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[2003] FCA 1010
plaintiff. The delegate's decision of 24 July 2002 refusing to waive condition 8503 was quashed; matter remitted to the Minister for reconsideration by a different delegate; Minister prohibited from removing...
2 cited instruments linked from this judgment.
The Federal Court quashed a delegate's refusal to waive an 8503 visa condition because the delegate (a) refused a reasonable short adjournment requested so the applicant could provide a promised psychiatric report and (b) discounted and effectively ignored a maternal-and-child-health nurse's expert assessment of severe post-natal depression when deciding the second waiver request was not substantially different from the first. The matter was sent back for reconsideration by a different delegate and the applicant was protected from removal pending that reconsideration.
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Prisca Moldrich, an Indonesian national, was granted a short-stay visitor visa (subclass 676) on 8 February 2002 subject to condition 8503, which prevented onshore application for a substantive visa (see [2]-[3], [27]). She arrived in Australia on 15 March 2002 and gave birth on 27 April 2002 (see [5]-[6]). With her visa due to expire, she sought a waiver of condition 8503 on 14 May 2002 (first request) on grounds of recuperation and to complete her child's immunisation schedule (see [7]-[8]). That request was refused by a delegate on 28 June 2002 because, inter alia, the delegate found no compelling or compassionate circumstances since the visa grant (see [9]-[11]).
After that refusal, new material was obtained and lodged by Moldrich's solicitors on 18 July 2002 (second request): reports from a Maternal & Child Health Nurse, a Child Protection Worker, a medical practitioner, and a parish priest, together with a handwritten application and a solicitor's letter. The nurse's report (15 July 2002) assessed the applicant as significantly depressed, noting an Edinburgh Post-natal Depression Scale score of 26 (the highest the nurse had seen) and opined that removal of mother and child could have serious effects (see [12]-[15]). The solicitors expressly asked the delegate to delay determination so a psychiatric/psychological report could be obtained and provided because the diagnosis was made only on 18 July and further medical evidence was being sought (see [14]).
Despite that request, the delegate proceeded to consider and refused the second request. The delegate expressly said Ms Rogers' (the nurse's) opinion could not be considered without evidence from a qualified medical professional and concluded the circumstances were not substantially different from those previously considered; the delegate also observed that the 8503 condition did not apply to the child and that choices about travel were for the parents (see [15]-[18]). Moldrich sought judicial review in the High Court; Hayne J remitted the matter to the Federal Court where Lander J heard it and, on 17 September 2003, quashed the delegate's decision, remitted it for reconsideration by a different delegate, and prohibited removal until reconsideration (see [20]-[23], [44]).
Two related procedural fairness errors were identified by Lander J as fatal to the delegate's decision.
First, the solicitors for the applicant explicitly requested a short delay to provide a psychiatric/psychological report they described as critical, given that the nurse's diagnosis had only just been made. The delegate declined to grant that short delay and proceeded to decide the matter on the material then before him (see [14], [35]-[38]). Lander J held that, on the facts, such a refusal to allow a reasonable short delay to produce material central to the applicant's case amounted to a denial of procedural fairness. The Court emphasised that the delegate later relied on the absence of the medical evidence as a reason for refusal, thereby showing the evidence was material; to preclude its provision was therefore unfair (see [36]-[38]).
Second, the delegate discounted or refused to "consider" the nurse's expert opinion because it lacked corroboration by a "qualified medical professional" (see [16]). Lander J held that the nurse's evidence was the best evidence before the delegate on post-natal depression and that the delegate was not entitled to ignore that evidence when assessing whether the second request raised circumstances substantially different from the first. The first request had not relied on post-natal depression; the presence of that condition therefore could have constituted a materially different circumstance. Ignoring the nurse's report and concluding the circumstances were not substantially different was held to be a further denial of procedural fairness (see [39]-[43]).
Taken together, the denial of the opportunity to supply critical corroborative medical evidence and the delegate's refusal to treat the nurse's evidence as relevant meant the applicant was not afforded a fair opportunity to present her case. Lander J therefore quashed the decision and remitted for reconsideration by a different delegate (see [44]).
Before this decision, the statutory framework governing waiver of an 8503 condition was set out by statute and regulation. Section 41(2)(a) allows visas to be granted subject to post-entry conditions, and s 41(2A) empowers the Minister to waive such conditions in prescribed circumstances (see [26]). Subregulation 2.05(4) sets out the prescribed circumstances: compelling and compassionate circumstances developed since the visa grant, outside the person's control and resulting in major change; if previously refused, the new circumstances must be substantially different; and requests must be in writing (see [28]).
Lander J applied well-settled principles of procedural fairness: decision-makers must afford persons affected a reasonable opportunity to present material relevant to the decision. The case underscores two applications of that principle in the migration waiver context: (1) where an applicant requests a short deferment to provide critical material, a reasonable short delay is required; (2) a delegate must consider relevant expert evidence before them and cannot disregard it when it is directly material to the statutory test (see [35]-[43]). The decision therefore reinforces procedural safeguards in the assessment of waiver applications under the Migration Act and Regulations. The judgment did not purport to change statutory tests in s 41(2A) or subreg 2.05(4), it applied procedural fairness principles to the conduct of the delegate.
Paragraph 36: "Notwithstanding that request... the Minister's delegate proceeded to consider the application. That in my opinion was a denial of procedural fairness... The applicant was entitled... to a short delay..." Plain English: The applicant asked for a short postponement to get a medical report; the delegate refused and decided anyway. That refusal to allow a short, reasonable postponement was unfair.
Paragraph 37: "The Minister's delegate relied upon the absence of evidence... the Minister's delegate relied upon the absence of evidence which was the subject matter of the application for the delay..." Plain English: The delegate's written reasons show he refused because a medical report was not supplied. But he had refused to allow time to supply that same report, so he relied on a lack of evidence that he had prevented the applicant from producing.
Paragraph 40: "The Minister's delegate was not entitled to ignore that evidence and arrive at the conclusion that the circumstances ... were not substantially different..." Plain English: The nurse's report was relevant to whether the second application presented genuinely new circumstances; the delegate could not lawfully ignore that report when making his decision.
Paragraph 42: "It followed that the Minister's delegate could not ignore the nurse's evidence in order to find that the circumstances in the second request were not substantially different..." Plain English: Because the first request did not rely on depression, the nurse's evidence could be decisive on whether the second request was substantially different; disregarding that evidence made the decision unfair.
Paragraph 44: "In my opinion the decision ... should be quashed." Plain English: The Court set aside the delegate's decision for those procedural fairness failures.
This judgment will be engaged where:
In such fact patterns Moldrich establishes that failing to allow a reasonable short delay to receive critical evidence, or ignoring relevant expert evidence, is capable of amounting to denial of procedural fairness requiring quashing and reconsideration.
This deep dive is confined to the text of Moldrich itself. The judgment records only the procedural history up to Lander J's decision (including a remittal by Hayne J from the High Court) and does not include subsequent appellate consideration or citation history in later decisions (see [20]-[21]). The judgment therefore does not itself report how later courts have treated it. Practitioners wishing to know subsequent treatment should consult case citators and databases for citations of Moldrich [2003] FCA 1010.
The decision resolves the specific procedural defects in this case but leaves open several practical and legal questions that are likely to arise in subsequent litigation:
How long is a "reasonable short delay"? Lander J accepted a short time to obtain a psychiatric/psychological report was reasonable here (see [14], [36]). The judgment does not specify a duration. Future cases will need to develop what length of adjournment is reasonable in different contexts (availability of practitioners, urgency of removal, visa expiry considerations).
What is the scope of evidence that a decision-maker may require before treating expert evidence as admissible or probative? The delegate here required a medical report to corroborate a nurse's opinion (see [16]). The Court rejected ignoring the nurse's evidence, but did not set a definitive rule on when corroboration is required. Cases will need to delineate the weight to be given to non-medical but specialised assessments (nurses, social workers) in migration decisions.
How should decision-makers balance procedural fairness requests against statutory or policy imperatives (for example, immigration detention, removal timetables, or resource constraints)? Lander J held that on these facts the request for a short delay should have been granted; he did not articulate a comprehensive balancing test applicable in all migration contexts (see [36]-[38]).
What constitutes a materially "substantially different" circumstance under subreg 2.05(4)(b) when prior applications have been made? Moldrich indicates that a newly diagnosed significant medical condition not relied on in the first application can be such a difference (see [41]-[43]), but finer line-drawing will be needed in cases where the new evidence is less stark.
Consequences for removals and interim relief: the Court prohibited removal until reconsideration. The judgment does not address the long-run consequences of delays caused by judicial remittals for immigration administration and refugee or protection claims.
Conclusion Moldrich v Minister (Lander J) is a clear articulation that procedural fairness in the migration-waiver context requires permitting short, reasonable opportunities to supply evidence central to the claim and that decision-makers must properly engage with expert material before them rather than discounting or ignoring it. The decision is directly applicable where a second waiver application introduces new health or welfare evidence and a solicitor's request for time to obtain corroboration is refused, or where a delegate devalues non-physician expert evidence that directly bears on whether circumstances are substantially different.
REASONS FOR JUDGMENT 1 The applicant is an Indonesian national. She married her husband, an Australian citizen, in Indonesia on 26 July 2001. 2 On 8 February 2002 the applicant was granted a short stay visa to enter and remain in Australia for a period of two months from the date of her arrival. 3 An '8503' condition was imposed on her visa, the effect of which was to prevent her from applying for any other visa (other than a protection visa) whilst in Australia. 4 When the applicant sought and was granted the short stay visa the applicant was pregnant and due to give birth within about two months after the grant of her visa. The Embassy official who granted the visa was not aware of the pregnancy. 5 The applicant departed Indonesia on 14 March 2002 and arrived in Australia on 15 March 2002. 6 On 27 April 2002 she gave birth to a child in Australia. 7 On 14 May 2002, with her visa due to expire on 15 May 2002, the applicant made a written request for waiver of the '8503' condition (the first request). 8 The grounds upon which the waiver was sought were that the applicant wished to remain in Australia in order to recuperate from her confinement and to assist her daughter's 'medical and immunisation' program. The applicant, in support of her application, provided a medical certificate setting out the baby's immunisation program over a period of 12 months culminating on 27 April 2003. 9 The applicant was asked to undergo a medical examination. On 19 June 2002 Dr Paulson of Health Services Australia Ltd provided a report to the Minister's delegate. Dr Paulson stated that the applicant sustained some tears, whilst giving birth to her child, which required suturing. Dr Paulson's examination showed the perineal wound to be well healed. Dr Paulson was of the opinion that the applicant required some further medical/gynaecological review but of a routine and fairly limited nature which should be available in Indonesia. Dr Paulson also advised that the immunisation program was also quite routine and could be completed in Indonesia. 10 On 28 June 2002 the Minister's delegate refused to waive the '8503' condition on the ground that there were no compelling or compassionate circumstances which had developed since the applicant was granted the visa which was subject to the '8503' condition. The delegate stated: 'She would have been well aware that she was seven months pregnant and that a visa granted for two months would take her beyond her due delivery date in Australia. The circumstances described from the overseas post state that she also misled the department in the fact that she was pregnant. The opinion of the Commonwealth Medical Officer was that the applicant was not fit to travel. He noted that whilst the applicant still required further review, the type of medical treatment is quite routine and available in the applicant's country of origin.' 11 For those reasons, the delegate was not satisfied that there were compelling and compassionate circumstances. 12 On 18 July 2002, three weeks after the delegate's refusal, the applicant made a second application through the agency of her solicitors. In a letter dated 18 July they submitted that there were compelling and compassionate circumstances which warranted the waiver of the '8503' condition. Those circumstances were: 'a. a change in her circumstances since the first 8503 was refused in that the Maternal & Child Health Nurse of the City of Kingston who has monitored both the visa holder and the child has made a report on 15th July 2002 that it would be detrimental to child's health and welfare for her to be removed from the mother at this early stage of her infancy; b. a change in her circumstances since the first 8503 was refused in that a Child Protection Worker has provided a report on 14th July 2002 that the child could have lasting emotional and psychological effects if removed from her mother or has herself to leave Australia; c. a change in her circumstances since the first 8503 was refused in that the Maternal & Child Health Nurse has assessed the visa holder as being significantly depressed and requiring psychological and/or psychiatric help, having had an assessment score of 26, the highest she had ever seen in a client. It would be extremely dangerous to leave an infant child in the sole care of the mother in this condition; d. a change in her circumstances since the first 8503 was refused in that the Medical Officer of the visa holder has reported on 12th July 2002 that permanent and lasting psychological damage can result to both mother and child to be removed from each other which could result in scarring for life; e. a change in her circumstances since the first 8503 was refused in that it has become evident that the infant child will be at high risk to contract any communicable diseases in Indonesia if forced to live in Indonesia without having undergone the proper immunization programs and Tuberculosis immunization; f. a change in her circumstances since the first 8503 was refused in that anyone other than an Indonesian national will have to leave the country every two months pursuant to their visa regulations which will not be conducive to the health or well being of the child; g. a change in her circumstances since the first 8503 was refused in that the Maternal & Child Health Nurse of the City of Kingston is of the opinion that if the baby is forced to wean rapidly, in the event that the mother has to leave Australia immediately, it would have disastrous and tragic affects on the health of the child as well as the mother; h. the child's father is an Australian citizen and the child has Australian birth rights giving the child the right not to be removed from either parent pending resolution of the status of the mother; i. the child's medical and other needs and interests are paramount and should not be eroded by any other consideration; j. these circumstances are outside the control of the visa holder.' 13 The solicitors provided reports, as indicated in the circumstances to which I have referred, of the Maternal & Child Health Nurse dated 15 July 2002, the Child Protection Worker dated 14 July 2002, the Medical Practitioner dated 12 July 2002 and the Parish Priest dated 16 July 2002. The applicant also provided a handwritten application in support. A further handwritten letter by the solicitors drew attention to the circumstance identified in par (c) with references made to the nurse's report of 15 July in which the nurse, Ms Rogers, described the applicant as significantly depressed 'scoring 26 (the highest I have ever seen in a client) on the Edinburgh Post-natal Depression Scale and thus in need of psychological or psychiatric help'. 14 The solicitors wrote, after referring to that matter: 'We are of the view that this change of circumstance is critical to our client (sic) application and wish to submit a psychiatric/psychologist report'. As the diagnosis was made only on the 18th of July we have not had the opportunity to obtain such a report. We request that you do not determine our client (sic) application for waiver until we have been able to provide you with this report. We expect to be able to provide this medical material as soon as possible.' 15 Notwithstanding that request the Minister's delegate proceeded to consider the application. The delegate noted that there had been a previous decision refusing to waive the '8503' condition and stated that 'the new claims provided are similar to the first claims put forward by the applicant. The only difference is that the claims are more directed to the child and mother being separated.' 16 Next the delegate considered whether there were compelling and compassionate circumstances which had developed since the decision to refuse to waive the condition and answered that question in the negative. The delegate after discussing the reports which were provided with the application stated, inter alia: 'I am unable to consider the opinion expressed by Ms Rogers (who is a professional nurse) in relation to the depression suffered by the applicant without the evidence of a medical report from a qualified medical professional. It should be noted that the medical report from Dr Abeysinghe did not mention any case of depression in the report dated 12 July 2002.' 17 A little later the delegate said: 'The decision not to waive the condition 8503 on Ms Moldrich's visa, does not apply to the child. The decision to whether travel (sic) as a family unit or to leave the child in Australia while the mother returns to her country of origin is a matter for Mr and Mrs Moldrich to decide. The family was fully aware of their circumstances when Mrs Moldrich applied for the visitor visa.' 18 Lastly, the delegate concluded that the circumstances stated in the second claim were not significantly different to the first request which had been refused. 19 The Minister's delegate's decision is not reviewable by any tribunal. 20 On 31 July 2002 the applicant commenced proceedings in the High Court of Australia seeking the issue of the Constitutional writs in respect of the decision of the Minister's delegate made on 24 July 2002. On 7 February 2003 Hayne J remitted the application to this Court for hearing. 21 On 10 June 2003 Selway J directed the applicant by 17 July 2003 to file an amended application and any submissions supporting that application. 22 On 1 August 2003 I extended the time for the applicant to comply with Selway J's order until 1 August 2003, the date of the filing of the amended application. 23 The grounds of the application are: '5.1 That a breach of the rules of natural justice occurred in connection with the making of the Decision. 5.2 An error of law occurred in connection with the making of the Decision. 5.3 That the Decision involved the making of a jurisdictional error. 5.4 That the Decision was otherwise contrary to law.' 24 The application does not descend into any detail. However, the application does refer to the delegate's refusal to consider the opinion expressed by Ms Rogers. 25 I think the application is founded upon that matter, that is, the delegate's refusal to have regard to Ms Rogers' opinion. 26 Section 41 of the Migration Act 1958 (the Act) allows for the grant of visas subject to certain specified conditions, one of which may be that the holder of a visa, after entering Australia, will not be entitled to the grant of a substantive visa (other than a protection visa) while the holder of that visa remains in Australia: s 41(2)(a). Section 41(2A) of the Act empowers the Minister, in prescribed circumstances, to waive any such condition which has been imposed. 27 The visa which was granted to the applicant was a visa subclass 676 (short stay visa) on which the Migration Regulations 1994 (the Regulations) permit the imposition of condition '8503' being: '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.' 28 The prescribed conditions which allow the Minister to waive an 8503 condition are provided for in subreg 2.05(4) of the regulations. Subregulation 2.05(4) provides: '(4) For subsection 41(2A) of the Act the circumstances in which the Minister may waive a condition of a kind described in par 41(2)(a) of the Act are that: (a) since the person was granted a 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 par (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.' 29 Both requests were in writing. In a consideration of the first request the delegate was obliged to consider whether compelling and compassionate circumstances had developed since the grant of the visa over which the person had no control and that resulted in a major change to the person's circumstances. 30 In a consideration of the second request, the Minister's delegate was required to consider both those matters again and as well, whether the circumstances of the second request were substantially different from the first request. 31 There is no complaint about the manner in which the Minister's delegate proceeded in relation to the first request or about the decision at which the delegate arrived. 32 This application complains of the failure by the Minister's delegate, in considering the second request, to accord the applicant procedural fairness. 33 I have already identified the applicant's complaint. 34 In my opinion, although the complaint was not articulated until raised by me with the applicant's counsel, there is a more fundamental complaint that would give rise to the relief sought other than that relied upon in the application and in the written submissions. 35 On the day on which the application was made to the Minister, the applicant's solicitor sought a delay in the Minister's delegate's consideration of the application until such time as medical evidence could be obtained and provided to the delegate in support of the applicant's claim that she was suffering from depression. As the solicitor's application shows the applicant's solicitors believed such evidence was critical to their client's application. 36 Notwithstanding that request, which on the evidence that otherwise accompanied the application was not unreasonable, and without advising the applicant, the Minister's delegate proceeded to consider the application. That in my opinion was a denial of procedural fairness to the applicant. The applicant was entitled, in my opinion, to a short delay (which was all that was sought) to furnish a medical report in support of the application. 37 That it was important to provide that information was made abundantly clear by the Minister's delegate's decision to refuse the application because that evidence was not supplied. In other words, the Minister's delegate relied upon the absence of evidence which was the subject matter of the application for the delay in considering and refusing the application before the delegate. 38 In my opinion the applicant was entitled to be given a short time in which to furnish that evidence which the Minister's delegate's decision showed was critical to the applicant's case. 39 I think there was also a denial of procedural fairness to the applicant upon the ground stated in the application to this Court. The best evidence before the delegate was the evidence of a nurse who clearly had expertise in assessing post-natal depression. Her opinion shows that. 40 The Minister's delegate was not entitled to ignore that evidence and arrive at the conclusion that the circumstances forming the basis of the second request were not substantially different from those considered previously. 41 The applicant's first request did not rely upon the applicant's medical condition of depression. That condition was not considered on the first request in a consideration of whether or not there were compelling and compassionate circumstances which had developed since the applicant was granted a visa. 42 It followed that the Minister's delegate could not ignore the nurse's evidence in order to find that the circumstances in the second request were not substantially different from the first request. 43 Again to do so in my opinion, for the reasons advanced by the applicant, amounted to a denial of procedural fairness.
44 In my opinion the decision made by the Minister's delegate on 24 July 2002 should be quashed. There should be an order remitting the matter to the Minister for further consideration by some delegate other than the delegate who considered the second request. There should be an ancillary order prohibiting the Minister from removing or deporting the applicant from Australia until such time as the second request has been considered in accordance with these reasons and the order of this Court. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
Moldrich
Minister for Immigration & Multicultural & Indigenous Affairs
The delegate's decision of 24 July 2002 refusing to waive condition 8503 was quashed; matter remitted to the Minister for reconsideration by a different delegate; Minister prohibited from removing or deporting the applicant until reconsideration in accordance with the Court's reasons; respondent to pay 50% of applicant's costs (see Orders and [44]).