Verlicia v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-11-26|Before: Conti J, Moore J

REASONS FOR JUDGMENT 1 This judgment concerns an application under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs in respect of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), by her delegate, to refuse to waive condition 8503 of the applicant's Visitor Visa (subclass 676). On 5 November 2004, the applicant made an urgent application for interlocutory relief to prevent the Minister removing her from Australia that day. Conti J ordered that the Minister be restrained from removing the applicant from Australia and stood over for further hearing on 12 November 2004 the interlocutory application: Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1446. The matter was then transferred to my docket. On 12 November 2004, the parties consented to the matter being stood over for hearing of the application on a final basis on 22 November 2004.

Background 2 In November 2001, the applicant's father applied to the Australian Embassy in Indonesia for visitors visas for himself, the applicant, the applicant's mother and older sister. The visas were issued. The visitors visas were subject to condition 8503 of the Migration Regulations 1994 (Cth) which provides that: The holder [of a visa] 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 applicant entered Australia in December 2001. She was then 15 years. The applicant's parents later applied for protection visas (that application included the applicant), claiming persecution as ethnic Chinese Christians in Indonesia. The application was refused. The Refugee Review Tribunal affirmed the decision. The applicant's parents then made a request to the Minister under s 417 of the Migration Act 1958 (Cth) ("the Act") for a more favourable decision. That request was rejected in early 2004. The applicant was the holder of a bridging visa until 12 June 2004. From then she was an unlawful non-citizen. 3 Some time after the applicant's eighteenth birthday (9 June 2004), the applicant applied for a Close Ties (subclass 832) visa. By email dated 9 August 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affair ("the Department") informed the applicant that the she needed to apply for a waiver of condition 8503. The applicant applied for a waiver on 28 September 2004. The application took the form of a letter (and annexures) from the solicitor then acting for her. The applicant attended the Parramatta office of the Department on 27 October 2004 for an interview. She was then detained and taken to the Villawood Immigration Detention Centre. The application of 28 September 2004 was refused. The applicant was notified of the refusal in a letter dated 28 October 2004, signed by the delegate who made the decision. The letter read: Re: Condition 8503 (NO FURTHER STAY) - Waiver Request I refer to your request dated 29 September 2004 to waive the 8503 (no further stay) condition that was imposed on your Visitor visa (subclass 676). After careful consideration of the relevant legislation and the circumstances you presented in your request, I have determined that you fail to satisfy legislative criteria for the 8503 condition to be waived. Consequently, your request has been denied and the condition remains in effect. Requirements for waiving the 8503 (no further stay) condition Your request was assessed against the requirements of Migration Regulation 2.05(4). This regulation prescribes the criteria that must be met before the 8503 visa condition can be waived. Under this regulation, visa holders must demonstrate that compelling and compassionate circumstances have arisen since their visa was granted that represents a major change to their circumstances and this change was beyond their control. On the basis of information you have provided, I am not satisfied that the circumstances represent a major change in your circumstances. As you fail to satisfy Migration Regulation 2.05(4) your request for waiver of the 8503 condition has been denied. Review rights Please not that this decision is not reviewable by the Migration Review Tribunal (MRT). No further assessment of this waiver request can be taken at this or any other DIMIA office. It should also be noted that under the Migration Act 1958 the Minister does not have a general discretion to intervene in cases such as this. (emphasis added) It can be seen that the delegate said, in terms, he made the decision to refuse to waive the condition by reference to the information provided by the applicant. It can also be seen that the decision was said to be based on the delegate's conclusion that the circumstances presented by the applicant did not represent a major change in her circumstances.

The relevant legislation 4 Section 41 of the Act 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) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing: (i) any work; or (ii) work other than specified work; or (iii) work of a specified kind. (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. (emphasis added) Section 46(1A)(c) provides that: Subject to subsection (2), an application for a visa is invalid if the Minister has not waived that condition under subsection 41(2A); Regulation 2.05(4) of the Migration Regulations 1994 (Cth) provides that: 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. (emphasis added) 5 Section 474(3)(d) provides that the decision of the Minister to refuse to waive condition 8503 is a privative clause decision, as the decision is of an administrative character made under the Act and concerns a refusal to remove a condition imposed under the Act.

The application and its disposition 6 The grounds of the application were: 5. The respondent committed jurisdictional error (through her delegate) by failing to exercise its jurisdiction in that she: (a) Took into account irrelevant considerations in making her decision as follows; i. The fact that the applicant had become unlawful on 12 June 2004; ii. That the applicant had allegedly told officers of the respondent that she was not willing to depart Australia and intended to stay in Australia unlawfully if her 8503 waiver request was not favourably decided; iii. The view of an officer of the respondent based in Jakarta that not being aware of the 8503 condition does not appear to constitute a change of circumstances since the visa grant. (b) Did not take into account a relevant consideration when deciding if there had been a major change to the applicant's circumstances that consideration being the applicant's lack of knowledge of the condition being placed on her visa 6. The respondent fell into jurisdictional error, and the exercise of her jurisdiction and power were affected in that the applicant was denied procedural fairness: (a) In that the applicant, whilst being questioned briefly about her circumstances on 27 October 2004, was not questioned or given an opportunity to comment on all aspects of her application before a decision was made. (b) In that the nature and seriousness of the imposition of the 8503 condition create a legitimate expectation that detailed reasons will be provided for the failure to waive the said condition. 7 It is convenient to deal with all aspects of ground 5(a) together. It is to be recalled that the power to waive a condition conferred by s 41(2A) can be exercised in prescribed circumstances and those circumstances are prescribed by regulation 2.05(4). As Dowsett J noted in Auva'a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506 at [8], the regulations prescribe the circumstances which must exist to enliven the power to waive. Once the power is enlivened, it is probably a discretionary power. However, in these proceedings, it is unnecessary to consider the scope of the discretionary power and matters which may be relevant to its exercise. That is because, in the present case, the power was not enlivened as the delegate was of the opinion that the prescribe circumstances did not exist. 8 It is also to be recalled that the Minister's delegate refused to waive the visa condition because he was not satisfied that the circumstances of the applicant "presented" in her request represented a major change in her circumstances. So much is apparent from the fourth paragraph of the letter dated 28 October 2004 from the delegate to the applicant care of her solicitor (set out at [3] above). I infer that before making the decision, the delegate was presented with a submission prepared by another Departmental officer, probably Mr Huth. This submission is in evidence and was provided to the applicant's legal representatives at the hearing before Conti J. In the submission, Mr Huth intimated to the delegate to conclude, amongst other things, the circumstances stated in the written request for waiver submitted on the applicant's behalf did not resulted in a major change to the applicant circumstances. 9 The evidentiary foundation for the submission that various irrelevant considerations were taken into account was the fact that the three matters identified in ground 5(a) appeared in the submission made to the delegate (and two of them under the heading "Other relevant information"). It might conceivably be inferred that the three matters were taken into account by the delegate in reaching the conclusion that whatever compelling and compassionate circumstances may have developed, they had not resulted in a major change to the applicant circumstances. However in the letter of 28 October 2004 set out at [3] above, the delegate indicated that his conclusion that there was no major change was "on the basis of information you have provided". That information (contained in the submission made on behalf of the applicant dated 28 September 2004) does not include references to the three matters. I am not affirmatively satisfied that the three matters were taken into account by the delegate. Accordingly, the applicant has not established the factual foundation on which ground 5(a) is based assuming, without deciding, that had they been taken into account, that fact would or might have some relevant legal consequence. 10 At the hearing, ground 5(b) was not pressed. Nonetheless a submission was made, as I understood it, that the failure of the delegate to take into account the fact that the applicant had not known that the condition was being placed on her visa when the visa issued, was a fundamental fact that somehow might be characterised as a jurisdictional fact. Even if this be correct (and I think it is not), this submission cannot be made out on the evidence. In the waiver application (of 28 September 2004), the fact that the applicant was not aware of the condition having been imposed (at the time it was imposed) was adverted to in the application and was referred to in a statutory declaration of the applicant (dated 27 September 2004) annexed, it appears, to the solicitor's letter. Accordingly the delegate was aware that the applicant was advancing her case on the footing that while she now knew of the condition, she had not when it was imposed. In those circumstances and having regard to the delegate's reference in the letter of 28 October 2004 of this decision having been made "on the basis of information you have provided", I cannot be satisfied that the delegate did not take into account the fact that the applicant did not know the condition was being imposed at the time the visa issued. 11 Ground 6(b) was not pressed. Ground 6(a) involves an allegation that there was a denial of procedural fairness because the applicant, when being questioned about her circumstances on 27 October 2004, was not questioned or given an opportunity to comment on all aspects of her application. The difficulty with this submission is again an evidentiary one. At the hearing, the applicant sought to lead evidence about what occurred in her conversation with the Departmental officer at the interview on 27 October 2004. Aspects of that evidence appeared to be controversial. Ultimately, no evidence was given about what was said. In those circumstances it is not possible to be satisfied that the applicant was not given an opportunity to comment on all aspects of her application. I simply do not know what took place and there is no material on which I can safely infer that the opportunity was not given. Again, I am assuming, without deciding, that had the applicant not been given the opportunity as alleged, that fact would or might have some relevant legal consequence. 12 The applicant has not made out any of the grounds raised justifying the grant of constitutional writs. The application should be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)ss 41, 46

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