Thongpraphai v The Minister for Immigration & Multicultural Affairs

3 On 3 December 1998, the applicant married an Australian Citizen, Mr Brian Ongley. Their marriage was celebrated in Thailand. The applicant thereafter entered Australia on 20 February 1999 as the holder of a subclass 676 Tourist (Short Stay) Visa, ("the Tourist Visa"); it was valid for three months from the date of her arrival. 4 The Tourist Visa, which had been granted in Bangkok on 11 February 1999, contained condition 8503, otherwise known as the "no further stay" provision. Condition 8503, which is found in Sch 8 to the Migration Regulations 1994 (Cth) ("the Regulations"), that have been made under the Act, is in the following terms: "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."

Condition 8503 has its source in s 41 of the Act. Subsection 41(1) states that the regulations may provide that a visa is to be subject to specified conditions and subs 41(2) states that it may be subject to a condition that the holder will not be entitled to be granted a substantive visa while the holder remains in Australia. On the other hand, subs 41(2A) empowers the Minister to waive that condition in prescribed circumstances and, in this case, the applicant had sought a waiver of the "no further stay" provision.

5 The relevant Regulation is reg 2.05 which provides that, for the purposes of subs 41(1), the conditions to which a visa (in this case the applicant's Tourist Visa) is subject are the conditions that are set out in the part of Sch 2 that relates to visas of the subclass in which the visa is included. Tourist Visas are found in subcl 676 in Sch 2 and subcl 676.611, specifically allows for the discretionary power to impose condition 8503. 6 Neither the applicant's application for the Tourist visa nor an endorsement of condition 8503 was included in the Appeal Book. However, a letter dated 21 March 1999, written by Mr Ongley on behalf of his wife, acknowledged that there had been an agreement: "Not to apply for any other visa during her three month stay." I regard that, together with the references to condition 8503 that appear in the material that emanated from the Department's file, as sufficient to satisfy me of the existence of the condition and its imposition as a condition of her Tourist Visa. No contrary proposition was suggested by the applicant's counsel. 7 Regulation 2.05(4), as in force at the relevant time, addressed the subject of the waiver of a condition such as condition 8503. It provided as follows: "2.05(4) 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) compelling and compassionate circumstances have developed since the person was granted the visa that was subject to the condition; and (b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances are substantially different from those considered previously; and (c) if the person asks the Minister to waive the condition, the request is in writing."

Paragraph (b) need not be considered as there had been no previous refusal and the request in writing may be taken to be Mr Ongley's letter of 31 March 1999. In that letter Mr Ongley sought the waiver of the "no further stay" provision on the ground that his wife did not understand it because the Migration officer at the Bangkok Post did not explain it to her. The relevant sections of that letter were:

"It should be noted that Mrs Ongley signed a document in Bangkok at the time of receiving her current visitor's three month visa, agreeing not to apply for any other visa during her three month stay. This was done without understanding the provisions relating to spouse applications for permanent residency in Australia. …" 8 The decision-maker having received the submission on behalf of the applicant that she did not understand what had happened at the time of the grant of her visa, inquired of the Post in Bangkok and was informed that the applicant had been "fully counselled about the 8503 condition". 9 Mr Benson, counsel for the applicant, sought leave to tender and read four affidavits that had been sworn or affirmed by the applicant, her husband, her mother-in-law and by a friend, a Mr Hammond. Mr Hammond had accompanied the applicant when she attended the Bangkok Post and applied for a visa to visit Australia. He spoke with a Migration officer on her behalf. The main purpose of the affidavits was to establish that the effect of condition 8503 was not explained adequately to the applicant by the Migration officer. Although the application to read the affidavits was opposed by Mr Lloyd, counsel for the Minister, with the consent of both counsel, the matter proceeded as if the affidavits had been read; I stated that I would give my decision on the question of the admissibility of the affidavits and my reasons for my decision later: I now do so. 10 Mr Benson referred to the decision in Demir v Minister for Immigration and Multicultural Affairs (unreported 19 October 1998) ("Demir") in support of his submission that the applicant should be entitled to read the affidavits. The decision in Demir was overturned on appeal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 on an issue concerning the question of the Tribunal making inquiries about the authenticity of challenged documents. It was submitted that the judgment at first instance remained, however, as an authority for the proposition that this court should receive the four affidavits into evidence. In Demir, at first instance, which was one where a judge of this Court was reviewing a decision of the Refugee Review Tribunal, his Honour said: "Similarly, in my view, evidence is admissible upon an application for review where the basis of the application is an alleged error of law involving a failure to make proper enquiry. Such evidence however, is not admissible as going to the truth of the matter which it is said the proper enquiry would have revealed. To use the evidence in that way would, as Marshall J observed in Kenal Ozberg v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 19 January 1998] turn 'the review into a review on the merits'. However, it remains open to admit the evidence as going to the reasonableness or propriety of the enquiry which it is suggested the decision-maker should have made. Accordingly, I regard the affidavits referred to in the applicant's notice of motion as admissible on that limited basis."

As to this subject, Sackville J in the Full Court, with whom North J agreed, said:

"The Minister contended that the primary Judge should not have admitted the evidence tendered on the application before him. Since the documents tendered postdated the RRT's decision and were different in form to the arrest warrant and charge sheet relied on by Ms Demir before the RRT, they appear not to have been relevant to any issue that was before his Honour. However, it is not necessary to make a ruling on the evidentiary question, since their reception into evidence does not affect the conclusions I have expressed."

Kenny J, the remaining member of the Full Court, in a separate judgment, said:

"If it mattered, I would accept the appellant's submission that the additional material on which Ms Demir sought to rely was simply fresh material that had come into her possession after the RRT's decision. As such, the material was not admissible on any question before his Honour …" 11 In Ozberg v Minister for Immigration and Multicultural Affairs [1999] 79 FCR 249 Marshall J refused to receive into evidence two affidavits. The applicant had asserted that the fresh evidence should be admitted in the Federal Court proceedings in order to establish that an opposite result would have been reached if the new evidence had been available to the Tribunal. Following the decision of Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 ("Servos"), his Honour held that the Court had no jurisdiction to admit fresh evidence. His Honour went on to hold that the real purpose for which admission of the fresh evidence was sought was to contradict the evidence which had been before the Tribunal. In Servos, the Court noted that appeals from the Administrative Appeals Tribunal were limited to circumstances of law. Spender J said at 385: "The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the Court on an application pursuant to s 44 of the Act, the object of which is to invite the Court to disagree with a factual conclusion reached by that Tribunal."

The conclusion of the primary judge in Demir must also be reconsidered in light of a subsequent decision of a Full Court of this Court in Yilan v Minister for Immigration and Multicultural Affairs (1999) FCA 854 where the Court upheld the decision of the primary judge who had refused to receive into evidence a certain affidavit. In a unanimous decision the Court said at 13:

"O'Connor J, who was the primary judge, was not prepared to admit and consider this material. She observed that the purpose of the tender of the material was to demonstrate the alleged inadequacy of the inquiry made by the Tribunal as to the existence of a demonstration in Ankara in which Ms Yilan had said she was a participant and following which she had been arrested and tortured. It did not however concern a failure to inquire at all which was the case in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. Rather the additional material was concerned with the quality of the inquiry or the nature of the inquiry made." 12 The submissions that were made on behalf of the applicant in the present case did not, at times, distinguish between:

· her complaint that she did not understand the meaning and effect of condition 8503 when she attended at the Bangkok Post in the company of Mr Hammond; and · her complaint that the Minister had failed to waive condition 8503.

The only possible argument that could be advanced on the applicant's behalf was that her lack of understanding was a compelling and compassionate development. The difficulty with that proposition, however, is that one could not readily adopt any derivative of the word "develop" to her lack of understanding. If she has told the truth, her lack of understanding occurred in Bangkok at the time when she applied for the Tourist Visa: her lack of understanding did not thereafter develop. It could only have been her realisation of her lack of understanding that developed. The applicant has not challenged the right of the Minister's delegate to impose condition 8503; her challenge is directed towards the refusal of the delegate to find that compelling and compassionate circumstances have developed. To receive affidavits that would or might establish a lack of understanding in February 1999 at the time when the Visa was granted would not assist the applicant in her pursuit of her claim that compelling and compassionate circumstances thereafter developed.

13 Although counsel for the applicant did not challenge the Minister's right to impose the "no further stay" provision, he claimed that there was an obligation on the Migration official to ensure that the applicant knew and understood the nature of the condition that was attached to her visa and the effect of that condition. No authority was advanced in support of that proposition and I am not prepared to accept it. The complaint that the decision-maker should have made further and better investigations about the circumstances under which the Tourist Visa issued, implicitly sought to raise the level of the inquiry of this Court into the conduct of the decision-maker into something akin to a judicial inquiry. It was claimed on behalf of the applicant that an inquiry made some fifteen months after the event, and a reply from an officer who had no personal participation in the decision to grant the visa, were, in their totality, inadequate. Appealing though that submission may be at first glance it overlooks the fact that the decision-maker was involved in an administrative exercise - not a judicial exercise. 14 Bearing in mind the administrative nature of the decision-maker's duties there was no obligation on her to take the matter any further. The effect of the submissions that were made on behalf of the applicant, would, if accepted, amount to the Court engaging, impermissibly, in a merits review. The question whether this decision-maker might have come to a different view on an issue had she made further inquiries of the applicant (and of her family and friends) is not a matter that can be agitated in these judicial review proceedings. 15 The decision-making process in which an administrator engages is not the same as the fact-finding role of a judicial officer in civil litigation. So much is apparent from the remarks in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 where their Honours said at 282-283: "Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error law. The term 'balance of probabilities' played a major part in [the] submissions … As with the term 'evidence' as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance …" 16 Just as administrative decision-making is different from civil litigation, so the role of a Court reviewing an administrative decision is different from its role in civil litigation in which it assesses evidence and makes findings of fact. Brennan J explained the limitations in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, fore the repository alone." 17 There can be circumstances where a Court of Review may receive additional evidentiary material but I do not consider that this is such a case. The record of proceedings as contained in the Appeal Book sets out sufficient of the facts and the competing issues without there being a need or a justification to receive additional material. It is clear from the records that the applicant had asserted that she did not understand the imposition and effect of the "no further stay" provision. It is also clear that the delegate knew that this was her assertion for reference is made to it in the delegate's reasons. 18 I read the affidavits for the purposes of considering the question of their admissibility and, in my opinion they did not carry the matter any further. Thus, if I am wrong in rejecting the tender - if I should have received them into the evidence - their contents do not, in my opinion advance the applicant's cause. The affidavits merely spell out, in substance and in detail, that which is known to be fundamental to her case: she did not know and understand the effect of the "no further stay" provision. 19 The first issue that must be addressed is whether "compelling and compassionate circumstances" have developed since the grant of the applicant's Tourist Visa. The need to investigate that issue means that, before any consideration can be given to the applicant's application for permanent residence, it was essential for her to have the Minister waive condition 8503. Her application for waiver was rejected on 30 May 2000. On the following day she was informed that her application for permanent residence had been determined to be invalid. 20 The question of waiver was addressed in an internal departmental memorandum entitled: "Request to waive condition 8503 No further Stay". After noting the claim that the applicant had not understood what she had signed and the substantial costs and trauma that would be incurred if the applicant had to return to Bangkok the Minister's delegate wrote: "Ms Thongpraphai had signed the 8503 undertaking before being granted the visa with condition 8503(f.8). The department's post in Bangkok confirmed this and advised that Ms Thongpraphai had been fully counselled about the effects of the condition (f.32). … The policy intention is that condition 8503 may be waived after the visa holder enters Australia if circumstances now exist that could not have been foreseen when the visa was granted and which are beyond the control of the visa holder. It is not intended that marriage to an Australian citizen would itself constitute such a change in circumstances." 21 The circumstances that must fit the description of "compelling and compassionate" must have developed since the grant of the visa in February 1999: Surinakova v Minister for Immigration Local Government (1991) 33 FCR 87. There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality. 22 Mr Ongley's letter of 11 March 1999 is the only information that the applicant put before the decision-maker. It did not show any change in circumstances whatsoever. It claimed that the applicant did not understand the meaning or effect of the "no further stay" provisions. But that was not a change in her circumstances, save only for the possibility that her realisation of the effect of the condition may have developed at a later date. The letter also addressed the subject of costs that would be incurred if the applicant had to return to Thailand and the emotion and trauma that she and her husband would suffer; but these issues would have existed even if she had been aware of the meaning and effect of the condition. 23 There was an inordinately long and an unexplained delay of over twelve months from 31 March 1999 to the date of the decisions, 30 and 31 May 2000. It would seem that the delay was solely at the Australian end. Information sought by Australia from Bangkok was obtained in less than a week. The simple nature of the application and the time properly needed to consider it could be measured in days - not weeks - let alone months. However, having said that, does it assist the applicant? The subject of delay was not mentioned by the decision-maker. Was that a material omission? 24 I have no doubt that the long wait must have been difficult to endure - wondering, waiting and hoping for a favourable response. However, even though I can not approve of the Department's conduct, I am not persuaded that the delay amounted to a compelling and compassionate circumstance that developed subsequent to the applicant being granted her visa. The failure of the decision-maker to mention the delay does not therefore justify the intervention of this court. In my opinion, the decision not to waive compliance with the "no further stay" provision cannot be faulted. 25 In those circumstances her application for a permanent visa was not valid because of the provisions of par 46(1)(e) which relevantly provide that an application for such a visa is valid if, and only if, the Minister has waived the condition under subs 41(2A) 26 It was conceded by Mr Lloyd, counsel for the Minister, that an error of law occurred in the reasons for the decision not to waive the "no further stay" provision. However, so he claimed, the error did not affect the delegate's decision and this Court should not therefore act upon it. 27 Regulation 2.05.(4)(a) ("the old provision") as it applied to this applicant and to her application read as follows: "(a) compelling and compassionate circumstances have developed since the person was granted the visa that was subject to the condition." 28 On 20 October 1999, Migration Amendment Regulations 1999 No 13 came into force. As a result, as from 1 November 1999, par (a), ("the new provision") now reads: "(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." 29 The delegate in compiling the reasons in support of the decision not to waive the operation of condition 8503 incorrectly referred to the new provision, making particular reference to the fact that the compelling and compassionate circumstances that had developed had to be those over which the applicant had no control. It is quite clear from a comparison of the old and the new provision that applicants now face a much sterner task in seeking a waiver of condition. However, both the old provision and the new provision require the presence of compelling and compassionate circumstances. As I have concluded that no such circumstances existed in the applicant's history, the delegate's mistake in referring to the incorrect provision has not had any effect and can be overlooked. 30 The decision of a Full Court of this Court in Altintas v Minister for Immigration Local Government and Ethnic Affairs (1994) 53 FCR 588 dealt with earlier provisions of the Migration Act that related to the "no further stay" provision. However, because of the material changes in the legislation that have occurred since that decision, it is not now, in my opinion, an authority that is binding on me. In that case, the applicant, a Turkish National, obtained a Close Family Visitor Visa authorising her to make one visit of three months duration to Australia, subject to a "no further stay" provision. Shortly after her arrival in Australia, she lodged an application to remain permanently. Although the language of the Act dealing with the right to impose a "no further stay" provision was different, those differences are not material for present purposes. The matter of difference, and the reason why the decision in Altintas is not applicable to these proceedings, is that the relevant regulation in Altintas that prescribed criteria in relation to the entry permit for which the applicant applied after she entered Australia did not prescribe in relation to that class of entry permit a criterion that the applicant's Visa had not been granted with a "no further stay" condition. 31 In the present case, unlike Altintas, the applicant has had the "no further stay" condition imposed and s 46 states that the application for permanent residence will be valid if, and only if, the Minister has waived that condition. Hence, the failure by the applicant to obtain the waiver meant that her application for permanent residence was not validly made. 32 Mr Lloyd submitted that the applicant's challenge to the imposition of the "no further stay" condition was not lodged within the twenty-eight days specified in par 478(1)(b) of the Act. I do not think that that submission correctly addresses the issue; she has not challenged the imposition of the condition. Her challenge is to the Minister's failure to waive the condition. Her application was filed on 30 June 2000 and it has not been suggested that this was more than twenty-eight days of her "being notified of the decision". 33 It remains to consider the last of the arguments that were submitted on behalf of the applicant. Her counsel submitted that there was no evidence or other material to justify the making of the decision that the condition 8503 was valid - see par 476(1)(g) of the Act. Counsel for the Minister complained, quite rightly, that this ground did not appear in the application for review and that there had been no application to amend the grounds upon which review was sought. Even so, there is no merit in the proposition; there was evidence that justified the decision. In the first place there was the acknowledgment in Mr Ongley's letter of the existence of the condition and secondly, there was the advice from the Bangkok Post of the imposition of the condition. The decision to refuse to waive the condition meant, by implication, that the decision-maker regarded the condition as being validly in existence. That was open to the decision-maker on the evidence. 34 In my opinion, this application must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Solicitor for the Respondent: Blake Dawson Waldron