Salazar v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 In this matter the applicant seeks by application dated 5 January 2001 an order for review by the Court of a decision of a delegate of the Minister, dated 29 December 2000, to refuse the applicant's request for a waiver by the Minister of a condition applying to a visitor visa previously issued to her. The circumstances giving rise to the application are, broadly, as follows. 2 The applicant entered Australia on 7 October 2000 as the holder of a class UL Sponsored Visitor Visa (subclass 676) allowing single entry travel to Australia and a maximum stay of three months. The visa was issued at the relevant office in Manila in the Philippines on 8 September 2000. The visa was, upon issue, endorsed with a condition (condition 8503). In essence, the condition provided that the holder of the visa to which it attached would not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, whilst the holder of the visa remained in Australia. In other words, once the applicant came to Australia she could not, except for what I might describe as persecution reasons, which are not relevant here, apply for another visa within Australia. She had to return to Manila or the Philippines and make further applications for other visas if she wished to spend further time in this country. 3 On 24 November 2000 the applicant's solicitors wrote to the Department requesting a waiver of the condition in order to be entitled to make an application for a further temporary visa so as to permit her to remain in Australia. She wished to do so in order to look after her 33-year-old son, who, it was said, and there is no dispute about this, was suffering depression following various matters, including the breakdown of his marriage. I should add that there is no need to go into the details of the illness which the applicant's son was suffering or the causes of it, and I do not do so, save and except to the extent that is necessary to dispose of this case. 4 It is necessary to situate the grounds of review advanced in the application in the context of the relevant statutory and regulatory scheme that gives rise to visa condition 8503 and that provides for requests for waiver of such conditions. It is also necessary to describe the request and to recount the circumstances of its refusal. 5 Subsections 41(1) and 41(2) of the Migration Act (the Act) provide as follows: 41(1) The regulations may provide that visas or visas of a specified class are subject to specified conditions 41(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) while he or she remains in Australia; 6 Conditions such as are referred to in para 41(2)(a) are prescribed in the Migration Regulations 1984. Condition 8503 in Schedule 8 to the regulations provides: 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. 7 Subdivision AA of Division 3 of Part 2 of the Act deals with applications for visas. The effect of s 46, which deals with the validity of these applications, is that, relevantly, an application for a visa by a person already in the migration zone is valid if, and only if, the applicant has not since last entering Australia held a visa subject to a condition of the kind prescribed in para 41(2)(a), or if the applicant has since entering Australia held a visa subject to such a condition, then the Minister has waived the condition under subs 41(2A) - see paras 46(1)(e)(i) and (ii). 8 Subsection 41(2A) provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in para 41(2)(a) to which a particular visa is subject. The prescribed circumstances for the purposes of subs 41(2A) are contained in regulation 2.05(4), which relevantly is as follows: 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 … c) If the person asks the Minister to waive the condition, the request is in writing. 9 By letter of 24 November 2000 the applicant's solicitors requested a waiver of condition 8503 in order that the applicant be able to make a valid application for a new visitor visa. Thus the request was in writing for the purposes of regulation 2.05(4)(c). The letter then went on to deal with what was required by regulation 2.05(4)(a) as follows: The compelling and compassionate circumstances that have developed since our client was granted a visa [are]: i) that she has become aware that condition 8503 does not allow her to remain here as a visitor. This lack of awareness is through no fault of her own and if the visa officer had fully advised her of the situation, then she would have advised of the possibility for a further stay; ii) her son has a severe medical condition (ie depression) that benefits from the applicant being granted a further visa. 10 I note at this point that the medical condition of the son and his difficult personal circumstances arising from, in particular, the divorce and, in part, his depression, were existing at the time of the issue of the visa. Indeed, they were the reason for the applicant, quite naturally and properly as his mother, wanting to come to be with him to look after him. He apparently has no other relatives in this country. 11 Thus the only circumstance which might at least on the face of the letter, be said to have developed, since the date of the visa, was the applicant's state of knowledge about the attached condition to the visa. The 24 November 2000 request enclosed, amongst other things, a statutory declaration of the applicant in support of her request and a medical report from a physician at the relevant treating hospital. The statutory declaration was dated 23 November and was in the following terms: A. I am the holder of visitor visa sub-class 676 issued at the Australian Visa Office Manila on or about 12 September 2000. The visa was issued with the no further stay condition 8503 and this declaration sets out the circumstances surrounding the issue of that condition which are presented in support for a waiver of the condition. B. [R M] is my son and is an Australian citizen as is evidenced by the certified copy of his passport included with this submission. C. My son has is currently dependent on drugs. He is also suffering from depression. Moreover, his wife of 12 years separated in February this year. His wife and his mother-in-law took out an intervention order against him. He has not been able to establish any contact with any of his 3 children. D. My son needs me in Australia to provide him with emotional support and look after him during this extremely stressful period. He is trying to rebuild his life and is attending counselling to assist him in coping with the depression. He is also trying to initiate contact with is three children. I can assist him during this period and can provide to buffer the difficult relationship between him and his wife. E. He has no other relatives who are Australian citizens or permanent residents in Australia who can assist and desperately needs all the support he can get at this difficult time. F. When my current visa was issued I was never advised that visa condition 8503 imposed on the visa form prevented any visa applications whatsoever. There was always a reasonable possibility that I may want to stay longer than the three months which the visa granted. G. For the above reasons, I request that the Condition 8503 be waived allowing a further visitor visa application to be made. 12 The medical report on the applicant's son's condition, to which the 24 November letter referred, was in handwritten form. It is reproduced in the court book. The name of the medical practitioner making the report is not decipherable. The report was to the effect that the applicant's son had been seeing a medical practitioner since May 2000 and had been carrying on activities which may have contributed to his depression since his separation from his wife early in the year 2000. The report notes that the son was also treated for depression, in the three months prior to the report, by another practitioner. The report was dated in November 2000. 13 The report concludes with remarks that the applicant's son would benefit from the moral and emotional support provided to him by the presence of his mother. I note that the report does not, of itself, indicate any significant deterioration in the son's condition after September 2000 or, more particularly, after 8 September 2000. 14 Paragraph (f) of the statutory declaration above states that the applicant was not advised of the visa condition. At this point I note that page 11 of the court book is a page of the application signed by the applicant in Manila. It states as follows (in identifiably bullet-pointed paragraphs immediately above the box reserved for signature): · I understand that the effect of the 8503 visa condition is that it will not be possible for me to apply to remain in Australia beyond the authorised date on my visa label. I agree to having this condition included on any visa issued to me as a result of this application. · I acknowledge that I understand that if the 8503 visa condition is imposed on my visa, it will be indicated on the visa label by the condition code "8503" and by the short description "No Further Stay". I acknowledge that this means that the 8503 condition has been imposed on my visa, that I am required to depart Australia on or before the date or time period notified on my visa label and that I understand the restriction that Condition 8503 places on me. I will advise my sponsor (if any) regarding the imposition of the condition to ensure that they understand that such a condition is attached to my visa. 15 There is no issue about the applicant's capacity to read and understand English and, more particularly, that capacity in September 2000. By letter of 29 December 2000, a delegate of the Minister wrote to the applicant advising that a decision had been made not to waive the condition. The letter was in the following terms: I refer to your request for the waiver of 8503, no further stay condition on the visitor visa that was granted to you on 8 September 2000 by our office in Manila. With due consideration to all factors relating to your case, the delegate's decision is to not waive the condition. This decision is not merits reviewable. Condition 8503 prevents a visa holder, after entering Australia, from being entitled to be granted a further visa whilst in Australia. The overseas post in Cairo advise that you completed and signed new Form 48R which includes an acknowledgment of condition 8503 when applying for your visa. You current visa allows a stay in Australia until 7 January 2001. You should make every attempt to finalise arrangements to depart Australia before that date. 16 I note at this point that the respondent accepts in its written submissions that the reference to "Cairo" in the letter was an erroneous one and it is stated that the delegate intended to refer to Manila. I will return to this later. However, it appears to me that that patent and obvious error, the applicant having no apparent connection with Egypt, was one which must have been made by oversight. Lest I overlook it later, I should say at this point that I do not regard that error having been made as indicative of any wholesale inattention to the task in hand of the delegate, such that it might be said that it was evidence towards a conclusion of a failure to undertake jurisdictionally the task mandated of the delegate by the Act and regulations. 17 Appearing in the court book is a record of the decision-making process of the delegate dated 28 December 2000. It appears to be an internal Departmental document. It records the finding of a delegate that the requirements of regulation 2.05(4) had not been met, along with a recommendation that the request to waive condition 8503 be rejected. Over two or more pages in that record are set out the Departmental policy guidelines relating to the consideration of requests for waiver of visa conditions. These are set out in some detail. Part E of the record of the decision-making process constitutes a step-by-step assessment made, it would appear, by reference to the procedural requirements of the applicable legislation. It includes the following: Are there compelling and compassionate circumstances which have developed since the person was granted the visa that was subject to their condition? No. Mrs Salazar claims that her son is suffering from depression due to substance abuse and the breakdown of his marriage. Letter from Endeavour Hills Medical Centre (doctor's name indecipherable) states that Ms Salazar's son … has been visiting the clinic since May 2000, following the breakdown of his marriage in February 2000. [The son] advised at one of these consultations that he ceased using substances around the time of his marriage breakdown. Mrs Salazar's visa was granted on 8 September 2000. Mrs Salazar has not advanced any evidence that [the son] was diagnosed with depression since that date. All evidence provided indicates that [the son] has been visiting his doctor since May 2000, which is prior to date of visa grant. Mrs Salazar also claims that she was not aware that condition 8503 did not allow her to seek a further stay in Australia, and that she was not properly advised. The issuing post advise that Mrs Salazar used new Form 48R which provides a detailed explanation abut condition 8503, and signed the declaration acknowledging the restrictive nature of condition 8503 on the back of that form. 18 The question posed is clearly framed by reference to regulation 2.05(4)(a). Given that an affirmative answer was not reached to the above question, the record shows that the delegate considered as not relevant or applicable the questions as to whether the person had any control over these circumstances and whether the circumstances resulted in a major change to the person's circumstances - see regulation 2.05(4)(a)(i) and (ii). 19 The finding is then made that the requirements of regulation 2.05(4) have not, in the view of the delegate, been met. The Departmental recommendation to reject the waiver request is set out. This recommendation is reflected in the letter of 29 December reproduced above, which informed the applicant of the delegate's decision not to waive the condition. 20 The delegate's decision is reviewable in this Court pursuant to para 475(1)(c) of the Act, being a decision relating to a visa - see also Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at para [2]. I will not set out in full the application for review, but in support of the application there have been made written submissions which were filed on 1 May 2001 and signed by the solicitors for the applicant, and oral submissions today were made before me by Mr Reid in elaboration of the claim that errors were made by the delegate. 21 Mr Reid engaged in a frank and open exchange with me about the matters he most clearly wished to put to me. He did not deal with some of the matters raised in the written submissions, but I did not and do not take him to have been in any way abandoning what was put in the written submissions, and thus I deal with the written submissions and later with Mr Reid's oral submissions. 22 The first ground on which the application for review is based is found primarily in the written submissions. It is that procedures required under s 47 and s 54 of the Act to be observed in the making of the decision were not observed, thus leading to an error of law for the purposes of para 476(1)(a). Sections 47 and 54 provide as follows: S 47 Consideration of valid visa application (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. S 54 Minister must have regard to all information in application (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. 23 The written submissions in support of the s 47 ground are as follows: In respect of section 47 the Respondent failed to give consideration to the application as required by the section. When considering a validly made application the Respondent is required to give real, genuine and fair consideration to it. The application, amongst other things, was supported by material in statutory declaration form that outlined those matters said to give rise to compelling and compassionate circumstances. The lack of reasons behind the rejection of the waiver shows a failure to give real, genuine and fair consideration. 24 On the s 54 ground, it is said that the delegate failed to have regard to all of the material contained in or constituting the application. It is said that the delegate denied the importance of the applicant's material and the failure to set out (presumably in the letter informing the applicant of the refusal) the basis of the refusal, shows the failure said to enliven a ground of review by reference to s 54 and para 476(1)(a). In relation to these I have read the respondent's written submissions. I should note at this point that I did not call on Mr Star for the Minister to give me any further assistance in relation to the matter orally this morning. 25 I accept the substance of the respondent's written submissions on this ground. The ground is misconceived. In my view, neither s 47 nor s 54 is applicable to a decision whether or not to waive a visa condition. Those provisions deal with applications for visas and decisions on whether to grant or refuse a visa. The condition presently under review is not a decision that the applicant be issued or not issued with a visa. It is a decision that the conditions attached to the visa not be waived or be waived; see too Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566 at para [17]. In any event, and even taking the criticism at face value, there is no reason to believe that the delegate did not give full consideration to the claims put forward by the applicant. 26 There would not appear to be any requirement in the Act that written reasons for a decision not to waive a visa condition be given, nor that any such reasons set out all the material to which a regard has been had. Having looked at the court book and heard counsel and examined once again the reasons and the letter, it does not appear to me to be able to be said that this delegate failed to turn his mind to the material placed before him by the applicant in terms of a consideration of the decision. 27 The applicant sought to draw attention to the reference (in the letter of 29 December 2000 informing the applicant of the decision) to the overseas post in Cairo, when in fact the visa was issued in Manila. This was drawn attention to, it was said, as a factor further supporting the lack of consideration ground and in addition as illustrating an error of law under para 476(1)(e). As I said earlier, the reference to Cairo is clearly a mistaken one. However, it is equally clear that the delegate intended to refer, in my view, to Manila, as he had done earlier in the same letter. The record of decision-making of 28 December also makes that intention clear. As I said earlier, I do not think that it can be said that the mistaken reference to Cairo supports any ground under para 476(1)(a), nor in my view does it support any conclusion that an error was made for the purposes of para 476(1)(e). At its highest, it is an error involving no more than a step taken at some stage in the decision-making process: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at para [17]. 28 The second ground advanced is that the delegate improperly exercised the discretionary power provided for under subs 41(2A) and regulation 2.05(4) contrary to para 476(1)(d). It is said that, rather than forming a view on her request by reference to regulation 2.05(4), the Minister used, or the delegate used, in making the decision, the fact that the applicant signed an acknowledgment of the effect of the condition when making the visa application. The contention would appear in substance to be one that the delegate did not, in effect, exercise that discretion by applying his mind to regulation 2.05(4) but simply resorted to the applicant having been taken to have acknowledged the condition as a reason then not to waive it. 29 Paragraph 476(1)(d) provides a ground of review of certain decisions where the decision was an improper exercise of the power conferred by the Act and regulations. Subsection 476(3) provides as follows: The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; but not as including a reference to: (d) taking an irrelevant consideration into account in the exercise of a power; or (e) failing to take a relevant consideration into account in the exercise of a power; or (f) an exercise of a discretionary power in bad faith; or (g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c). 30 It is not apparent precisely what manner of impropriety is alleged. In any event, it is not apparent that the delegate relied on the applicant's acknowledgment alone in arriving at the decision not to waive the condition. The internal record of decision-making suggests nothing other than the exercise of the available discretion within and in accordance with the applicable law. 31 The written submissions of the applicant then proceed to deal with what are called grounds 3 and 4. With the greatest of respect to the draftsperson of the written submissions, I had difficulty extracting from them any clear delineation of the principles being raised to attack this decision under grounds provided by s 476. I do not think that I need to deal with those written submissions because Mr Reid in his helpful oral submissions this morning put as best he could and, if I may say so respectfully, as fully as could be put, the nub of what his client wished to put to this Court by way of further submissions in this case, and I take what he put to me this morning as, in effect, the oral exemplification of what was being sought to be dealt with in the written submissions in grounds 3 and 4. Mr Reid focused upon part of a paragraph in the policy document identified by the delegate and plainly before the delegate. That paragraph is paragraph 3.1.2 on page 148 of the court book. I think that paragraph needs to be set out in full to give the context to the words relied on. It is as follows: 3.1.2 Officers should first get relevant details from the visa holder [visa holders seeking a waiver should be asked to put their request (and explain their circumstances) in writing - see paragraph 7.1.1 below] and undertake to investigate further, but warn them that no guarantee as to the outcome can be given. Under no circumstances should an application be accepted or the visa application charge receipted at this stage. Any visa application (except for a protection visa and certain bridging visa applications), even if accompanied by the relevant visa application charge for that visa class, is invalid while the 8503 condition remains. [emphasis added] 32 The essence of what Mr Reid submitted is that the reference to undertaking to investigate further, in the circumstances of this case, required, as a matter of law, the delegate to undertake and complete the task (the jurisdictional task) before him - of turning his mind to the possibility of the deterioration in the condition of the applicant's son, or, put another way, of turning his mind to the need to investigate the applicant's son's condition, in order that the delegate could understand whether there had been a change, for the purposes of regulation 2.05(4). I reject that submission. First, I do not think a policy document, even if the paragraph means what Mr Reid says it means, can create such an obligation of law on the delegate for the purposes, in a jurisdictional sense, of what are relevant matters and relevant considerations to be taken into account or undertaken. One looks to the Act and regulations properly construed in their context - see Minister for Aboriginal Affairs v Peko-Wallsend (1996) 162 CLR 24, Craig v South Australia (1995) 184 CLR 163and Yusuf, supra. At its highest, in some circumstances, it might be possible to say that on the facts as displayed before a delegate, the factual landscape was such that properly to undertake the task in hand required, as a matter of a law so as to deal with the task, some investigation of some matter. For instance, if there were to be a manifestly inadequate written request by someone plainly in need of linguistic or other assistance, and if the application or request, of itself, bespoke the possibility of some matter which, if investigated, could have the application clearly fall within regulation 2.05(4), then it might be the case - and I do not say it would be - that it could be said that the delegate, in failing to deal with that matter, had not properly completed the task given to him or her by the Act and regulations, and, in that sense, failed to take into account a relevant consideration in the jurisdictional sense dealt with by Yusuf and Craig. 33 However, whether or not a factual circumstance might present itself in such a way as to raise that legal question, in another case, does not need to be decided. We are dealing here with the following factual circumstance. The applicant retained solicitors who were, as I look at the court book, registered migration agents as well. Even if they were not, they were plainly entirely conversant with the Act and regulations. Those solicitors can be taken, and no doubt the delegate did take it so, to have had full conferences with the applicant to ensure that they were able to put all relevant matters to the Department which would maximise the possibility of the waiver being granted. 34 What those solicitors put under the relevant section I have identified earlier. There was no matter put by those solicitors that there had been a change in the son's condition after September 2000. I note that no attempt has been made in the evidence before me, and no application has been made to lead evidence before me, to that effect (and I make no criticism of counsel or solicitors in that regard). The delegate also had a doctor's report provided to him and a report from the relevant treating hospital. Those reports did not identify any deterioration in the son's condition after 8 September 2000. The burden of the complaint made, as I would read it, was that the applicant said that she was not told of the condition on the visa and that she did not know of it, and that her son was ill and needed her help. 35 It was that complaint and that request, so framed, to which the delegate turned his attention. He made his inquiries in Manila. He ascertained the existence of a document with the applicant's signature on the page to which I have referred. He is to be taken as having looked, and apparently did look at and examine what was put before him by way of the son's condition, and took the view that there was no circumstance falling within regulation 2.05(4); in particular, that there was no circumstance that had developed in respect of which he was of the view was compelling and compassionate. That conclusion is one which it is possible another person might have disagreed with. It is a conclusion which was open to the delegate. Even if it were an available ground of review, I do not see in any way that the delegate's assessment of the position was in any way unreasonable in the Wednesbury sense, or infected with illogicality or irrationality. Again, I do not say that those matters, even if they were the case, would be grounds of review, but they are nevertheless not present here. 36 May I say, lest it be thought that the decision of the delegate was in some sense hard-hearted, it does not appear that that is the case. It might be said that the decision was hard-hearted if the regulation said that his task was to waive the condition if there were compassionate grounds to do so. That is not what the regulation told him to do. He, was bound, as I in this Court am bound, by the Act and regulations. Regulation 2.05(4) says that he can only waive this condition if, after the person was granted the visa, that is, after 8 September 2000, compelling and compassionate circumstances had developed. He dealt with the claim put before him and was of a view that that condition had not been fulfilled. He did not deal with the matter, though arguably he could have dealt with the matter, on the basis that the applicant's change in appreciation of the true state of affairs of her visa was not, itself, something which could be described as a circumstance which had developed: see Thongpraphai v the Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at para [12]. 37 In an encapsulated form, Mr Reid's submission was as follows: that there was no indication that the delegate thought for one moment about making further inquiries about any change in the son's condition. I do not accept that the material indicates that at all. The delegate may have thought that. He did not make a record of it. But, even if he did not, as is quite possible perhaps that he did not, that failure - and I will call it a failure for the purposes of argument - was entirely understandable in the light of the form and apparent comprehensiveness of the submission made on behalf of the applicant. It simply cannot be either good administrative practice or something mandated by the law that a decision-maker in the position of the delegate has to double-check and deal with the work and subject matter provided by an applicant in circumstances such as these. 38 As I have said earlier, it is not sought to make it clear by evidence that if this inquiry had been made, anything would have resulted from it. But I do not decide the matter on that basis and thus I do not decide it on the basis that the applicant or the applicant's advisers have not led that evidence. Even if that evidence had been led, what I am concerned with here is whether there was any error of law made by the delegate. For the reasons which I have sought to give this morning, in my view there was plainly no such legal error. 39 In those circumstances and for those reasons, the orders of the Court will be and are: