Atua v Minister for Immigration
[2012] FMCA 301
•17 April 2012
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 care for her aunt. Further, that the applicant’s uncle was unwell and incapable of providing assistance to his wife (CB 13).
2)A medical report from Dr Janette Davis in relation to the applicant’s uncle, which was prepared for the purpose of a Centrelink application. The document stated that the uncle suffered from chronic renal failure and diabetes and was on dialysis three days a week (CB 59).
Both Dr Tomlins and Dr Davis were interviewed by an officer of the Minister’s department (“the Department”). Minutes of those interviews, based on the officer’s case notes, were provided to the Minister’s delegate (CB 61 to CB 62; CB 66 and CB 76).
Subsequent to those interviews, on 14 September 2011, the applicant was contacted by an officer of the Department and advised that both Dr Tomlins and Dr Davis had stated that her aunt’s and uncle’s medical conditions had been ongoing for a number of years. Most importantly, their medical conditions had been in existence prior to the grant of tourist visas to the applicant and her son (CB 61 and CB 66).
Relevant Legislation
Section 41 of the Act states that the Migration Regulations 1994 (Cth) (“the Regulations”) may provide that visas, or classes of visas, are subject to conditions. Sub-Regulations 2.05(1), (2) and (3) and Sch.8 (Item 8503) of the Regulations provide that a “no further stay condition” may be imposed on the type of visa granted to the applicants.
It was not in dispute between the parties that such a visa condition had been validly imposed on the visas granted to both the applicant and her son.
Under s.41(2A) of the Act, the Minister’s power to waive a condition imposed on a visa is discretionary. Regulation 2.05(4) prescribes the circumstances which are necessary to enliven the respondent Minister’s power to waive the visa condition (reproduced at CB 61 to CB 62). Only if those circumstances are in existence, and r.2.05(4)(a),(b) and (c) of the Regulations are met, is the Minister empowered to exercise his discretion under s.41(2A) of the Act. Those circumstances are:
“…
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.
… ”
The Delegate’s Decision
The applicants were notified, by letter dated 15 September 2011, that the Minister’s delegate had refused to waive the no further stay conditions attached to the applicants’ visas (CB 63). The delegate found that while the circumstances were compassionate (CB 68), they were not compelling as the aunt and uncle’s medical conditions had been in existence for a number of years. Further, that the relevant circumstances had not arisen since the grant of the applicants’ tourist visas. While the aunt and uncle’s medical condition was beyond the applicant’s control, her decision to remain in Australia was not. Nor was her decision to remain in Australia a major change in her circumstances.
I should just note that the delegate was not obliged by the Act to provide a full statement of reasons for refusing the request to waive the no further stay conditions. I accept the Minister’s submissions however that the Court can have regard to any relevant surrounding circumstances, including the submissions to the delegate (SZGBR v Minister for Immigration [2005] FMCA 824 at [8] and [12]).
Application to the Court
The application to the Court sought to invoke this Court’s jurisdiction pursuant to s.476 of the Act. That section provides that this Court has the same original jurisdiction as the High Court under s.75(v) of the Australian Constitution in relation to “migration decisions”.
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.
Before the Court
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.
At the hearing it became apparent that the documents presented to the Court by way of facsimile transmission had not been provided to the respondent. A short adjournment was granted to allow Mr Leerdam an opportunity to inspect the documents.
Leave was granted for the applicant’s affidavit of 29 November 2011 to be filed in Court. Subsequently, the affidavit was admitted into evidence, save for paragraph 2. The Minister’s objection to the documents presented to the Court on 28 November 2011, being the aunt’s letter and the medical certificate from Dr Davis, was upheld and the documents not admitted into evidence. Both documents post-dated the date of the delegate’s decision. Further they spoke essentially of events that also post-dated the decision. As such, they were not relevant to the issue before the Court.
The question in this case is whether the decision of the Minister’s delegate not to waive the no further stay conditions attached to the applicants’ visas was affected by jurisdictional error.
The applicants do not assert any such error on the part of the Minister’s delegate. Rather the applicants seek merits review. As I explained to the applicant at the first Court date, this Court has no power to substitute its own findings of fact, and its own decision, for those of the Minister’s delegate.
At that time I urged the applicant to seek legal advice as to the nature of these proceedings. Despite this she has presented various documents that go to the merits of her claim for the waiver of the relevant conditions, rather than any assertion of legal error. The applicant and her aunt did explain that they had approached the Legal Aid Commission of New South Wales, but apparently a grant of aid was refused. It appears that they also sought to speak to other lawyers to whom they were referred.
Consideration
The delegate’s decision that the no further stay conditions not be waived was based on the following, as set out in the Respondent’s written submissions:
“9.1The circumstances stated in the waiver application had not arisen since the visa grant. The medical conditions of the applicant’s aunt and uncle had been in existence for many years prior to her visa grant and arrival in Australia.
9.2The circumstances did not result in a major change in the applicant’s circumstances. In addressing this factor, the minutes state that the applicant’s decision to remain in Australia and care for her aunt and uncle did not constitute a major change to her circumstances.
9.3The circumstances were not outside the applicant’s control. The minute acknowledged that the medical conditions of the aunt and uncle were beyond the applicant’s control but stated that her decision to remain in Australia was not.
9.4The circumstances were not compelling. The medical conditions of the aunt and uncle had been ongoing for a number of years and their doctor had advised that they had been managing their conditions for a number of years. There was no evidence that they could not continue to carry out their day to day activities without the applicant’s assistance.
9.4The circumstances were compassionate, in light of the fact that the applicant was attached to her aunt and uncle and would like to remain with them and care for them on a full time basis.”
[Emphasis in the original.]
The delegate determined that the applicants’ circumstances did not satisfy the requirements of r.2.05(4) of the Regulations, and therefore the no further stay conditions were not waived under s.41(2A) of the Act.
As the Minister submits, his power to waive this condition under s.41(2A) is discretionary. Regulation 2.05(4) prescribes the circumstances which must exist to waive the no further stay condition (Verlicia v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1529 at [7] per Moore J). That is, while a discretion to waive exists, such discretion may only be exercised in favour of the applicants if the Minister, or his delegate, is of the view that the circumstances in r.2.05(4)(a), (b) and (c) exist. The decision maker was of the view, and found that, these did not all exist. This finding was open to the decision maker on what was before him. No legal error is apparent.
In submissions Mr Leerdam referred the Court to 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, and in particular at [8] per Dowsett J, as to the approach that should be taken by this Court:
“In subreg 2.05(4), the word ‘circumstances’ is used with three different meanings. In the introductory part of the sub-regulation, the word is used to describe collectively the conditions which will enliven the first respondent's power to waive a relevant condition. The word is then used in par 2.05(4)(a) to describe ‘compelling and compassionate’ factors which must have developed since the issue of the visa. In subpar 2.05(4)(a)(ii), the word is used to describe the whole of the relevant person’s position, presumably to the extent that it is relevant to the issue of a visa. The ‘compelling and compassionate circumstances’ must themselves result in a ‘major change’ to the person’s ‘overall’ circumstances. This requirement seems to contemplate a comparison of the relevant person’s position prior to the issue of the visa with his or her position as a result of the ‘compelling and compassionate’ circumstances.”
I agree with Mr Leerdam that the applicant’s subjective state of mind as to her change of understanding on arrival in Australia of her aunt’s and uncle’s circumstances does not assist or address the objective question posed in the relevant regulatory scheme. That question was relevantly whether compelling and compassionate factors had developed since the granting of the visa. The medical evidence before the decision maker was that the medical conditions of both the applicant’s aunt and uncle had been ongoing for some time and had been evident prior to the grant of the visas and the applicants’ arrival in Australia.
The evidence before the Court, relevantly, is that an officer of the Department spoke to the two doctors (CB 60 to CB 62 for the record of the conversation). A conversation then ensued with the applicant and her aunt: “In a phone conversation with Departmental officer Koula Intervalo, Ms Atua was advised of the comments of Dr Tomlin and Dr Davis” (CB 68).
In essence both the applicant and her aunt understood that the evidence was that the medical conditions had existed for many years and that arrangements had already been put in place for their care. The aunt’s and the applicant’s position was simply that there was now a preference for the applicant to provide this care.
While the issue was not raised by the applicant, the Minister also submitted that there was no failure to afford procedural fairness to the applicants in the circumstances.
First, the content of the natural justice requirement it to be formulated, and arises, from the facts and circumstances of the case (Kioa v West [1985] HCA 81; (1985) 159 CLR 550).
Second, while the delegate had regard to two medical reports (Dr Tomlins and Dr Davis) which were adverse to the applicants, the applicants’ were advised of this and given the opportunity to respond.
Dr Tomlins was interviewed on 7 September 2011 (CB 61 to CB 62). His advice was that the aunt’s medical condition (poor eyesight) had been ongoing for five years, however she managed with the help of family and the community.
Dr Davis was interviewed on 14 September 2011 (CB 62). She confirmed that the uncle’s condition (renal failure and diabetes) had been ongoing for quite some time. She also advised that the couple had two daughters in Australia, although the relationship may have been strained.
The applicant was advised of the doctors’ reports on 14 September 2011 (CB 61 and CB 66). In particular, that the respective medical conditions had been in existence for some years, but relevantly before the applicants’ arrival in Australia. The applicant was also told of the view that the medical conditions had not changed (CB 61). See also at CB 66.6:
“On 14 September 2011, Departmental Officer Koula Intervalo advised Ms Tagataese Atua about the conversations with both Dr Tomlin and Dr Davis which confirmed that the circumstances of her Aunt and Uncle have been ongoing for many years and have not changed since her visa was granted. (this information was verbally relayed to Ms Atua with the assistance of her Aunt Ms Leitu Va’a due to her lack of English)”
The notification is also recorded in a submission to the delegate by the officer who appears to have had carriage of the matter. The aunt’s response is recorded (CB 68.4):
“In a phone conversation with the Department officer Koula Intervalo, Ms Atua was advised of the comments from Dr Tomlin and Dr Davis. In response, Ms Leitu stated that her niece is the most appropriate person to care for her as she is a family member and not a stranger. Ms Leitu advised that she does have other family members, including two daughters, but did not clarify why these family members could not assist her and her husband if the need arose.”
The important issue of the aunt and uncle’s capacity to manage their respective conditions was within the applicant’s knowledge. She had made submissions on that point.
I am satisfied that the applicant, and for that matter her aunt (although it is the applicant to whom the natural justice obligation is owed), was alerted to the advice from the two doctors and was given the opportunity to explain. Importantly, there was nothing from the applicant to dispute that she had been put on notice of the doctors’ advice.
In short the applicant was aware of the case against her and was given a reasonable opportunity to respond.
I should just note that as to the second applicant, a minor, his mother acted on his behalf as his common law guardian before the delegate (SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 at [47] and 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). Therefore the procedural fairness obligations towards him were discharged through his mother.
Conclusion
As no jurisdictional error is apparent, the application should be dismissed. I will make an order accordingly.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 17 April 2012