Terera v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT introduction 1 This is an application made under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the respondent's delegate ("the delegate") not to waive a condition 8503 (sometimes called a "no further stay" condition) that was imposed on the applicant's Tourist (Short Stay) visa. The effect of the condition is that the applicant (who is a young child) cannot apply for anything other than a protection visa whilst he remains in Australia. While he is subject to condition 8503, he must make any application that would permit him to remain with his mother in Australia from outside Australia. 2 The application is supported by an affidavit of the applicant's solicitor, James Malcolm Woods, sworn on 21 February 2002 and accompanying exhibits. There is also an affidavit, accompanied by exhibits, sworn on 6 May 2002 by Jacqueline Anne Davis, the respondent's solicitor. legislative framework 3 Schedule 8 to the Migration Regulations 1994 (Cth) ("the Migration Regulations") sets out the terms of condition 8503. Condition 8503 is 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. The Migration Act 1958 (Cth) ("the Act") provides, in s 41, that a visa may be issued subject to conditions. Section 41 relevantly provides: (1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions. (2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to: (a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or (b) … (2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3). (3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection. Amongst other things, schedule 2 of the Migration Regulations makes provision with respect to visas within the subclass 676 "Tourist (Short Stay)". Under item 676.6, headed "Conditions", provision is made for the imposition of condition 8503. 4 Section 46(1A) of the Act operates to prevent the applicant, whilst in the migration zone, from making a valid application for a visa that would permit him to remain with his mother and his new family in Australia. For example, he cannot presently make an application for a "Child (Migrant) (Class AH)" visa (for which he may well be eligible) unless he makes application outside the migration zone. Section 46(1A) relevantly provides: Subject to subsection (2), an application for a visa is invalid if: (a) the applicant is in the migration zone; and (b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and (c) the Minister has not waived that condition under subsection 41(2A); and (d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted. 5 Regulation 2.05 concerns the conditions applicable to visas. Sub-regulation 2.05(4) sets out the circumstances in which the Minister may waive conditions of the kind referred to in par 41(2)(a) of the Act. Sub-regulation 2.05(4) states: 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. There would appear to be no provision in the Act that would require a decision-maker to give reasons for deciding not to waive a condition described in par 41(2)(a) of the Act. background facts 6 The following facts are not in contention. The applicant, Chengetai Mufudzi Terera, was born on 22 August 1996 and is a citizen of Zimbabwe. He is not a citizen of Australia. He entered Australia on 29 December 2001 when he was five years old, in order to visit his mother who was studying in this country. 7 When the applicant arrived in Australia in 2001, he had only one living parent. His father had died before he turned three years of age. His mother, Janet Terera, had entered Australia, on 6 November 2000, on a student visa granted to her in Harare. In Australia, she met and fell in love with Jerram Simonsen (who is an Australian citizen). They decided to marry and were making wedding plans when the applicant arrived in Australia. Although there was no visa endorsement in evidence before me, it was not in issue that, at the time of his arrival in Australia, the applicant held a subclass 676 Tourist (Short Stay) visa that had been issued in Harare on 28 December 2001 and was subject to a "no further stay" condition. 8 As already noted, a "no further stay" condition 8503 was imposed on the applicant's visa when it was granted. An email sent on 21 January 2002 by a Departmental officer in Harare to a Departmental officer in Melbourne recorded that: I have granted single entry with 8503 condition. Should applicant (child) want to stay with his mum, she was advised that she should apply for child migration. Applicant has fully understood and strongly stressed that he would return to Zimbabwe as he would be attending school. It is inherently unlikely that the then five-year-old applicant "fully understood" the significance of the imposition of condition 8503. This probable error naturally raises doubts about the reliability of the other information conveyed in the email from Harare. It would, however, be inappropriate in this proceeding to say anything further on this matter. 9 A little over two weeks after the applicant's arrival in Australia, a waiver application under reg 2.05(4) of the Migration Regulations was made on his behalf. By letter dated 15 January 2002, Janet Terera and Jerram Simonsen requested the waiver of the applicant's 8503 condition. Omitting formal parts, the letter read as follows: Janet Ruvimbo Terera is the biological mother of [Chengetai Mufudzi Terera]. Janet arrived in Australia in November 2001 in order to study for a diploma in International Trade - which she completed in November 2002. We will be married on the 19th of January and we are lucky to have our son present on such a wonderful occasion. Chengetai is five years old and we plan to include him in the Application for migration to Australia by a partner (Form 47SP). Chengetai's visa expires on 30 March 2002 and has condition '8503 No Further Stay'. We request that the Department of Immigration and Multicultural Affairs waive this condition to enable our son to stay here with us in Australia (while we lodge this application) and attend primary school as he is of school-going age (Chengetai will be turning 6 on the 22 August 2002). Jerram Simonsen is a citizen of Australia (Record of Birth 0227/1971, District of Leven; Registration No. 7233/1971) and Janet is the holder of Zimbabwean Passport No. ZE401792, Student Visa No. V803<7416344Z1, expiring 02 November 2003. We are obviously very keen to have our son live with us here in Australia. Janet Terera and Jerram Simonsen married in Australia on 19 January 2002. (I note that the reference in this letter to Ms Terera's date of arrival in Australia should be "November 2000" and not "November 2001". There is also an evident error in the statement that she completed her course in "November 2002". Nothing, however, turns on this.) 10 By letter dated 24 January 2002, the delegate refused the application for waiver of condition 8503. The delegate's letter relevantly stated: The records of the Australian High Commission in Harare show that before the visa was granted to Chengetai, you were advised by the High Commission that Chengetai would not be able to remain in Australia with you on this visa and you specifically assured the High Commission that he would be returning to Zimbabwe to attend school. Therefore I cannot accept that there has been a compelling and compassionate change in his circumstances since the visa was granted. The fact that you have married since his arrival does not constitute such a change, since it was not a matter beyond your control and I would find it hard to accept that your decision to marry was unforeseeable when the visa was granted, less than one month ago. Accordingly, I am writing to advise you that after assessing your submission, I am not satisfied that the legal requirements for waiving the visa condition have been met. This means that I have not exercised the waiver, that the condition remains in place and that your son is therefore prevented from making a valid application for any class of visa other than a Protection Visa or bridging visa while he remains in Australia. There is no bar to him making a permanent visa application from outside Australia. As previously noted, there may be some doubt about the reliability of the information conveyed in the email from Harare and relied on by the delegate in the 24 January 2002 letter. 11 By letter dated 12 February 2002, the applicant's solicitors wrote to the delegate requesting that he reconsider the decision not to waive the condition. The letter advised: The compelling and compassionate circumstances that have developed since our client was granted the visa is: 1. that she has become aware that the condition 8503 does not allow her son to remain here as a visitor or to apply for another visa. This lack of awareness is through no fault of her own and if the visa officer had informed her of this condition, she may have applied for a different visa i.e. he could have applied for a Partner visa as a secondary applicant; 2. the circumstances in the home country are marginally worse in Zimbabwe since applying for the visitor visa. There has been an election called and the situation is gradually becoming less and less safe; 3. the mother has now married and is applying for a spouse visa and will be including the child on her application; 4. having now been reunited with his mother, having met his new step father, made some friends in Australia and realised that his future lies here, the child does not want to return to Zimbabwe. This was not the plan at the time that the visa was granted and clearly represents compelling and compassionate circumstances, over which the Applicant has no control; and that has resulted in a major change to his circumstances. 12 On 14 February 2002, the delegate advised that he was unable to reconsider his earlier decision but he would "treat this as a second request for waiver": see Migration Regulations, reg 2.05(4)(b). In a letter also dated 14 February 2002, however, the delegate again declined the applicant's request for a waiver of the condition. The letter stated: As a previous request for waiver has been refused, it is only possible to waive it now if the circumstances supporting waiver are 'substantially different' from those considered previously. At least some of the information in the submission from your solicitors does not appear 'substantially' different to that considered previously, to me. You had previously advised that you had married and wished to include Chengetai in your application for a spouse visa, so these facts do not constitute 'substantially different' matters. I cannot accept that the fact that Chengetai has changed his mind and now wishes to remain in Australia as constituting a change over which he 'had no control', as required by law. Nor can I accept the claims made that you had no awareness that his visa was subject to a 'no further stay' condition. Reference to the condition is included on the standard visitor visa application form and is therefore available to all applicants and those who act for them. Also, as indicated in my previous correspondence, this aspect of the visa was part of the discussions between the Australian High Commission and the persons who contacted it about the application. It is possible that I have misunderstood the High Commission's advice to me about the person to whom they had spoken, but the matter is definitely pointed out by the High Commission and it was not unreasonable to expect that you would be well aware that Chengetai was not able to apply for another visa in Australia. Subsequently, in a letter dated 19 February 2002, the applicant's solicitors provided further material to the delegate and made additional submissions. This proceeding was commenced on 21 February 2002. 13 The applicant has not challenged any decision made by the delegate other than the decision communicated by the letter of 24 January 2002. If, however, this first decision was vitiated by jurisdictional error and, in consequence, there was no decision under reg 2.05(4)(a) of the Migration Regulations, then any subsequent decision would fail because there was no effective previous refusal for the purposes of reg 2.05(4)(b) of the Migration Regulations. the parties' submissions 14 At the hearing, the applicant was granted leave to amend his application. The amendments expressed the grounds most heavily relied on by his counsel at the hearing, although they had been foreshadowed in written submissions filed earlier on his behalf. 15 Counsel for the applicant principally contended that the delegate had taken into account irrelevant matters in making the decision under review. These matters were (1) that the marriage of the applicant's mother was under her control; (2) that the marriage of the applicant's mother was foreseeable by her; and (3) that the applicant's mother had been told that the imposition of condition 8503 on the applicant's visa meant that he would be unable to remain in Australia with her on that visa and that the applicant's mother assured the Australian High Commission in Harare that the applicant would be returning to Zimbabwe. In written submissions, the applicant also challenged the delegate's authority to make the decision. At the hearing, however, the applicant's counsel did not pursue this ground. 16 Counsel for the applicant contended that the errors that he identified in the delegate's decision were jurisdictional errors of the kind referred to in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at 351 per McHugh, Gummow and Hayne JJ. 17 The respondent contended that there were no errors in the delegate's decision. In written submissions, counsel for the respondent maintained: In assessing whether the compelling and compassionate circumstances had developed since the grant of the visa, some 2 weeks prior to the application for waiver, the delegate noted that at the time the visa was granted it was confirmed that the applicant would be returning to school in Zimbabwe. That was of course notwithstanding that it was known when the visa was granted that the applicant's mother was to be married. The delegate did not consider that the marriage of the applicant's mother, since the applicant's arrival in Australia, constituted a compelling and compassionate change in circumstances. In doing so he noted that her marriage was both not a matter beyond her control and that the decision to marry appeared to have been contemplated at the time of the grant of the visa. … . The requirement in the regulation is that the circumstances that have developed, must have developed since the visa was granted. The delegate was not satisfied that they had. 18 The respondent contended that, in making the decision, the delegate had not taken account of any irrelevant consideration, nor had he failed to take into account any relevant consideration. In written submissions and at the hearing, the respondent's counsel emphasised that reg 2.05(4)(a) required that "compelling and compassionate" circumstances must have "developed" since the grant of the visa. He submitted that: The point made by the delegate was that those circumstances had not developed in the period of some two weeks between the date of the grant of the visa on 28 December 2001 and the request for the waiver being made on 15 January 2002. The marriage was contemplated at the time of the visa grant. consideration 19 The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 permits the conclusion that, if jurisdictional error, in the sense referred to in Yusuf, is established in respect of a decision that would otherwise be a "privative clause decision" within s 474 of the Act (as in the decision under review), then orders of the kind the applicant seeks may be made: see, for example, M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 at 313-316 per Goldberg, Weinberg and Kenny JJ. 20 By virtue of the written request that was made on the applicant's behalf on 15 January 2002 and reg 2.05(4)(a), the delegate was required to decide whether compelling and compassionate circumstances had developed since 28 December 2001 (when the applicant's visa was granted) resulting in a major change in the applicant's circumstances over which he had no control. The gravamen of the applicant's case was that the delegate asked himself the wrong question, because he did not ask whether he, Chengetai, met the criteria in reg 2.05(4)(a) but only whether his mother did. 21 Although one must not read the delegate's letter of 24 January 2002 with an eye for error, the terms of the delegate's letter of 24 January 2002 (set out above) demonstrate very clearly that the delegate made his decision as if Janet Terera, not her young son, were the applicant for waiver. This can be the only explanation for the delegate's statement that, "[t]he fact that you have married since [Chengetai's] arrival does not constitute … a change, since it was not a matter beyond your control and I would find it hard to accept your decision to marry was unforeseeable". It is plain enough that the five-year-old applicant could have "no control" over his mother's decision to marry (or settle in Australia); and there was nothing before the delegate to indicate that, from the child's point of view, his mother's decision to marry was "foreseeable" in any sense. 22 The letter of 24 January 2002 shows, clearly enough, that the delegate did not consider the application for waiver by asking himself the relevant question. Regulation 2.05(4)(a) requires a decision-maker to have regard to the situation of the applicant (who, in this case, is a child) on whom the condition was imposed and from whom the condition would be removed if the decision-maker found the criteria in reg 2.05(4)(a) were satisfied. Put another way, if the delegate found that these criteria were met, it would be immaterial that the applicant's mother's marriage was under her control or that, from her point of view, it was a foreseeable event. If the delegate were satisfied that, so far as the five-year-old applicant was concerned, since 28 December 2001 there had developed "compelling and compassionate circumstances", resulting in a major change in his personal circumstances over which he had no control, then it would be irrelevant that these circumstances were under the control of his mother or anyone else. By virtue of reg 2.05(4)(a)(i), the applicant would only be disqualified from a favourable exercise of the Minister's discretion if these circumstances were under the applicant's control. Given the applicant's age, it is unlikely that he would be disqualified on this account. 23 There is, moreover, nothing in reg 2.05(4)(a) that would make the "foreseeability" of any major change in an applicant's circumstances a disqualifying factor. As the decisions in Schaap v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 65 ("Schaap") [2000] FCA 1408 and Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 ("Naidu") indicate, earlier versions of the Procedures Advice Manual (which may provide a decision-maker with some guidance) referred to a notion of foreseeability. This led the decision-makers in those cases into error. Although the version of the Manual that was current at the time of the decision under review now contained no such reference, the delegate in the present case also relied on the fact that the applicant's marriage was "foreseeable" (by her) as a factor telling against the waiver of the condition. This consideration is no less irrelevant in this case than in Schaap and Naidu. Regulation 2.05(4)(a) contains no criterion of foreseeability: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39. If compelling and compassionate circumstances had developed since 28 December 2001, resulting in a major change in the applicant's circumstances outside his control, then it would be immaterial that the circumstances were in any sense "foreseeable" by him or anyone else. 24 In the circumstances, the delegate's failure to address the question arising under reg 2.05(4)(a) constitutes jurisdictional error and may well have affected the outcome of the decision under review, notwithstanding the fact that there was only a little over a fortnight between the grant of the visa, subject to condition 8503, in Harare and the application for waiver of the condition in Melbourne. 25 In Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21], O'Loughlin J held that the words "compelling and compassionate" in reg 2.05(4)(a) "call for the occurrence of an event or events that are far-reaching and most heavily persuasive". In a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of reg 2.05(4)(a). When a visa-holder requests the Minister, or Ministerial delegate, to waive a "no further stay" condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder. 26 This is well illustrated by the decision by Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 ("Nguyen"). In Nguyen, the applicant entered Australia from Vietnam on 2 June 2000 on a business visa subject to condition 8503. The following month he married an Australian citizen and, six days later, applied for a spouse visa. His claim that the condition was invalid was treated by the Minister's delegate as a request for waiver, and the request was refused. Dealing with the visa-holder's contention that his marriage entitled him to the waiver of the condition, Marshall J said at 173 that "[t]he fact of a marriage to an Australia citizen without more … can rarely if every constitute an event which is a compelling or compassionate circumstance". The case presently before the Court is, however, entirely different from the situation in Nguyen and cannot be dealt with in this straightforward manner. 27 There are few in Australia who would dispute that amongst the greatest needs for a young child is the benefit of a nurturing family. For a research-based account of the effect on young children of family and separation from family, see Graham Vimpani, George Patton, Alan Hayes, "The relevance of child and adolescent development for outcomes in education, health and life success" in Ann Sanson (ed), Children's Health and Development: New Research Directions for Australia (Australian Institute of Family Studies, Research Report No 8) ch 2, pp 18, 22-23; H Rudolf Schaffer, Making Decisions about Children: Psychological Questions and Answers (Blackwell, 1992 reprint) at 107 and following; Lois J Aspin, The Family. An Australian Focus (Longman Chesire, 3rd ed, 1994) p 116; Paul R Amato, Children in Australian Families: the Growth of Competence (Prentice Hall, 1987) p 17; and Robyn McKay (Executive Director, Families, Commonwealth Department of Family and Community Services) "Children, Families and Communities - the Investment Partnership", 5th National Parenting Conference, University of Melbourne, 22 November 2001. It appeared from the letter of 15 January 2002, which was written by Janet Terera and Jerram Simonsen on the applicant's behalf, that between the applicant's arrival in Australia and his meeting with Mr Simonsen and his reunion with his mother, his mother (who was his sole remaining biological parent) and her husband-to-be decided to bring the five-year-old applicant under their joint care and protection and within their new family in Australia. It goes almost without saying that this decision was one of profound significance for the child. 28 This was the matter placed before the delegate in January 2002. On any natural reading of the letter of 15 January 2002, the couple not only informed the decision-maker that they were to marry but that, since his arrival in Australia, they had decided and now desired to include the five-year-old boy in his mother's application for migration to Australia, in order to incorporate him within their family. It will be recalled that, in the letter, the applicant's mother and her husband-to-be specifically asked the delegate to "waive this [8503] condition to enable our son to stay here with us in Australia (while we lodge this application) and attend primary school …". I do not think that it was open to doubt that, upon reading the letter of 15 January 2002, the delegate was asked to determine whether the inclusion of a five-year-old orphan in a family under the care of his remaining parent and a person desiring to be his new father constituted "compelling and compassionate circumstances" for him. It was plainly open to the delegate to decide that such were the circumstances that had developed since the applicant was granted the visa. As already noted, it could scarcely be said that these circumstances were under the child's control or, indeed, that they would not result in a major change to for him. 29 As the respondent's counsel submitted at the hearing, in deciding whether these circumstances had "developed" in the relevant period, the delegate was entitled to have regard to the fact that only a little more than two weeks had elapsed since the visa had been granted and the waiver application made. It was also open to him to take the view that, having regard to the information sent to him from Harare (assuming it to be reliable in the relevant particulars) and the letter of 15 January 2002 (assuming it to be written in good faith), there had been an important development in the circumstances affecting Chengetai, in that his mother and her husband-to-be had decided to provide him with their parental care and that, having regard to his age, the significance of this development, so far as the child was concerned, was such as to constitute "compelling and compassionate" circumstances, within the meaning of reg 2.05(4)(a). 30 In view of this conclusion, it is unnecessary to consider further the third ground relied upon by the applicant's counsel at the hearing. I have already referred in these reasons to the information from the Departmental officer in Harare. If the delegate considered that the information was reliable in material particulars, it seems to me that it was open to him to consider it, providing he did so in relation to the question that reg 2.05(4)(a) required him to address. 31 For the reasons stated, I would grant the applicant the relief that he seeks. The respondent should pay the costs of the application. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.