DELIANOVA v Minister for Immigration - [2005] FMCA 1275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DELIANOVA v MINISTER FOR IMMIGRATION

[2005] FMCA 1275

MIGRATION – Review of decision of delegate refusing to waive Condition 8503 – material annexed to submission relevant – statutory declaration referred to specific grounds – failure to address grounds properly raised – jurisdictional error – whether statement by delegate of considering “all the information before me” sufficient.

Migration Act 1958, s.48

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) FCAFC 263
Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 (10 July 2000)
Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 116
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209
Applicant A376/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1498

Applicant:

LENY DELIANOVA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1507 of 2004

Judgment of:

McInnis FM

Hearing date:

25 August 2005

Delivered at:

Melbourne

Delivered on:

25 August 2005

REPRESENTATION

Counsel for the Applicant:

Ms F. Ryan

Solicitors for the Applicant:

Joseph Italiano & Associates

Counsel for the Respondent:

Mr R. Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

An order be granted by nature of certiorari quashing or setting aside the decision of the Respondent's delegate dated 5 November 2004 refusing to waive Condition 8503 pursuant to Regulation 205 of the Migration Regulations.
The Application is remitted to the Respondent and/or a delegate of the Respondent for determination according to law.
The Respondent shall pay the Applicant's costs of the Application.
I direct that the reasons I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1507 of 2004

LENY DELIANOVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for judicial review of a decision of a delegate of the respondent dated 5 November 2004 refusing to waive condition 8503 pursuant to regulation 205 of the Migration Regulations.
The applicant seeks various orders including an order in the nature of certiorari quashing the delegate's decision, and further, seeks an order that the matter be remitted to the respondent for determination according to law.
The parties are both represented before this court and have relied upon contentions of fact and law. The applicant relies upon contentions filed 27 July 2005 and the respondent contentions of fact and law filed on 19 August 2005.
The factual background in relation to this application does not seem to be in issue. The applicant filed the application for judicial review of the delegate's decision on 23 November 2004.
The applicant is a citizen of Indonesia. She has been in a relationship with an Australian permanent resident since 1996. They have a son who is seven years of age. On 15 July 2000 the applicant entered Australia on a three-month visitor visa. She was then accompanied by her son. The visas held by the applicant and her son were subject to condition 8503. The applicant applied for a protection visa in March 2002 and on 31 July 2002 a delegate of the respondent refused to grant the protection visa. The child was included in the application as a dependent. Merit review of that delegate's decision was not sought.
On 18 October 2002 the applicant lodged with the department a request that in relation to her visa condition 8503 be waived. Subsequently, the applicant's spouse lodged a detailed written submission in support of the waiver request. On 26 November 2002 a delegate of the respondent decided not to waive condition 8503 in respect of the applicant's visa. On 5 October 2004 the applicant's representative lodged with the department a request for the waiver of condition 8503 in respect of the visa of the applicant's son. A delegate of the respondent subsequently decided to waive condition 8503 in respect of his visa.
On 4 November 2004 the applicant's representative lodged with the department a further request for the waiver of condition 8503 and this time in respect of the applicant's visa. (see court book page 46) In a decision dated 5 November 2004 the respondent's delegate refused to waive condition 8503. The delegate found that the circumstances described by the applicant in her request for waiver dated 4 November 2004 did not satisfy subregulation 2.054 of the Migration Regulations. The relevant legislation in this application, the parties have both referred to the relevant legislation.

Relevant Legislation

In my view, the respondent in the contentions of fact and law has accurately and appropriately set out the relevant legislation as follows:-
“3.RELEVANT LEGISLATION
3.1Subsection 41(1) of the Migration Act 1958 (“Act”) states that the Regulations may provide that visas are subject to specified conditions.
3.2Subsection 41(3) provides that, in addition to any conditions specified by subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations.
3.3Sub-regulations 2.05(1) and (2) of the Regulations state that:
(1)For the purposes of subsection 41(1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.
(2)For the purposes of subsection 41(3) of the Act (which deals with conditions that may be imposed on a visa), the conditions that the Minister may impose on a visa are the conditions (if any) referred to as being conditions that may be imposed in the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.
3.4The conditions which apply to or may be imposed on a visitor are set out in Division 676.6 of Part 676 of Schedule 2 to the Regulations. Condition 8503 is a condition that may be imposed on a visitor visa.
3.5Condition 8503 is set out in Schedule 8 to the Regulations and states that:
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.
3.6Subsection 41(2A) of the Act provides that, in prescribed circumstances, the Minister may waive visa conditions such as Condition 8503.
3.7Those prescribed circumstances are set out in sub-regulation 2.05(4) of the Regulations, which states 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) 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.”
Of significance in the present case, in my view, are the prescribed circumstances set out in subregulation 2.054 which specifically provide where the Minister may waive the condition and include that since the person was granted the visa that was subject to the condition ‘compelling and compassionate circumstances’ have developed over which the person had no control and that resulted in a major change to the person's circumstances.

Discussion

In the application before this court the applicant after reciting the relevant legislation claims that the delegate has committed jurisdictional error and it seems to me that a significant part of the material relied upon by the applicant is that claims for waiver properly placed before the delegate were not considered by the delegate.
In order to understand that central proposition advanced for and on behalf of the applicant it is, in my view, appropriate to note that in the submissions made for and on behalf of the applicant by correspondence dated 4 November 2004 where it is stated:-
“This submission constitutes a formal request to you in writing seeking a waiver of that condition pursuant to Regulation 2.054(2) so that the applicant can apply for a Partner (Temporary) (Class UK) visa, subclass 820 visa pursuant to section 46 of the Migration Act and Regulation 2.12 of the Regulations.”
A number of submissions are made and documents attached which are claimed to be documents submitted in support of the application.
In the body of the submission the following paragraph appears (page 49 Court Book):
“The applicant is a former resident of Jakarta, Indonesia, and lived with her dependent son - who was born in Indonesia - and spouse, Donato Marchionno, immediately preceding their visit to Australia in July 2000. The family unit was desperate to leave Indonesia because of the political uncertainty and the attendant racial and religious strife extant at the time of their departure. The political situation has deteriorated since their arrival particularly given the recent bombing of the Australian embassy in Jakarta which resulted, inter alia, in serious injury to an Australian citizen child, Manuela Musu, who was recently treated in a Singaporean hospital at Australian taxpayers' expense then repatriated to her step-father in Italy. The applicant's Australian resident spouse has a well-founded fear for the welfare, safety and security of the applicant. This view is vindicated by the Australian Department of Foreign Affairs, which has urged visitors to avoid any non-essential travel in Indonesia. The Government's website at smarttraveller.com.au warns of particular risks in Jakarta. The deterioration in the political climate and as a corollary personal insecurity has created a well-founded fear and apprehensiveness on the part of the applicant father for her personal security, safety, health and welfare. The close personal ties she has with Australia through her Australian resident spouse and her son who is about to be granted a child visa should be primary considerations in the exercise of your discretion.
These recent events in Indonesia are beyond the applicant's control; have developed since or are substantially different since the visa was first granted in Jakarta in July 2000; constitute compelling and compassionate circumstances and have resulted in a major change to the applicant's circumstances justifying your discretion to exercise the waiver of condition 8503 so that the applicant can lodge a spouse visa application in Australia.”
That extract which I have included in this judgment provides, in brief summary form, essential matters raised for and on behalf of the applicant. However, in my view, the documentation claimed to be in support of the application must of necessity include the attachments set out at page 52 of the court book. In my view, for present purposes the submissions and the attachments can all properly be described for these purposes as material relied upon by the applicant. Part of that material includes a statutory declaration declared by the applicant's spouse on 4 October 2004, court book pages 36-37. In the declaration it is declared in part as follows:
“I am fearful for my spouse's and son's security should they be compelled to return to Indonesia. In the event that my son were to attend a private international school he is at risk of being kidnapped. Consequently a high level of care and supervision would be required. Owing to the endemic corruption we can never be secure for our personal safety with maids, guards or others, including the police force, entrusted to provide personal services, security or public protection. Given our security concerns we lived for at least 6 months at the Kartika Chandra Hotel, Jakarta as a family unit in 1996. My spouse is a Christian, a businesswoman and ethnically part-Chinese. Our family unit was forced to leave Indonesia with my son and spouse obtaining a tourist visa in July 2000 owing to persistent rioting targeted at Christians, foreigners and Chinese. Our main concern was our personal safety and particularly that of my son. The situation in Indonesia has deteriorated since our departure as evidenced by the bombing of the Australian Embassy necessitating the closing of the Immigration post and continued warnings by Foreign Affairs that non-essential travel to Indonesia by Australians should be deferred.”
It is also relevant to note that in the material before this court travel advice for Indonesia is included (Court Book p.41). That travel advice issued Thursday, 30 September 2004 claims to be advice current for Monday, 4 October 2004. The advice refers to what is described as a potential risk to foreigners and in particular advises Australian to defer non-essential travel to Indonesia. It states in part:
“… We continue to receive reports that terrorists in the region are planning attacks against a range of targets. These attacks could occur at any time, anywhere in Indonesia and could be directed against any locations known to be frequented by foreigners. …”
Specifically, reference is made in the document to the following:
“… Terrorists attacks could occur at any time, anywhere in Indonesia and could be directed against any locations known to be frequented by foreigners. Examples of possible terrorist targets include international hotels, clubs, restaurants (including international fast-food outlets), bars, embassies, international schools, expatriate housing compounds, churches and other places of worship, shopping centres, outdoor recreation events, tourist areas and transport hubs or identifiably western business and interests. Particular caution should be exercised in Jakarta including the central business and embassy districts, in other metropolitan and tourist centres, Java and Sumatra, and around premises and symbols associated with Indonesian Government.”

Relevant law

Both parties have referred me to a number of significant authorities relating to the review process, and although the authorities largely relate to the process of tribunals and indeed many of the authorities relate to issues concerning the judicial review of decisions made by the Refugee Review Tribunal where decisions of a delegate have been affirmed in relation to protection visas, it is my view that the principles referred to by both parties are relevant to the matters to be considered by this court. Of significance amongst the authorities to which I have been referred is the Full Court decision of the Federal Court of Australia in the matter NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) FCAFC 263 where, relevantly, the court states the following:
“58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
60 In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
…
68 Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”

Both parties otherwise referred to other decisions, but in my view that decision of the Full Court of the Federal Court is perhaps the most significant. I recognise, however, that this court ought to take into account other principles including those referred to by Hill J in Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 (10 July 2000) where His Honour states at paragraph 17 the following:
“17.A difficulty that submission faces is that it comes perilously close to seeking the Court to review the decision-maker's decision on the merits. In saying this I accept, as counsel for the Minister submits, that the reasons of a decision-maker should be read beneficially, not by a mind attuned to error, and in the understanding that it is for the decision‑maker, in the present case, to be satisfied whether compelling and compassionate circumstances did in fact develop after the grant of the visa subject to condition.”
Further, I note reference made by counsel for the respondent to the decision of Allsop J in the matter of Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 where His Honour at paragraph 26 states the following:
26.There would not appear to be any requirements in the Act that written reasons for a decision not to waive a visa condition be given, nor that any such reasons set out all the material to which regard has been had. Having looked at the court book and heard counsel and examined once again the reasons in the letter, it does not appear to me to be able to be said that this delegate failed to turn his mind to the material placed before him by the applicant in terms of a consideration of the decision.”
Those extracts from the relevant decisions to which I have referred, in my view, sufficiently set out principles which should apply in matters of this kind. For the sake of completeness, however, it is also relevant to note and apply the decision of the Full Court of the Federal Court in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 116 reported in 113 FCR 396 where at page 423 Allsop J states the following at line 79:
“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iver v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 they do not, in my view, encompass, a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements of integers of her claim.
The applicant has submitted in the present case, having regard to the material placed before the delegate, that the delegate has effectively failed to consider a matter relevant to the application and otherwise did not effectively address the claims made by the applicant. In particular, those elements are the religion, the business profile and the ethnicity of the applicant.
In considering the primary ground relied upon by the applicant, it is appropriate to refer to the delegate's decision, and in particular, to consider the summary of the claim made for and on behalf of the applicant. In the delegate's letter dated 5 November 2004, which is the decision sought to be reviewed before this court, the delegate refers to the statement of submissions provided by the applicant's agent. Specifically, the delegate states:
“Your agent has put forward a statement of submissions which runs to several pages and cites numerous legal references, but

I consider that its main points may be summarised as follows:
- Following my decision to waive the ‘no further stay’ condition on the visa of your son, Giancarlo Marchionno, and his consequent application for a Child visa, you would be forced to separate from him for an indeterminate period while the Spouse migration application was processed overseas unless the ‘no further stay’ condition is waived. In support of this argument, your agent has pointed out that Australia is a signatory to UN Conventions recognising the rights of children and families and has offered his opinion that ‘there is no public benefit in compelling (you) to return to Indonesia’.
- Recent events in Indonesia demonstrate that the security situation in that country has deteriorated, particularly for those with links to Australia, like you. This is evidenced by official Australian government advice to avoid non-essential travel to that country.
- You should not be considered as subject to section 48 of the Migration Act, due to what your agent considers to have been defects in the process of deciding and notifying the decision on your application for a Protection Visa. Your agent has also argued that it would be incorrect for me to take into account whether or not you are subject to s48 in deciding your request for waiver of condition 8503.”
The delegate then proceeds to deal with those issues as summarised in order. After dealing with those issues and doing so in a manner which ultimately results in adverse conclusions, the delegate significantly states the following:
“Therefore, after considering all the information before me, my decision is that condition 8503 cannot be waived in this case.”
The respondent has submitted that the matters sought to be raised in the statutory declaration and otherwise in the submissions concerning religion, ethnicity and business profile, as I understand it, should not be regarded as relevant to the matter to be considered by the delegate. Reference has been made to the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at paragraphs 73 to 74 as follows:-
“73.It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin:
"The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' 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 so doing, 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, for the repository alone."
74.This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”
It is argued that when considering the issue of whether or not there are compelling and compassionate circumstances which have developed that those matters sought to be relied upon as part of the alleged material before the delegate are not relevant to the decision-making process of the delegate. In the alternative, as I understand the submissions made for and on behalf of the respondent, it is sought to be argued that the reference that I have just made to the delegate's correspondence where the delegate refers to considering "all the information before me" this court applying the relevant authorities to which reference was made earlier should conclude that the delegate has indeed considered, amongst other things, if it be relevant those matters raised in the statutory declaration referred to earlier in this judgment.
It is noted that apart from this ground which I have referred to as what might be described as significant ground, other grounds have also sought to be raised for and on behalf of the applicant. They include a reference to a denial of procedural fairness and otherwise include a reference to the delegate failing to take into account an issue that the applicant had no choice but to leave her son in Australia because at the time of the application for a waiver in respect of her son she did not have a visa and she believed she was subject to s.48 of the Migration Act 1958.
The issue of procedural fairness as sought to be argued by the applicant appears in the contentions in very brief terms, namely that there had been a denial of procedural fairness or indeed a failure to accord procedural fairness by bringing to the applicant's attention the fact that the delegate proposed to rely on submissions in an earlier application adversely to her interests. To understand those other grounds, and in particular, to understand the way in which the applicant relies upon the failure to take into account the fact that the applicant had no choice but to leave her son in Australia because at the time the application for a waiver she did not have a visa and believed she was subject to s.48 of the Act, one needs to appreciate that the delegate made reference to that issue, and in particular, states in considering the issues that were summarised the following:
“If you were then willing and able to leave him in the care of his father while your spouse visa application was being processed,

I do not see why you cannot still do so.”
In my view, the arguments advanced for and on behalf of the applicant in relation to both that issue concerning a failure to take into account what is described as there being no choice by the applicant, together with the issue of a claimed denial of procedural fairness, cannot succeed. I accept the submissions made for and on behalf of the respondent in relation to both issues. In my view, there is simply little or no evidence to support the conclusion now sought to be advanced as a matter of fact by the applicant in relation to her having no choice. In my view, in the absence of that information the delegate then proceeded to make a decision reasonably open on the material then before the delegate in relation to that issue.
In relation to the denial of procedural fairness, the respondent's submissions concerning that issue are correct. There is no requirement, in my view, as a matter of law for the delegate in these circumstances to convey to the applicant that there is an intention to act on information in circumstances where the applicant ought to be aware of that information. I accept and apply the principles sets out in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [22] and note in passing the authority referred to by the respondent of Applicant A376/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1498 at [34] to [39].
Hence, on those two grounds the application before this court should fail. That leaves for consideration the issue which I have described as a central issue raised for and on behalf of the applicant. As I indicated earlier in this judgment, I am satisfied and find that the material which was annexed to the submissions made on behalf of the applicant by the correspondence from the applicant's representative forms part of the material before the delegate. In my view, that material annexed to the letter dated 4 November 2004 clearly includes the attachments. Those attachments, in my view, clearly include the statutory declaration declared 4 October 2004, an extract of which I referred to earlier in this judgment.
Moreover, I am satisfied that not only is that statutory declaration material to be considered by the delegate, in my view, it is relevant material. When the delegate is required to consider whether or not compelling and compassionate circumstances have developed since the grant of the visa, then in my view, in the context of this application the circumstances specifically relate to matters of religion and ethnicity are clearly relevant on the material before me.
I accept for the present purposes that it may well be relevant to also consider the business profile of an applicant. Indeed it is arguable that there may well be a combination of those factors which may also, having regard to the travel warnings issued by the government and other material properly placed before the delegate, could become relevant material to be properly considered in discharging the delegate's responsibilities under the relevant subregulation 2054 of the Migration Regulations.
I accept, as submitted by the respondent, that the delegate has in the circumstances made reference to what the delegate describes as "all the information before me". However, I do not accept that phrase, which

I would describe as a "catch-all" phrase, in this instance provides any or any proper basis to conclude that the delegate has indeed properly turned his mind to those matters specifically, and in my view, squarely raised both in the submissions, the extract of which appears earlier in this judgment, and the statutory declaration.
Instead, in my view, on a proper reading of the delegate's decision dated 5 November 2004 it appears to me that the delegate has attempted to summarise the submissions but has done so by neglecting to consider and address specific issues set out in the attached statutory declaration. The delegate then deals seriatim with those issues as defined by him, but neglects, in my view, crucial and relevant material set out in the statutory declaration and otherwise set out in the extract from the submissions which I have noted earlier in this judgment.
Applying the relevant authorities to which I have referred the delegate was required to consider that material. This is not a case, in my view, where it could properly be stated that by simply referring to all the information the delegate has discharged his obligations. It is also not a case where it could be suggested that there has been merely a failure to refer to each and every piece of evidence and every contention made by an applicant. It is quite clear applying the reasoning of Allsop J in the decision of ‘Paul’ that it is not a requirement for a delegate to mention every item that might be raised for and on behalf of an applicant. However, it is equally apparent to me that in the present case the matters raised by the applicant, that is, the issues of religion, ethnicity and business profile, can properly be regarded as an element or integer of the claim put forward by the applicant. The claim has been put forward, in my view, in clear terms.
I am satisfied that there is indeed an error, a jurisdictional error, in that the relevant considerations that I have identified have not been addressed.
It was argued for and on behalf of the respondent that in considering the issues raised, that is, the claims made, and in particular, the claims referred to in the statutory declaration, that emphasis should be given to that material which refers to developments by which I include reference to deterioration, as being restricted to security issues arising from the bombing of the Australian embassy. In my view, that contention is misconceived. A proper reading of the statutory declaration and the extract, which is set out earlier in this judgment, clearly links the issues of ethnicity, religion and business profile to what then is described as "the situation in Indonesia has deteriorated since our departure". For the author to then go on to recite as part of the evidence the bombing of the Australian embassy does no more, in my view, than to provide an example of the situation which has deteriorated.
It does not and should not on a proper reading be taken to require the delegate to read down that assertion or that claim of difficulties which have occurred, which include persistent rioting targeted at Christians, foreigners and Chinese. It is that situation which I take the author to refer to as being one which has deteriorated since departure. To then seek to narrow the claim in the manner advanced for and on behalf of the respondent is to distort the claim and unnecessarily and inappropriately narrow it it an issue of security.
In my view, the claim was properly raised and was before the delegate as part of the material, albeit annexed to the submissions. Material of that kind ought properly be considered where it is relevant to the task to be undertaken by the delegate. That material for the reasons given is clearly relevant to the task required to be performed by the delegate when considering whether or not subregulation 2.044 of the regulations applies, and in particular, whether or not the compelling and compassionate circumstances have developed since the grant of the visa and the other matters required to be considered by the delegate in this application.
It follows therefore that for the reasons given that the orders sought by the applicant should be granted.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 25 August 2005