revealed in this regard. 22 His Honour concluded his Reasons as follows (at [32]-[35]): 32. Before the Court today the applicant read from a written submission in English. She complained that the Minister's department did not understand her problem and she made reference, again, to the circumstances of her son's birth, his Christianity. She asserted that the delegate made an error of law because the department did not understand that the birth of her child was special and that the circumstances arising from the birth of her son were different from the circumstances as they existed before her marriage and subsequent birth of her child. 33. As I sought to explain to the applicant today, however, it is not sufficient for the purposes of reg.2.05(4) that the circumstances which have developed are simply different, but the circumstances must be such as to be circumstances over which the applicant had no control. 34. In short, on what has been put before the Court, both the officer preparing the submission and, consequently the delegate dealt with all of the circumstances as put forward by the applicant for the purposes of her request for a waiver. They understood and properly applied those circumstances to the relevant regulatory test as to whether those circumstances were compelling and compassionate, as those terms are understood at law. 35. I am satisfied on what is before me, that the officer in the Minister's department who prepared the submission, and the delegate, properly understood and applied the relevant regulatory test. 23 For the reasons which I have summarised at [15]-[22] above, the Federal Magistrate concluded that the delegate had not made any jurisdictional error and that the appellant's application before him should be dismissed with costs.

The Appeal in this Court 24 The appellant filed a Notice of Appeal in this Court on 14 December 2010. In that Notice of Appeal, the appellant seeks to have the decision of the Federal Magistrate quashed. 25 The grounds of appeal specified by the appellant in that Notice of Appeal are as follows: 1. His Honour failed to understand that the delegate of the Minister failed to see me harm suffered & will be suffered if compelled to go to Indonesia. 2. The department & His Honour ignored the harm which will be caused by Muslim because of our acceptance of Christian faith.

Consideration 26 I propose to deal with grounds 1 and 2 in the appellant's Notice of Appeal together as there appears to be some overlap between the two grounds. 27 The basis upon which the appellant sought a waiver of condition 8503 in respect of her 456 visa was expressed as follows: (i) In the period between the date when the appellant obtained her 456 visa and the date of the waiver request, the appellant married and gave birth to a son. (ii) If she is required to return to Indonesia, she will take her son with her. At the present time, her son is nine months old. (iii) Her son is a Christian. (iv) Those members of her husband's family who live in Indonesia are Muslim and, if given the opportunity, will harm her son because he is Christian. In this regard, her refusal to circumcise her son will not be accepted by the Muslim community and, in particular, her husband's family in Indonesia. 28 The Federal Magistrate found that the delegate had adequately addressed the matters relied upon by the appellant in the waiver request by considering the assessment made by the author of the briefing Minute provided to her. In particular, the Federal Magistrate held that the author of that Minute had squarely addressed the reasons advanced by the appellant in the waiver request for seeking a waiver of condition 8503 in the remarks which the author of the Minute made in respect of the question of whether the circumstances were "compelling" (par (e)). The Federal Magistrate held that the assessment made in par (e) was one which was open to the delegate in the circumstances of this case. 29 In my view, the Federal Magistrate was correct when he decided that the matter relied upon by the appellant in the waiver request had been adequately addressed in the briefing Minute and thus by the delegate. As far as that matter is concerned, the appellant has failed to demonstrate any error on the part of the Federal Magistrate. 30 Insofar as grounds 1 and 2 seek to raise a claim by the appellant that, if she were compelled to return to Indonesia, she herself would be in danger from her husband's family because he had converted from the Muslim religion to the Christian religion at her instigation, I am also of the view that the Federal Magistrate was correct in the way in which he dealt with this claim. 31 As is apparent from the summary of the Federal Magistrate's reasons which I have given at [15]-[22] above, the Federal Magistrate held that the appellant had not relied upon a ground in these terms before the delegate. The waiver request did not contain any claim made by the appellant to the effect that she herself would be at risk were she obliged to return to Indonesia let alone a claim to that effect for the reason that her husband had converted from the Muslim religion to the Christian religion. The Federal Magistrate held that the delegate had not committed jurisdictional error by failing to address a claim which had not been made before her. In my view, the Federal Magistrate was plainly correct in concluding as he did. 32 The appellant has appeared before me this morning. She put submissions to me in English by reading from a statement in English prepared by her before the hearing. The contents of that statement constituted a repetition of the submissions and arguments which the appellant had put to the Federal Magistrate. She reiterated that, in her submission, the delegate had not understood the harm which she and her son were likely to suffer if they were obliged to return to Indonesia. 33 In reality, the appellant now seeks impermissibly to traverse the merits of the delegate's decision under the guise of judicial review. This is an invitation to the Court to stray into the forbidden territory of merits review (as to which see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611). This the Court cannot do. 34 For all of the above reasons, the appeal must be dismissed with costs. There will be orders accordingly. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

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