Atua v Minister for Immigration - [2012] FMCA 301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATUA & ANOR v MINISTER FOR IMMIGRATION

[2012] FMCA 301

MIGRATION – Review of the decision of the Minister’s delegate to refuse to waive no further stay conditions – procedural fairness afforded – application dismissed.

Australian Constitution, s.75
Migration Act 1958 (Cth), ss.41, 476
Migration Regulations 1994 (Cth), r.2.05, Sch. 8

SZGBR v Minister for Immigration [2005] FMCA 824
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
Verlicia v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1529
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172
Re Woolley and Anor; Ex parte Applicants M276/2003(by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369

First Applicant:

TAGATAESE ATUA

Second Applicant:

DAVID ATUA

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2180 of 2011

Judgment of:

Nicholls FM

Hearing date:

10 April 2012

Date of Last Submission:

10 April 2012

Delivered at:

Sydney

Delivered on:

17 April 2012

REPRESENTATION

The Applicants:

First Named Applicant In Person

Appearing for the Respondent:

Mr L Leerdam

Solicitors for the Respondent:

DLA Piper

ORDERS

The application made on 28 September 2011 is dismissed.
The first named applicant pay the respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2180 of 2011

TAGATAESE ATUA

First Applicant

DAVID ATUA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This is an application made on 28 September 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking relief against the decision of the respondent Minister’s delegate, dated 15 September 2011, to refuse to waive the 8503 condition (“no further stay condition”) imposed upon the applicants’ tourist visas.

Background

The applicants’ (Ms Tagataese Atua and David Atua) are citizens of Samoa and arrived in Australia on 30 July 2011 on subclass 676 tourist visas (“tourist visas”) (see Court Book – “CB” – CB 1 and CB 65). The second named applicant is the son of the first named applicant (“the applicant’s son” and “the applicant” respectively) (CB 65).
The applicants’ had come to Australia to celebrate the birthday of a family member. Once in Australia the applicants’ requested that the no further stay conditions of their visas be waived (CB 1). The request was made on the basis that the applicant needed to remain in Australia to assist her aunt and uncle, both of whom were unwell. It was necessary for her son to remain with her given his age (ten years old) (CB 8).
In support of her application, the applicant submitted two medical reports:
1)A medical report from Dr Ron Tomlins, in which he stated that the applicant’s aunt was legally blind, unable to care for herself and that the applicant was capable of providing appropriate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 301
Decision Date: 17 April 2012

CaseChat Overview and Summary

Atua v Minister for Immigration is a case involving the applicants, who were seeking a waiver of the no further stay conditions on their visas. The matter was before the Court to challenge the decision of the Minister's delegate to not waive these conditions. The applicants argued for the waiver on compassionate grounds, citing the need to care for the applicants' aunt, who is in a medical condition requiring care. The Minister's delegate had previously decided against the waiver based on a submission from the relevant case officer.

The primary legal issue before the Court was whether the Minister's delegate's decision was affected by jurisdictional error. The applicants did not assert any jurisdictional error in their application; instead, they reiterated their request for the waiver of the no further stay conditions. The Court's task was to determine whether it had jurisdiction to review the decision under section 476 of the Migration Act 1958 (Cth), considering that the decision was a privative clause decision and not reviewable under Parts 5 or 7 of the Act unless vitiated by jurisdictional error.

The Court found that the Minister's delegate's decision was a privative clause decision, meaning it was not subject to judicial review unless it was affected by jurisdictional error. The applicants did not provide any grounds that indicated a jurisdictional error had occurred. The Court dismissed the application, finding no basis for it to intervene. The Court also ordered that the first named applicant pay the respondent's costs in the amount of $5,000.00.

Orders

Orders of the court

The application made on 28 September 2011 is dismissed.

The first named applicant pay the respondent’s costs set in the amount of $5,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 476 of the Act also provides that this Court has no jurisdiction in relation to, relevantly and amongst others, “a primary decision” (s.476(2)(a)). Section 476(4) provides:“ …(4) In this section:primary decision means a privative clause decision or purported privative clause decision:(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or(b) that would have been so reviewable if an application for such review had been made within a specified period.”[Emphasis in original.] The Minister’s written submissions outlines that (at [10]): “The decision of the RRT in the present case is a privative clause decision as defined by section 474(2) of the Act. Section 474 operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.” No issue was taken however with the exercise of this Court’s jurisdiction pursuant to s.476 of the Act. That is, the matter proceeded on the basis that it involved a migration decision that was not reviewable under Pt.5 or Pt.7 of the Act. The question therefore was whether the delegate’s decision not to waive the no further stay conditions attaching to the applicants’ visas was affected by jurisdictional error. However the application to the Court does not disclose, or even assert, any jurisdictional error. Rather, it reiterates the applicants’ request that the no further stay conditions of their visas be waived. The grounds of the application state:“1. Circumstance of compassionate reasons and the, 2. special need for the applicant to care for Mrs Leitu Va’a (Aunty) as her husband is no longer capable to provide care for her.” In addition, under the heading “Final orders sought by applicant/s”, an additional complaint is made, namely:“We refuse to accept the decision made by the delegates and would like to ask for a review.” The application to the Court described the relevant decision maker as “Koula P/N 4302” of the “Parramatta Office” (CB 73). There was however no dispute before the Court that the relevant decision was made by the Minister’s delegate (Mr K Crawford) (CB 79) on 15 September 2011, based on a submission received from the relevant case officer. The hearing before the Court proceeded on that basis. By facsimile transmission on 28 November 2011, the applicants provided to the Court:1)A letter from the applicant’s aunt in support of their application to have the no further stay conditions on their visas waived. 2)A medical certificate from Dr Davis in relation to the uncle’s medical condition. Further, on 30 November 2011, also by facsimile transmission, the applicants presented an affidavit, made by the applicant on 29 November 2011. At the final hearing the applicant appeared in person and was assisted by an interpreter in the Samoan language. She was appointed litigation guardian for her son. Mr L Leerdam appeared for the respondent. Leave was granted for the applicant’s aunt (Ms Leitu Va’a) to sit at the Bar Table to assist the applicant. The Court also heard submissions from Ms Va’a.

Ratio Decidendi

Legal Principle Established

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