Kishore v Minister for Immigration & Multicultural Affairs

Factual background 7 On 19 September 1997, the applicant's husband ("the Husband") was granted a Subclass 686 visa. On 20 July 1998 the applicant ("the Wife"), was also granted a Subclass 686 visa. The visas permitted multiple entry into Australia provided that no entry was after 19 September 2001 and that the visa holder remained in Australia for no more than 6 months from the date of each arrival. Thereafter, the Husband and Wife entered Australia on a number of occasions pursuant to their visas. 8 Relevantly, they entered Australia pursuant to the visas on 31 August 1999. On 8 February 2000, while in Australia, the Wife lodged an application for further stay as a visitor seeking, in effect, an extension of her then current stay until 31 August 2000. It appears that the Husband made a similar application at the same time. A visa was granted to the Husband permitting him to remain in Australia until 31 August 2000. However, no visa was granted to the Wife at that stage because of concerns as to the state of her health. 9 On 24 February 2000, the Wife completed a form relating to a chest x-ray, and she underwent a chest x-ray on 25 February 2000. On 28 February 2000 the Wife also completed a form relating to medical examination. A medical practitioner's report dated 28 February 2000 formed part of that form. 10 By report dated 17 March 2000, a medical officer of the Commonwealth ("MOC"), stated that the MOC was unable, on the basis of information then held, to reach an opinion as to the ability of the Wife to meet the prescribed health criteria in relation to the grant of a visa. A further similar report was made by an MOC on 6 June 2000. Because of these delays in obtaining medical clearances for the Wife, a decision was made to grant a visa to the Wife with a condition 8503 attached, upon her signing a health undertaking. 11 On 30 June 2000, the Wife signed a health undertaking, whereby she undertook to report as directed to the State or Territory Health Authority to which she was referred; to present her copy of that undertaking to that health authority; to place herself under the health authority's professional supervision; and to undergo any required course of treatment or chest x-ray examinations. On the same day the Wife completed a further undertaking relating to condition 8503 in the following terms: " UNDERTAKING VISA GRANT SUBJECT TO CONDITION 8503 "NO FURTHER STAY" I, SEOMANTI, a citizen of FIJI, and holder of passport number 402589,declare that I have been fully counselled by the officer of the Department of Immigration and Multicultural Affairs named below, about the meaning of Condition 8503 of the Migration Regulations which states 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." I herby acknowledge that I understand and accept the restriction that Condition 8503 places on me. [Shu Mati] ....................................... Dated: 30/6/00 Visa Holder's signature Name: [SEOMANTI] At [DIMA THE ROCKS SYDNEY] ....................................... Dated: 30/6/00 DIMA Officer's signature Name:" 12 On the same day, 30 June 2000, the Wife was granted a further Subclass 686 visa. The visa permitted the Wife to remain in Australia until 31 August 2000. The visa also permitted multiple entries to Australia provided the Wife did not arrive after 19 September 2000. Thereafter the Wife was entitled to remain in Australia for no more than six months from the date of each arrival. Importantly, the visa was expressed to be subject to condition 8503. 13 On 14 August 2001, the Wife and the Husband submitted to the Department of Immigration and Multicultural Affairs ("the Department") a joint application for permanent residence visas as aged parents. Because condition 8503 had not been waived in respect of the wife, the Department did not permit the joint application to proceed. 14 On 15 August 2000, the son of the Husband and Wife ("the Son"), who is an Australian resident, made an oral request to have condition 8503 waived for the Wife. The request was confirmed by letter dated 23 August 2000 from the Son to the Department. In that letter, the Son stated that he first became aware of the imposition of condition 8503 on 14 August 2000, when it was pointed out to him by an officer of the Department during his attempt to lodge the joint application for permanent residence on behalf of his parents. 15 On 21 September 2000 a delegate of the Minister declined to waive condition 8503: An internal memorandum of the Department records the following reasons: "• The Rocks Regional office advises that [the wife] was counselled and signed a written undertaking on the 8503 condition. • The purpose of imposing the 8503 condition on her visa is to prevent the applicant from applying for a substantive visa onshore. It would appear that [the wife] may have had the intention to remain in Australia. • [The wife] has failed to establish a change in her circumstances since the grant of her visa. At the time of visa grant, the applicant was fully aware of the 8503 condition and its consequences. Thus this is not a compassionate and compelling reason developed SINCE the visa grant." 16 By letter of 21 September 2000 the Wife was notified of the decision not to approve her request to waive condition 8503. By letter of 29 October 2000 the Son requested review of the decision not to waive condition 8503. On 1 November 2000 a delegate of the Minister wrote to the Son saying: "I have examined the circumstances surrounding the imposition of an 8503 condition on your mother's visitor visa and the subsequent decision not to waive that condition. I am satisfied that both of those decisions were made lawfully and in consideration of Departmental policy on such matters. As you have indicated, the merits of the decisions taken are not internally reviewable by the Department or by the Migration Review Tribunal. However, you may seek Judicial Review of the decisions through the Federal Court… The application for an aged parent visa made by your father may proceed. The application by your mother is not valid because of the 8503 condition. Your father may remain in Australia throughout the processing of the application, but your mother must depart when her current substantive visa expires." 17 On 2 November 2000 an application was lodged by the Husband for an aged parent residence visa. That application was lodged in substitution for the earlier joint application that had been lodged on behalf of both the Husband and the Wife. 18 By letter of 2 November 2000 an officer of the Department acknowledged receipt of the Husband's application for permanent residence. The letter went on to say as follows: "This application includes yourself only. Your current substantive visa ceases on 23 March 2001. This visa does not allow you to work. When you lodged your application you were granted a bridging visa. When your current substantive visa ceases the bridging visa will come into effect. Although your spouse is not included in the application, the Migration Regulations require that she meet health and character requirements being part of your family unit." The Husband and Wife had previously left Australia and subsequently returned on 23 September 2000. Hence the statement that the Husband's "substantive visa" ceased on 23 March 2001. 19 On 3 October 2001, Messrs Diamond Peisah, the Wife's solicitors, wrote to the Department on behalf of the Wife making a further request for waiver of condition 8503. The letter included the following: "Since the last application for the waiver, our client has undergone ophthalmic surgery as well as laser treatment. We enclose a brief medical report from Dr John Sarks dated 20 August 2001, the contents of which are self-evident. The report was prepared at a time when [the wife] had a cataract extraction of the right eye and since then, on 10 September, [the wife] underwent a cataract extraction for the left eye. We have been informed that prior to the operation, both cataracts were 'ripe' which substantially impaired our client's sight. You will also note the comments of Dr Sarks in relation to the laser treatment. Our client doubts that similar treatment is available in Fiji. All medical treatment has been privately funded. We are concerned that should [the wife] be obliged to return to Fiji at this stage, her medical progress may be impaired. It is our submission that the requirements of Regulation 2.05(4) are met in that compelling and compassionate circumstances have developed over which [the wife] had no control and which have resulted in a major change to her circumstances. The circumstances of which we speak are those of a substantially degenerating sight. It is our further submission that the circumstances are considerably different to those previously considered as the operations and laser treatment were only recently effected. We also submit that the Department should also take into account the fact that the waiver of the condition would in no way breach any important principle which is reflected in the Regulations. We are dealing with an aged couple who would normally be entitled to jointly make an application as aged parents in Australia and be dealt with pursuant to the relevant visa subclass. The effect of a refusal to remove the waiver would almost certainly have the effect on [the husband's] application in that he would be obliged to follow his Wife abroad which would ultimately cause his application to be rejected onshore and he would be obliged to recommence the entire application in Fiji. We would submit that this should be avoided." 20 On 11 October 2001, a delegate of the Minister wrote to the Wife referring to her request for waiver of visa condition 8503 of 3 October 2001 and saying that the writer had decided not to approve her request. The letter went on to say: "This means that the effects of the condition remain in place. You are therefore unable to make an application for a substantive visa while you remain in Australia. There is no review of this decision. As your present visa ceased on 08 October 2001, you are presently unlawfully in Australia. I would suggest that you approach the DIMA office nearest to where you live as soon as possible to make arrangements for your departure from Australia." 21 An internal memorandum of the Department concerning the decision not to approve the request for waiver sets out the reasoning for the decision as follows: "Background This is [the wife's] second request for the waiver of an 8503 condition which was lawfully imposed with her knowledge and consent. The first request for a waiver was lodged at this office on 15 August 2000 and was refused on 21 September 2000 on the grounds that the waiver was sought solely for the purpose of permitting her to lodge a permanent residence application while in Australia. The visa which was granted to [the wife] at The Rocks office was issued on 30 June 2000. It was made valid until 19 September 2001 and permitted multiple entries into Australia with a stay period of six (6) months from the date of each arrival. The present request was lodged at this office, by fax, on 03 October 2001. [The wife] has made many entries into Australia on a number of visitor visas. She has had many visitor visas granted to her. Calculations have shown that between 04 October 1996 and 04 October 2001 she has spent all of the time in Australia except for 179 days. Another calculation has shown that in the last two (2) years she has spent only forty three (43) days outside of Australia. It is amply evidence that, although during all of this time she has been the holder of a visitor's visa, hers was not the intention to 'only visit' - as required under Migration Regulation 866.221(2)(c) - but, rather, to wait out sufficient time in Australia until she or her Husband should reach such an age as one or the other could lodge a Permanent Residence application while in Australia. [The Husband] lodged an application for Permanent Residence under the Aged Parent category on 02 November 2000 - after her request for the waiver of the 8503 condition had been refused and in the knowledge that [the wife] would not be able to do likewise. All matters relating to [the wife's] intention to apply for Permanent Residence, as the spouse of an Aged Parent category applicant have been canvassed and clearly explained in Family Residence Manager's letter dated 14 December 2000 addressed to [the son]. It is also a matter of record that [the wife] had had the 8503 condition fully explained to her in the presence of her daughter and that its effects had been fully understood and accepted by her and that she signed the undertaking without hesitation prior to its being imposed upon her visa. Request [The wife] has lodged a second request for the waiver of the 8503 condition imposed by The Rocks office on 30 June 2000. The written request, dated 03 October 2001, was prepared by DIAMOND PEISAH, Solicitors. Recommendation Under regulation 2.05(4)(a) of s 41 (2A) Migration Act, the Minister may consider waiving the effects of the 8503 condition where 'compelling and compassionate circumstances have developed since the person was granted the visa or since the last request for a waiver was considered'. In regard to this applicant's grounds for waiver: · The basis of the request prepared on behalf of [the wife] is that 'Since the last application for the waiver, our client has undergone ophthalmic surgery as well as laser treatment.' · Dr John Sarks' letter, dated 20 August 2001, tendered in support of [the wife's] request, states, in part: 'The treatment is in progress and it will be several months before this is completed.' · This gives rise to the conclusion that [the wife] should have been fit to travel back home by the cease date of her last visa. · [The wife] is in Australia on a Visitor visa, which is not the appropriate visa upon which medical treatment is to be undertaken. · [The wife] last departed Australia on 18 March 2001 (after her first waiver request had been refused) and, had she contemplated medical treatment, should have sought a Medical Treatment visa from Suva before returning to Australia on 08 April 2001. · I have been unable to find any change of circumstances since her first waiver request was refused which could be construed as compelling or compassionate. I recommend therefore that this request be DENIED."

THIS PROCEEDING 22 The Wife seeks relief in relation to the decision not to waive condition 8503. The grounds upon which review is sought may be summarised as follows: 1. The decision maker failed to take into account that condition 8503 had been imposed erroneously in so far as it was based on health grounds.

2. The decision maker failed to have regard to the circumstance that the Husband would be entitled to remain in Australia until his permanent residency application had been determined, but the Wife would be required to leave Australia forthwith. 3. The conclusion that the Wife should have been fit to travel back home by 8 October 2001, the "cease date of her last visa", did not, as a matter of logic, follow from the fact that Dr Sarks' letter had said that her treatment was in progress and it would be several months before that treatment was completed.

4. The decision-maker failed to take into account the fact that the Wife needed medical treatment as a result of substantially degenerating sight and would not be able to continue her medical treatment in Australia.

23 The matter first came before me for directions on 14 December 2001. On that occasion I directed the Wife to file and serve any amended application on or before 8 February 2002. No amended application was filed. However, when the matter was called on for hearing on 21 February 2002 counsel for the Wife sought leave to file an amended application. 24 I indicated that I would hear full argument on the substance of the matter in order to determine whether leave should be given to file an amended application. In the course of argument, counsel for the Wife also foreshadowed further amendment to the application. At the conclusion of argument on the substance of the matter, counsel indicated that he was not in a position to address on the jurisdiction of the Court to entertain the application as it was proposed to be amended. I therefore adjourned the hearing of the matter to 25 February 2002. Since the adjournment was occasioned by the lack of readiness on the part of the Wife, I ordered that she pay all costs incurred after 21 February 2002 in any event. I also directed that counsel for the Wife take steps to ensure that she be informed, in writing, of the circumstances concerning that order for costs. 25 On 25 February 2002 I gave leave, without opposition, for the Wife to file an amended application. However, in the course of the hearing on that day counsel for the Wife made an application for leave to make a further amendment. For reasons given earlier today I refused that leave.

resolution of the proceeding 26 A preliminary issue arises as to the jurisdiction of the Court to entertain the application in its present form. Assuming that the Court has jurisdiction, it will then be necessary to consider the merits of the grounds of review.

jurisdiction 27 Under her amended application, the Wife claims the following orders: "(a) That the Respondent be enjoined and is hereby enjoined from taking any action and/or directing and/or allowing any action to be taken to cause the applicant to leave Australia until further Order. (b) That the Respondent's decision be set aside and the Respondent cause the Applicant's application to be reconsidered according to law. (c) That the Respondent pay the Applicant's costs of these proceedings. (d) That the Respondent accept and consider accordingly to law the application lodged with her husband on or about 14 August 2001." 28 That relief is sought in support of the application for review of the decision of 11 October 2001 notified in the delegate's letter of 11 October 2001. That decision was made in respect of the request to waive condition 8503 made in the letter from Diamond Peisah of 3 October 2001. The power to waive that condition is contained in s 41(2A). In effect, the Wife contends that the decision purportedly made refusing to exercise the power conferred by s 41(2A) was flawed because of the failure to take into account the relevant considerations referred to above. 29 The Minister contends that that decision is not subject to review by reason of the operation of s 474(1) of the Act. Section 474(1) provides as follows: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 30 Section 474(2) defines the expression "privative clause decision" as meaning, relevantly, a decision of an administrative character made under the Act. Under s 474(3) a reference in s 474 to a decision includes a reference, inter alia, to "refusing to remove a condition". The Minister contends that the purported decision under s 41(2A) is a decision of an administrative character made under the Act within the meaning of s 474(2) and that, accordingly, it is beyond the power of the Court to review the decision by the operation of s 474(1). That contention is advanced whether or not a distinction can be drawn between waiving a condition as contemplated by s 41(2A), on the one hand, and refusing to remove a condition as contemplated by s 474(3), on the other hand. 31 A provision such as s 474(1) is to be interpreted as meaning that no decision which is in fact given by the decision maker concerned is to be invalidated on the ground that he or she has not conformed to the requirements governing his or her proceedings or the exercise of his or her authority or has not confined his or her acts within the limits laid down by the Act, provided always that the decision is a bona fide attempt to exercise the power, that the decision relates to the subject matter of the legislation and that the decision is reasonably capable of reference to the power given to the body - R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615. 32 Where the legislature confers authority subject to limitations, and at the same time enacts a provision such as s 474(1), it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. Any decision given which, upon its face, appears to be within power and is in fact a bona fide attempt to act in the course of the authority of the decision maker is not to be regarded as invalid - Hickman's Case at 616. 33 No suggestion has been made that the first of the three conditions referred to in Hickmans Case has not been satisfied in the present case. Rather, reliance is placed on the second and third conditions. The requirement that the decision be reasonably capable of being referred to the power will be satisfied if, on the face of the record, it appears that the decision was made by the Minister in purported exercise of the power of deciding whether or not to waive the condition conferred by s 41(2A) - see Jack O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 286-7. 34 The fourth prayer in the amended application is not sustainable for the reasons that I gave in refusing leave to amend to seek review of that decision. It seeks, in effect, an order that the Minister accept the application for permanent residence made by the Wife on 14 August 2000. However, while under s 47(1) the Minister is to consider a valid application for a visa, s 47(3) provides that the Minister is not to consider an application that is not a valid application. 35 Section 46(1A) provides that an application for a visa is invalid if: · since last entering Australia, the applicant has held a visa subject to a condition described in s 41(2)(a); and · the Minister has not waived that condition under s 41(2A).

The Wife's application of 14 August 2000 was an invalid application since, at that time, she held a visa that was subject to condition 8503 that had not been waived by the Minister. 36 The memorandum of 11 October 2001, which records the decision not to waive condition 8503, is properly to be construed as a determination by the Minister's delegate that prerequisite (b) under Regulation 2.05(4) was not satisfied. As the delegate's reasons indicate, the basis of the request made by Diamond Peisah was that "since the last application for the waiver, our client has undergone ophthalmic surgery as well as laser treatment". The reasons record that the decision maker had been unable: "to find any change of circumstances since her first waiver request was refused which could be construed as compelling or compassionate." 37 Thus, the delegate considered the question of whether or not the prescribed circumstances existed under which the power in s 41(2A) could be exercised, and concluded that they did not. If that question is outside the power of the Minister under s 41(2A), then Hickman's Case would permit review of the decision by the Court. On the other hand, if, on the true interpretation of the provisions, that question is within the power of the Minister, s 474(1) is effective to exclude any review by the Court. 38 Section 41(2A) itself is neutral as to whether the Minister can determine what are prescribed circumstances. It is necessary, therefore, to consider r 2.05(4), which prescribes the circumstances. The Minister's delegate, in effect, concluded that the prerequisite in r 2.05(4)(b) was not satisfied. That prerequisite depends upon the Minister, or his delegate, being satisfied as to whether, assuming circumstances referred to in r 2.05(4)(a) exist, those circumstances are substantially different from those previously considered. That is to say, the Minister previously declined to waive condition 8503 on 21 September 2000. The unequivocal conclusion of the Minister's delegate on 11 October 2001 was that the circumstances that might satisfy paragraph (a) were not substantially different from those considered in making the decision of 21 September 2000. 39 It may be that the prerequisite of r 2.05(4)(a) is an objective matter that is capable of review by the Court, although the presence of terms such as "compelling and compassionate circumstances" suggest to the contrary. I express no view on that question. However, it is clear that the requirements of paragraph (b) involve a subjective assessment by the Minister or the Minister's delegate. That indicates that the question of whether or not the Minister is satisfied is a question to be determined by the Minister and is not to be the subject of review by the Court. 40 It follows that the effect of s 474(1) is to exclude any review of the decision of 11 October 2001 by the Court.

GROUNDS OF REVIEW 41 In the light of the conclusion that I have reached, it is strictly unnecessary for me to consider the substance of the grounds of review. However, since the matters have been fully argued, I will express my views concerning those matters. 42 The first ground concerns the assertion that the decision to impose condition 8503 on 30 June 2000 was flawed because it was based on health grounds. This ground, in effect, entails a collateral attack on the decision made on 30 June 2000, in circumstances where that decision has never been the subject of any formal application for review. For the reasons that I indicated earlier today, it is now no longer possible for that decision to be called in question, assuming it was ever capable of review. 43 It is clear, in my view, that Parliament did not intend that reviewable decisions under the Act should be amenable to such a collateral attack as would be involved in the consideration of this ground. Collateral attack in that sense is a challenge, the primary object of which is not to set a decision aside, but to determine other issues in the course of which the validity of the decision arises (see Coffey v Secretary, Department of Social Services [1999] FCA 375 at [26]). 44 I do not consider that it is permissible for the validity of the decision of 30 June 2000 to be called into question in this proceeding. In any event, even if it were and the Wife was successful in establishing that the delegate had wrongly had regard to medical or health considerations in imposing the condition, that would not be a ground for impugning the basis upon which the decision of 11 October 2001 was made. The delegate concluded that there had been no change in circumstances such as would attract r 2.05(4)(b). That is the only basis upon which, putting aside s 474(1), the decision could be impugned. I do not consider that this ground could have been established. 45 The second ground concerns the failure to have regard to the circumstance that the Husband would be entitled to remain in Australia whereas the Wife would be required to leave Australia. I consider that a fair reading of the memorandum of 11 October 2001 indicates that this question was considered by the delegate. The memorandum clearly refers to the letter 3 October 2001 from Diamond Peisah. As I have indicated, that letter makes the assertion that the effect of a refusal to remove the condition will almost certainly be that the Husband would be obliged to follow his Wife abroad. The delegate referred to the fact that the Husband had lodged an application for permanent residence on 2 November 2002 after the Wife's first request for the waiver of condition 8503 had been refused and that he had done so in the knowledge that the Wife would not be able to do likewise. 46 It is quite clear, in my view, that the delegate had regard to the fact that Husband would be entitled to remain in Australia whereas the Wife would not be entitled to do so. Having regard to the observations made by Diamond Peisah, that the Husband would be "obliged to follow his wife abroad", there would be no question of their being separated by reason of the decision. Once again however, the only question was whether or not there had been a change in circumstances since the decision of 21 September 2000. This matter does not go to that issue. 47 The third ground appears to me to be misconceived. There is nothing in the letter from Dr Sarks to suggest that the Wife would not be fit to travel back home by the final date of her last visa, namely 8 October 2001. The letter simply said that treatment was in progress and that it would be several months before the treatment was completed. It is quite consistent with that to conclude that the Wife would have been fit to travel back home by 8 October 2001, notwithstanding that that was not several months after Dr Sarks' letter. I do not consider that there is any substance in this ground. 48 The final ground concerns the continuing requirement of the Wife for medical treatment in Australia. There is a comment in the memorandum, that may be construed as adverse, to the effect that the Wife should have sought a medical treatment visa before returning to Australia, rather than come to Australia on a visitors visa and then having medical treatment while she was here. Be that as it may, the question before the delegate was whether there had been any change in circumstances. That is to say, was the delegate satisfied that the circumstances that might have justified waiver were different from those considered in the course of the decision made on 21 September 2000 The only matter advanced by the solicitors as to change in circumstances was that the Wife had undergone ophthalmic surgery and opthalmic laser therapy. So much is asserted in the letter of 3 October 2001. That matter is expressly referred to in the memorandum of 11 October 2001. That is recorded as the basis of the request. 49 The conclusion was that the delegate, notwithstanding consideration of those matters, was unable to find any change of circumstances since the first waiver request had been refused. There is no basis in my view for contending that the delegate had failed to take into account those matters in reaching a conclusion that there was no difference in the circumstances of the Wife. 50 It follows in my view that, even if the Court has jurisdiction, there would be no ground for review of the decision of 11 October 2001. Accordingly, I consider that the application should be dismissed with costs. I certify that the preceding fifty (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Date of Hearing: 21, 25, 26 February 2002