Mohamad v Minister for Immigration & Multicultural Affairs

Relevant legislation 4 Section 41(2A) of the Migration Act 1958 (Cth) ("the Act") provides: "[t]he 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…" 5 There is no doubt that the condition which had been attached to the applicant's visa was "a condition of a kind described in paragraph 2(a)". 6 Subclause 4 of Regulation 2.05 provides: "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."

The applicant's case as put to the Minister's delegate 7 A request of 24 July 2000 by the applicant's solicitor informed the Minister's delegate that the applicant met those prescribed criteria because she was unable to travel due to a leg injury sustained by her in a fall since her arrival in Australia. Attached to the letter containing the request for waiver of the condition was a medical certificate which indicated that the applicant would be unfit to travel from 3 July 2000 to 3 October 2000. Nothing was ever put to indicate unfitness to travel beyond that date. 8 On receipt of this material, an officer of the respondent Minister's department required the applicant to undergo a medical examination and the applicant was duly medically examined by a Dr S G Ryerson. Dr Ryerson concluded that the applicant was fit to travel by air. 9 There was, however, a misunderstanding and the applicant's request for waiver of the condition was rejected upon the basis that the applicant had not undergone the requested medical examination within a reasonable period of time. The applicant commenced proceedings in this Court seeking a review of the Minister's decision and, upon the mistake being made clear, the respondent Minister consented to the Court ordering on 8 December 2000, that the request for a waiver be reconsidered by a different delegate. 10 On 8 January 2001, the applicant's solicitors sent a letter to the respondent Minister's delegate in the following terms: "I refer to the Orders made by the Federal Court in this matter on 8 December 2000 and request that you also take the following matters into account. I am instructed, that since her arrival in Australia my client has become totally dependant upon her family. The dependency has occurred due to her incapacity as a result of her accident and the realisation that all her family who care for her are now in Australia. In particular, her son Adnan Alawie, who has recently migrated to Australia and sets out the relationship between himself and his mother. Given this extreme dependency the family requests that the '8503 Condition' be removed from her visa and she be allowed to live her remaining days in Australia with her family.

I am instructed that the family are prepared to make any financial arrangements and give any guarantees which you consider necessary." 11 Sent together with the application was a letter from the applicant's youngest son dated 14 December 2000 in the following terms: "I Adnan Alawie of 2/70 Glenfarne Street Bexley wish to give reason for my mother's stay in Australia. My mother's name is Kadijah Alawie. She is the mother [of] 11 children including myself all of whom have left Lebanon to [pursue] their futures in other countries. I recently came to Australia to live, which meant my mother was on her own in Lebanon. She is an old woman who cannot take care of her self properly. We are very attached to each other as I am the youngest of the lot and have spent the most time with her. We both found it extremely difficult to live apart especially her as she relied on me for so much. Not too long ago she came to Australia to visit and was reunited with not only me but also the rest of her children and their families, some of whom she had never seen. She has brought the whole family together and we would all like her to stay with us. I especially need her with me as I am afraid for her health and safety in Lebanon. In Lebanon she lives in an apartment and therefore cannot do day to day things such as grocery shopping as the stairs tire her so. Her children are successful citizens of Australia and she will require no financial help from the government or any other community organisation. Please understand the urgency of this matter and consider her case thoroughly." 12 No other letter from any of the applicant's children was enclosed but no less than 18 letters from her grandchildren were enclosed. They did not go to any issue, one might reasonably have thought, that the solicitor's letter raised. It is difficult to understand, having regard to the terms of the solicitor's letter, why any of these were included. To give their flavour I will refer to two of them. A letter of 22 May 2000 said: "Hi, my name is Kassim Alawie. I am 10 years old. I am in year 4. I go to Kogarah Public School. I live in NSW Sydney. I'm writing this letter to tell you to keep my grandmother in Australia with me because she has no friends in Lebanon and all her kids and relatives are in Australia. I wish she can stay here with me in Australia because she is my only grandmother and I like her very much. PS: I think Australia is the best place to keep her because it is a very beautiful place." Another letter dated 21 May 2000 advised: "My name is Kadijah Alawie and I live at 70 Glenfarne Street Bexley. I first met my grandmother Khadija Alawie one month before she arrived in Australia. Although I lived with her for a month in Lebanon, I haven't truly gotten to know her till she came to Australia and she was surrounded by her eight children compared to the two in Lebanon. Because I saw my grandmother before she arrived in Australia, I can honestly say that she looks much more relaxed and comfortable, probably because she isn't living with the stress and strains which accompany a war torn country like Lebanon. Here in Australia, she has many children and grandchildren who can offer her all kinds of support which is important to all older people. From her grandchildren she will receive, above all, emotional support. From her eight children residing in Australia she will receive, above all, financial support which she doesn't have in Lebanon due to social circumstances. In Australia Kadijah has 43 grandchildren all of which love her sincerely and many of which have never met her before and need more time to get to know their grandmother. In Lebanon, Khadija has only four grandchildren, all of which are above the age of twenty. It is very important for me to have my grandmother around me as my other grandmother passed away three years ago and her presence has been missed by myself and my other four brothers and sisters." It may be noted that both letters were written less than a month after the applicant arrived in Australia. 13 The respondent's delegate replied to the applicant's solicitor six weeks later by a letter that said, amongst other things: "I have now reconsidered the request [meaning the original request] and also taken into consideration the matters that were raised in your letter of 8 January 2001. ... I considered the matters raised, but have decided not to agree to Ms. Mohamad's request. … I have enclosed a copy of the decision record for your information."

The "decision record" was as follows: "The request to waive the No Further Stay Condition was originally submitted on 24 July 2000. This request was refused on 31 August 2000 as Ms Mohamad had failed to attend a medical examination with Health Services Australia (HSA). As such we were unable to determine whether or not she was fit to travel. The request to waive was based on this claim. Following our refusal she applied to the Federal Court for review. Subsequently the Department withdrew from the case and agreed to have the case reconsidered by a different delegate. It has since been determined that Ms Mohamad did in fact attend the medical examination with HSA. On 9 January 2001 Ms Mohamad's agent presented further information to be considered in relation to the waiver request. Ms Mohamad is now claiming that she has become totally dependent upon her family. This dependency has occurred due to her incapacity as a result of her accident and the realisation that all her family who care for her are now in Australia. The agent states that her son Adnan Alawie recently migrated to Australia. The agent's letter also states, 'Given her extreme dependency the family requests that the "8503 Condition" be removed from her visa and she be allowed to live her remaining days in Australia with her family.' Preamble Section 46(1)(e)(ii) of [the] Act provides that a visa application made in Australia is valid if the applicant has, since last entering Australia, held a visa subject to condition 8503, but the Minister, or Delegate has waived the condition under S41(2A). Regulation 2.05(4) prescribes the circumstances in which condition 8503 may be waived, namely: · Compelling and compassionate circumstances have developed since the visa that had the condition imposed was granted over which the person had no control; and · That resulted in a major change to the person's circumstances; and · If the Department has previously refused to waive the condition, the decision maker considering the current request is satisfied that the circumstances now presented are different from those considered previously; and If the visa holder asks that the condition be waived, the request must be in writing. Assessment The medical report from HSA clearly states that Ms Mohamad does not suffer from a condition that would prevent her from travelling. The agent states that Ms Mohamad's son recently migrated. Departmental records indicate that Mr Alaweih lodged his application for migration in March 1999 and that he arrived in Australia on 11/8/99 as the holder of a provisional sub class 309 visa. At the time Ms Mohamad's visa was granted her son was already in Australia and had been for approximately eight months. As such the compelling and compassionate circumstances have not developed since her visa was granted. Decision Based on the findings set out above and my assessment of their merits I have decided not to waive condition 8503 as Ms Mohamad does not meet the criteria set out in Regulation 2.05(4)."

Applicant's case in this Court 14 The applicant seeks judicial review in this Court pursuant to s 476 of the Act. The substance of her case submitted to the Court is two fold. The first aspect is that the respondent's delegate allegedly misconceived an important part of the applicant's case. It was submitted that it could be spelled out from the solicitor's letter that the applicant, against a background of less than perfect health, had since arriving in Australia developed an increased level of emotional, and it is to be inferred, material dependency upon her family; however on a fair reading of the delegate's communications to the applicant's solicitor, the delegate had not appreciated this and had not dealt with that aspect of the applicant's claim. 15 The second aspect is that the applicant's solicitor was asserting her dependency upon her family and, although this included, "in particular", her youngest son who had indeed recently, though not after his mother, migrated to Australia, it was not limited to him alone. She was claiming dependency upon "all her family who care for her", in Australia. Such indeed, it was argued, was the whole point of the close and joyful relationships between grandmother and grandchildren attested to by the otherwise inexplicably enclosed testimonials to their closeness. 16 The respondent offers two answers. The first is that the delegate said that he had taken into consideration the matters raised in the solicitor's letter and had reminded himself of the circumstances in which the subject condition might be waived, but had decided not to do so. Further, one could understand that which appears in the decision record above the heading "Assessment" as being "the findings" to which the delegate referred under the hearing "Decision" and what appeared under the heading "Assessment" referred to his "assessment of their merits" to which he likewise referred in his closing paragraph. Thus, it is clear that the delegate did take into account all matters and no reviewable legal error can be imputed to him. 17 Alternatively, it was submitted that it would take a determined and energetic exercise of the power of inference to comprehend from the applicant's solicitor's letter and the accompanying protestations of love by family members, that anything like the supposed dependency now adumbrated, was sought to be relied on.

(i) The delegate did not understand the claim as now adumbrated 18 These things are matters to some extent of impression. The delegate is entitled to a reasonably beneficial comprehension of his letter and his decision record. It is my impression that in truth the delegate did not understand that a claim of dependency, as now adumbrated, as having developed since the applicant arrived in Australia was in fact being made. Judging by the quality of submissions from migration agents and less frequently, though depressingly often, from some solicitors, that one sees in this Court, it is likely that any delegate of the Minister considering a matter like this would have read and seen a great deal of material a long way off any legal point. In my opinion, the delegate probably understood the letters from the grandchildren as an impertinent effort to tug at his heartstrings. 19 The solicitor's letter, taken with the earlier material submitted to the respondent's Department asserted a case that the applicant had, in Australia, developed an increased level of incapacity as a result of an accident and that she had come to "the realisation" here that there would be no member of her family to care for her back in Lebanon. It is these matters which were put by the applicant's solicitor as the mode and cause by which the supposed total dependency upon the family had occurred.

(ii) The applicant's probable real case not considered 20 The earlier material included a fragment of the applicant's medical history given by one of her daughters-in-law, on 2 August 2000 in the applicant's form for "Medical examination for an Australian visa". It stated that the applicant had had a "broken left wrist [one and a half] years [ago]" and "injury on both legs and shoulders 1 to 2 months ago", and that the applicant was "taking 2 tablets a day for pain plus panamax some times". Finally, in answer to an inquiry whether the applicant had any physical or mental disabilities which might affect her ability to earn a living or to take full care of herself, her daughter-in-law wrote "[difficulty] walking since falls" (emphasis added). 21 The examining official medical adviser, Dr Ryerson, had observed, among other things, that the applicant had "arthritis in both her knees, especially the left that made walking and climbing slow" and she had "been prescribed medication for the pain". The doctor observed additionally that at the medical examination the applicant appeared to have limited mobility, was bow-legged and had reduced vision. 22 It seems to me likely, from this glimmer of material, that the way in which the applicant and her family desired her case to be considered was that, being elderly and somewhat frail to begin with, her physical condition had deteriorated whilst here; she was not responsible for this, and this amounted to a major change in her circumstances of a compelling and compassionate kind. However, no such case was at any time properly communicated to the respondent Minister's delegate. 23 Under reg 2.05(4)(b) the Minister may again consider waiver of the condition that concerns the applicant and her family, notwithstanding the refusal of waiver by the delegate with which I am concerned, if the Minister is satisfied that the circumstances, that is, the compelling and compassionate circumstances of the applicant are substantially different from those considered previously. If indeed, as appears likely to me, the applicant would wish to have a case such as I have referred to considered by the Minister, it would follow from my analysis of the matter that the applicant is asserting circumstances substantially different from those considered previously.

(iii) The delegate did not err 24 However, the delegate was, in my opinion, well entitled to think that all he was being asked to consider was:

· the limited unfitness and incapacity disclosed in a particular context and which, in view of the medical evidence that the delegate obviously preferred, indicated that the applicant did not suffer from a condition that would prevent her from travelling; and · the realisation, while the applicant was in Australia, as to who would care for her, and that this realisation was related to the recent arrival, in Australia, of her son, Adnan. The delegate dealt with both these matters. 25 It is a matter of degree whether the material put before an administrative decision-maker, raises alternative cases or considerations that demand attention by the decision-maker. This decision-maker was concerned with a visa application for a person wishing to enter and/or remain in Australia. As the cases that come before this Court show, a great many of such cases do indeed, in the language of the relevant regulation here, involve actual or claimed "compelling and compassionate circumstances" and it may possibly be, although it is not for me to say, that a case of the kind I have understood the applicant as really wanting to raise, would amount to such a case. It is not surprising that a delegate concerned with cases of the kinds mentioned would fail to realise that an applicant represented by a solicitor was wanting to have considered, as a compelling and compassionate circumstance, merely that she had been reunited with some of her grandchildren, had met others of them for the first time, had greatly enjoyed their company as they had enjoyed hers, and did not wish to be parted from them. In this case, I am firmly of the view that the alternative case which is now outlined by counsel for the applicant, was not fairly raised by the material put before the delegate and for this, either the applicant and/or her family, or the applicant's solicitor, or both, are at fault, not the delegate. 26 It follows that questions of whether any failure to refer to this alternative case were of a jurisdictional nature such as to be caught by ss 476(1)(b), (c), or (e), (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1) or merely, as counsel for the respondent Minister submitted, fell within 476(1)(d) and 476(3), need not be resolved.

Disposition 27 The application should be dismissed. 28 The respondent Minister's costs should be paid and I will make an order for payment of his costs. The issue remains however whether the applicant or her solicitor should bear the costs. On any view, at least on the material presently before me, the letter sent by the solicitor appears incompetent, if it was the applicant's wish to have a case such as her counsel has adumbrated dealt with by the delegate. I have held that the letter signally failed to alert an ordinarily careful delegate to that fact. 29 Accordingly, costs will be reserved and I will hear the applicant and her solicitor as to costs on 8 August 2001 at 9:30am. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.