Andrayani v Minister for Immigration

[2010] FMCA 992

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDRAYANI v MINISTER FOR IMMIGRATION [2010] FMCA 992

MIGRATION – Review of decision of a delegate of the respondent – delegate properly understood applicant’s claims – delegate dealt with all material before her – delegate properly understood “compelling” circumstances – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.41, 476
Migration Regulations 1994 (Cth), reg.2.05, Sch.2, Sch.8

Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590
Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 360
Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570

Applicant: YUANA ANDRAYANI

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 1839 of 2010

Judgment of: Nicholls FM

Hearing date: 23 November 2010

Date of Last Submission: 23 November 2010

Delivered at: Sydney

Delivered on: 23 November 2010

REPRESENTATION

Appearing for the Applicant: In Person

Appearing for the Respondent: Ms E Warner Knight

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application made on 23 August 2010, and amended on 1 November 2010, is dismissed.

2. Applicant to pay the respondent’s costs set in the amount of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1839 of 2010

YUANA ANDRAYANI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 23 August 2010, and amended on 1 November 2010, made under s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of a delegate of the respondent Minister made on 22 July 2010 not to waive condition 8503, which had been imposed on the applicant’s Business (Temporary) Subclass 456 visa.

Relevant Law

1. Section 41 of the Act provides that specified conditions may be imposed on visas by way of regulatory prescription. The applicant today, Ms Andrayani, came to Australia with a temporary visa which had such a condition attached to it.

2. At the relevant time, s.41 of the Act was relevantly in part in the following terms:

   “(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”.

3. Ms Andrayani came to Australia as the holder of a Business (Temporary) Subclass 456 visa. Item 456.612 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”) provides that condition 8503 may be imposed on this subclass of visa. Such a condition was imposed on Ms Andrayani’s visa.

4. The terms of condition 8503 are set out in Sch.8 to the Regulations.

   “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.”

5. Section 41(2A) of the Act provides that the Minister may waive such a condition (see [3] above).

6. Regulation 2.05(4) relevantly sets out the circumstances in which this may occur:

   “(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) 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.”

Background

1. On 24 June 2010, Ms Andrayani lodged with the Minister’s department a Condition 8503 (No Further Stay) Waiver Request Form (Court Book – “CB” – CB 1 to CB 2). In this, Ms Andrayani indicated that she wished to remain in Australia as her son (who was born on 11 May 2010 in Australia), as a Christian, would be harmed by her husband’s family and would not be accepted by their community and family in Indonesia. She also indicated that her husband’s visa was not limited by condition 8503.

2. A “Submission to Delegate” was prepared by an officer of the respondent’s Department (CB 12 to CB 15). This indicated that Ms Andrayani arrived in Australia on 4 February 2008 on a Temporary Business visa, which expired on 4 March 2008. She applied for a protection visa on 20 February 2008. This application was refused. The departmental officer indicated that “Ms Andrayani subsequently lodged numerous avenues of review available to her including a review with the Refugee Review Tribunal, three Judicial Reviews and one Ministerial Intervention. All of these applications proved unsuccessful” (CB 13).

3. Ms Andrayani requested a waver of this condition because of changes in her circumstances. These were that she had married and had given birth to a son. She was fearful that if she were to return to Indonesia with her son, her husband’s family, who are Muslim, would seek to harm her son because he was a Christian.

4. An example of such harm was said to be that the family would seek to have the child circumcised.

5. The departmental officer stated that Ms Andrayani’s circumstances were compassionate, but not compelling. In essence, this was because the relevant circumstances were not such as to be matters over which she had no control (CB 14.7 and with reference to reg.2.05(4)(a)(i)).

6. She recommended to the delegate that the circumstances were not such as to meet the provisions of reg.2.05(4) of the Regulations. She recommended that condition 8503 not be waived.

7. This recommendation was accepted by a delegate of the respondent, who made a decision to that effect on 22 July 2010 (CB 15).

Application to the Court

1. The application to the Court relies on three grounds:

   “1. THE DELEGATE OF MINISTER FAILED TO UNDERSTAND THE HARM WHICH WILL BE SUFFERED AND CAUSED TO OUR SON BECAUSE HE IS CHRISTIAN.

   2. WHILE MAJOR CHANGE OF CIRCUMSTANCES IS ACKNOWLEDGED THE DELEGATE FAILED TO SEE THAT THE RELATIONSHIP BETWEEN ME & MY HUSBAND IS DIFFERENT BECAUSE MY HUSBAND CHANGED HIS RELIGION & MARRIED ME AS A CHRISTIAN AND THE DEPARTMENT IS AWARE OF THAT & NEGLECTED TO SEE THAT HARM WILL BE CAUSED BY MY HUSBAND’S MUSLIM FAMILY.

   3. MY CIRCUMSTANCES WERE NOT ACCEPTED AS COMPELLING BECAUSE THE DEPARTMENT DOES NOT UNDERSTAND WHAT COMPELLING IS”.

2. No further particulars were provided to the Court, nor were any written submissions provided to the Court in support of these grounds.

Before the Court

1. The applicant today appeared before the Court in person. She was assisted by an interpreter in the Indonesian language. Ms E Warner Knight appeared for the Minister. In addition to the Court Book, the Court also has before it written submissions filed on behalf of the Minister.

Consideration

1. The applicant’s first ground, alleging that the delegate “failed to understand the harm” which her son would suffer if they were to return to Indonesia because he is a Christian, cannot be supported on the material before the Court. The recommendation provided to, and endorsed by, the delegate plainly outlined and considered the applicant’s claims in relation to her son (at CB 14):

   “e) Are these circumstances compelling?

   No. Compelling circumstances are generally taken to refer to circumstances that are involuntary and characterised by necessity such that the visa holder has little or not alternative but to extend their stay in Australia.

   Ms Andrayani claims that she wishes to lodge an application for her son to keep him in Australia as she fears that her husband’s family will harm the child as he is Christian. Ms Andrayani claims, ‘I refuse to circumcise him such will not be accepted by our community and family in Indonesia’. It can be reasonably assumed that Ms Andrayani would have been aware of her husband’s religious faith prior to their marriage and the birth of their son, furthermore Ms Andrayani would have been aware of possible consequences for her son such as, circumcision. In addition to this, Ms Andrayani and Mr Riyanto [the applicant’s husband] can choose not to contact Mr Riyanto’s family in Indonesia should they return. I do not find that these circumstances are compelling.”

2. Clearly, in light of this statement, the delegate must be taken to have understood the harm that Ms Andrayani claimed to fear if she were to return to Indonesia. At best, the applicant’s claim is that the delegate did not accept that her son’s situation was such as to compel the waiver of the condition. The delegate’s finding was open to her in the circumstances. The reasoning put to the delegate, and as accepted, does not reveal error.

3. The second ground cannot be said to arise from the circumstances of the delegate’s decision not to waive condition 8503. In her application for a waiver, Ms Andrayani provided the following reasons (at CB 1):

   “Please waive my 8503 because my circumstances have changed. My husband Heri & I were blessed with the birth of our lovely son Geo who was born on 11 May 2010 (our son is Australian born). I wish to lodge an application for him to keep him in Australia because my husband’s family will harm the child as he is Christian.

   I refuse to circumcise him such will not be accepted by our community & family in Indonesia.

   My husband does not have 8503 condition. Only my self.

   I ask your department to understand my compelling reasons to stay in Australia with my husband & newly born son.”

4. The circumstances that the applicant claims the delegate failed to consider were not raised by her in seeking the condition waiver. If there were other circumstances to be put forward, then the applicant should have done so. The delegate dealt with all that was put before her. No jurisdictional error is revealed in these circumstances.

5. Further, in considering whether Ms Andrayani’s change in circumstances had been outside of her control, the departmental officer indicated that “marriage, pregnancy and subsequent birth of a child are naturally occurring events in any relationship between a man and a woman. These circumstances are within Ms Andrayani’s control” (CB 14). The applicant’s marriage was deemed not to be a circumstance beyond her control for the purposes of reg.2.05(4). This was also open to the delegate on what was before her.

6. These additional circumstances to which the applicant alludes in ground two, to the extent that they make assertions beyond the circumstances relevant to the birth of the son, were not raised by the applicant in seeking the waiver of the relevant condition. If there were other circumstances to be put forward, then the applicant should have done so.

7. Here, the delegate dealt with all that had been put before her in relation to this request to waive the relevant condition. No jurisdictional error is revealed in these circumstances.

8. In all probability, it may be that the applicant now, in ground two, is referring to matters that were put before the Minister’s department in relation to her, or perhaps her husband’s, protection visa application. But it would have been inappropriate for the delegate to have had regard to any such other information given that such information, if indeed it was put in any protection visa application, was not put before the delegate for the purposes of the request to waive the relevant condition.

9. To the extent that the submission to the delegate makes reference to these protection visa applications, I cannot see that, when the submission, and consequently the delegate, came to consider the relevant regulatory test, any such other extraneous matters were taken into account.

10. In short, both the author of the submission and the delegate dealt with the circumstances as described by the applicant herself for the purposes of requesting the waiver. Again, no error is revealed in these circumstances. The applicant’s second ground is not made out.

11. The third ground alleges that the delegate erred as she “did not understand what compelling is”. The proper construction to be given to the phrase “compelling and compassionate circumstance” was considered by O’Loughlin J in Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590 at [21]. Justice O’Loughlin considered that:

    “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.”

12. See also Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 360 per Marshall J at [12], as referred to in the respondent’s written submissions.

13. In Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570 at [25], Kenny J went further:

    “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.”

14. Whichever approach is to be preferred, it is apparent that the delegate’s assessment of Ms Andrayani’s circumstances (as set out at [18] above) did not result from a misunderstanding or misconstruction of “compelling” circumstances for the purposes of reg.2.05(4). No error is revealed in this regard.

15. Before the Court today the applicant read from a written submission in English. She complained that the Minister’s department did not understand her problem and she made reference, again, to the circumstances of her son’s birth, his Christianity. She asserted that the delegate made an error of law because the department did not understand that the birth of her child was special and that the circumstances arising from the birth of her son were different from the circumstances as they existed before her marriage and subsequent birth of her child.

16. As I sought to explain to the applicant today, however, it is not sufficient for the purposes of reg.2.05(4) that the circumstances which have developed are simply different, but the circumstances must be such as to be circumstances over which the applicant had no control.

17. In short, on what has been put before the Court, both the officer preparing the submission and, consequently the delegate dealt with all of the circumstances as put forward by the applicant for the purposes of her request for a waiver. They understood and properly applied those circumstances to the relevant regulatory test as to whether those circumstances were compelling and compassionate, as those terms are understood at law.

18. I am satisfied on what is before me, that the officer in the Minister’s department who prepared the submission, and the delegate, properly understood and applied the relevant regulatory test.

Conclusion

1. For the applicant to succeed before the Court today, at the very least, the Court would need to find jurisdictional error on the part of the relevant decision maker in this case. I cannot see any such error, Therefore I will make an order dismissing the application, as amended, before the Court.

Costs

1. It is appropriate that an order for costs be made in this matter. It is, of course, the applicant’s right to come to this Court. But, as with the exercise of many rights, there are quite often consequences. The consequence today is that, having been unsuccessful before the Court, the applicant is then open to the distinct probability that the Minister, as the successful party, would seek to recover some of his legal costs. Nothing has been put before the Court today to argue against the making of such an order in the normal course of events.

2. As to the amount, the amount sought is $3,900. I note that, in matters of this type, in the relevant Schedule to the Rules of this Court, an amount far in excess could have been sought. But in this case, I am satisfied that the Minister has followed the usual course of seeking to recover the costs on a party/party basis. I am otherwise satisfied that, notwithstanding that to some people such an amount of money is a large amount of money, that it is nonetheless a reasonable amount, having regard to the work that has been done in responding to the application made by the applicant.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  16 December 2010