Gayudan v Minister for Immigration - [2010] FMCA 233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAYUDAN v MINISTER FOR IMMIGRATION

[2010] FMCA 233

MIGRATION – Decision of delegate not to waive visa condition – consideration of Migration Regulations – Regulation 2.05(4) – what constitutes change in circumstances – alleged jurisdictional error by delegate in dealing with evidence.

Migration Regulations 1994, reg.2.05(4)

Craig v State of South Australia (1995) 184 CLR 163
Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant:

CLOUNDE GAYUDAN

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 1149 of 2009

Judgment of:

Burchardt FM

Hearing date:

26 February 2010

Date of Last Submission:

26 February 2010

Delivered at:

Melbourne

Delivered on:

9 April 2010

REPRESENTATION

Counsel for the Applicant:

Mr A. Krohn

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the Respondent:

Ms E. Latif

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

A writ of certiorari issue directed to the Respondent quashing the decision of the Respondent dated 18 August 2009.
A writ of mandamus issue directed to the Respondent requiring the Respondent to determine the application for review according to law.
The Respondent pay the Applicant’s costs fixed at $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1149 of 2009

CLOUNDE GAYUDAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the Philippines who entered Australia on 15 July 2009 on a TR676 visitor visa valid to 15 October 2009. That visa was subject to condition 8503, which relevantly prohibited the applicant from being granted a substantive visa while she remained in Australia.
On 4 August 2009 the applicant through her solicitor, a migration agent, requested the waiver of the condition and on 18 August 2009 a delegate of the Minister decided to refuse to waive it.
The applicant seeks relief against that decision on three grounds set out in her further amended application filed on 14 December 2009.
For the reasons that follow, I think that the applicant should have the relief she seeks.

The Relevant Facts

The relevant facts are not in dispute and the following history essentially reflects materials set out in the written submissions of the parties.
The applicant was granted a visitor visa on 29 June 2009. As stated already, she arrived in Australia on 15 July 2009. In my view, it is reasonable to assume that the purpose of her visit was to have a holiday.
It seemed common cause that the applicant was to visit her uncle,

Mr Antonio Kairuz, a man of some 87 years of age. Mr Kairuz was living with Robert Kairuz, a farmer and shire worker who is his nephew, together with Vivien Kairuz, likewise a niece of Antonio Kairuz, and another cousin of Vivien Kairuz, whose name is not – it seems to me – revealed by the materials.
From a medical report prepared on 23 July 2009 by Dr Jon Watson, gastroenterologist and physician (CB9), it appears that on 13 July 2009, Antonio Kairuz was admitted as an emergency to the Geelong Hospital following an emergency transfer from Colac Hospital. The report relevantly goes on to say:
“He presented with significant gastrointestinal bleeding. On admission he was hypotensive and tachycardic. He has a previous history of diverticular disease and a colonic bleed about four years ago which required a partial colectomy at the Western Hospital. His other medical history includes severe Parkinson’s disease.
On admission he was treated with intravenous fluids and had already received a blood transfusion which was instituted in Colac. He proceeded to a gastroscopy which showed no obvious bleeding point from the upper gastrointestinal tract. However a subsequent red cell scan suggested colonic bleeding. A mesenteric angiogram was performed which showed no further evidence of bleeding; it was thought by the attending radiologist that by the time the angiogram was performed the bleeding had ceased.
Following this treatment Mr Kairuz required an intensive period of medical therapy as his Parkinson’s disease medication had to be omitted for several days during these initial investigations. As a result his mobility has reduced and he is only just starting to return to normal. In my opinion he requires a further period of in-patient care and rehabilitation at the Colac Hospital.”
By a further report, also dated 23 July 2009 addressed to Ms Vivien Kairuz (CB10), Dr Watson wrote:
“Further to our recent correspondence and discussions on your uncle Antonio, I write to confirm that he has suffered a severe gastrointestinal bleed which has now responded to treatment. However he will need a period of medical therapy and rehabilitation at the Colac Hospital before he returns home. Following his return home and given his severe Parkinson’s disease he will continue to require care from his family. I would fully support any application from his niece Clounde Gayudan to enter Australia on compassionate grounds to care for him. It is my opinion that his medical conditions will continue to cause problems on a long term basis, in particular his severe Parkinson’s disease.”
Further evidence put to the delegate included statutory declarations. Vivien Kairuz prepared a statutory declaration (CB19) on 10 August 2009. Her evidence relevantly was:
“(3)   I work in a restaurant and while working my above uncle is left alone by himself, but another cousin of mine who lives with us, but who works full time in the farm occasionally see him to check if he is fine. But, it is nothing of care or assistance in full sense of the words.
(4)   On 13 July 2009 when my uncle was brought to hospital for gastro-intestinal bleeding and other complications he needs full time care.
(5)   I fear for my uncle’s health and safety when he is left alone in such remote or far flung place we live and when I approached the District Nursing and community services or close relatives none of them can provide the long term support he needs in his daily living.
(6)   I have social or family, financial and work commitments which prevent me from continuing to provide substantial care and support for my uncle. However, with my uncle’s niece Ms. Clounde Gayudan she is willing to provide the assistance he needs.”
Robert Kairuz also filed a statutory declaration (CB20) likewise affirmed on 10 August 2009. He relevantly deposed:
“(2)   That, my uncle is currently needing substantial care or assistance due to his fragile state of health.
(3)   He has been hospitalised recently caused by gastrointestinal bleeding coupled with other complications.
(4)   That, we approached hospital, district nursing and other community health services, but none of them can provide the time and level of care required by my uncle.
(5)   His niece, in the person of Glounde Gayudan is our relative from overseas who is here for a holiday, but who felt the need to look after him.
(6)   She is willing to assist and care for our uncle (Mr. Kairuz) and provide direct assistance in attending to the practical aspect of his daily life.”
A letter from Otway Health and Community Services (CB21) indicates that that service is able to provide some measure of personal and respite care on a Monday and some further assistance – an hour’s personal care - on Wednesday and Friday. It is reasonable to interpret the letter from Ms Beamish, the Home and Community Care Coordinator of Otway Health, as indicating that no further assistance is available.
Counsel for the applicant submits that no challenge has been made to the evidence to which I have referred and I think that is correct.

The Relevant Legislation

The relevant Regulations with which we are concerned is Regulation 2.05 of the Migration Regulations 1994 (“Regulations”) which sets out the circumstances in which the Minister may waive, relevantly, condition 8503. Regulation 2.05(4) provides relevantly:
“… the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) … 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.”
It is common cause that there had been no previous request for a waiver of condition 8503 and that the request was in writing.

The Decision of the Delegate

The delegate considered the matter in reasons set out at CB31 to 33. The delegate set out at CB32 a summary of the request. The delegate went on to assess the request against the legal criteria and made findings. The relevant findings are set out as follows:
(b)Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
No – Although the applicant’s uncle was admitted to hospital after the grant of her visa he has a history of suffering from multiple medical conditions requiring him to need care.
(c)Did the circumstances result in a major change to the applicant’s circumstances?
No – The applicant has been assisting her relatives in caring for her uncles since she arrived. Her uncle’s health has not been stable for a number of years and I find no major change to the circumstance of the applicant.
(d)Are the circumstances outside the applicant’s control?
Yes – The applicant had no control over her uncle requiring emergency medical treatment or having ongoing serious health problems.
(e)Are the circumstances compelling?
No – The applicant’s uncle has other relatives who currently assist him with his needs as well as receiving limited assistance from Otway Health and Community Services.
(f)Are these circumstances compassionate?
Yes – The applicant wishes to assist her family in Australia. Her uncle is suffering from multiple medical conditions that result in him requiring care.
The delegate went on to conclude that the waiver was not recommended because the applicant did not meet the criteria.

The Applicable Law

Both sides proceeded on the express or implicit assumption that a decision-maker may fall into jurisdictional error as indicated in

Craig v State of South Australia
(1995) 184 CLR 163. The delegate therefore was obliged to take into account relevant material or considerations and to determine substantive issues arising on the evidence before her. I would add to the matters specifically raised by the parties the fact that jurisdictional error may arise where the delegate is shown not to have asked the right question, or misunderstood the task to be performed.

Consideration

The first ground of application raised is that the delegate fell into jurisdictional error or acted without jurisdiction in that she failed to have regard to a relevant consideration or considerations. The complaint here is set out in Ground 1 of the further amended application and it is not necessary to repeat it. Essentially it was put that the delegate failed to consider matters that arose from specific changes in the health of the applicant’s uncle after the grant of the visa.
In my view it is important to approach the delegate’s findings against the material that was on hand. The delegate broke the regulation up into component parts in a way that does not seem to me to be objectionable. Approaching the matter in that way, the first question to be asked was:
(b)Did the circumstances stated in the written request for waiver occur since the visa was granted?
If one looks at the situation that obtained when the visa was granted, the applicant was applying to come to Australia for a holiday. Up until that time, to the extent that the materials directly address the matter, it seems that her uncle, Mr Kairuz, was being cared for by a number of people who included both his other niece, Ms Vivien Kairuz, and the unnamed cousin to whom reference is made in Ms Kairuz’s statutory declaration, together with occasional assistance from the shire.
Another matter which obtained at the time of the grant of the visa was that Mr Kairuz had severe and ongoing Parkinson’s disease. He had also had a colonic bleed some four years previously together with certain other conditions.
What occurred after that was what counsel for the applicant described as a major crisis, a submission which on the materials involves no hyperbole.
The emergency treatment of Mr Kairuz then led to the suspension of his Parkinson’s disease medication which itself precipitated further difficulties.
The uncontradicted evidence of Dr Watson was that following his return home and given his severe Parkinson’s disease, Mr Kairuz would continue to require care from his family. The uncontradicted evidence of Ms Vivien Kairuz was that she had various commitments “which prevent me from continuing to provide substantial care and support for my uncle. However, with my uncle’s niece, Ms Clounde Gayudan, she is willing to provide the assistance he needs.” (emphasis added).
The obvious, and in my view only, inference one can draw from that evidence was that Ms Vivien Kairuz had previously been providing very substantial assistance to her uncle, which assistance was now able to be provided by the applicant.
On any view, the onset of the crisis in Mr Kairuz’s health was a matter not known to the applicant at the time the visa was granted.
Looked at more carefully than in my view the delegate’s somewhat terse dealing with the matter indicates took place, it is clear that when the visa was granted, Mr Kairuz was receiving satisfactory care at home from his extended family but that he suffered a severe crisis which is likely to have been unanticipated (or it would have been met by earlier applications for care), and which involved a reallocation of care within the household.
In my view, the circumstances relevant to the requirement on the applicant to care for her uncle were indeed a change that took place after the visa was granted.
The next issue to be decided is:
(c) Did the circumstances result in a major change to the applicant’s circumstances?
In my view this is exactly what occurred. As I have earlier indicated, the applicant must be assumed to have come to Australia to visit her family. At the time the visa was applied for and granted her uncle was being cared for by that family. Following the crisis in July he was not. She found herself therefore in changed circumstances which obviously is what impelled her to offer her services to the family.
This case is substantially different in my view to the authority referred to by counsel for the respondent, namely, Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590. There O’Loughlin J was dealing with circumstances where an applicant signed various forms in Thailand but after arrival in Australia wished to resile from them. She wished to provide evidence to show that she had not understood the forms that she had signed.
There, as O’Loughlin J said at [12]:
“The only possible argument that could be advanced on the applicant’s behalf was that her lack of understanding was a compelling and compassionate development. The difficulty in that proposition, however, is that one could not readily adopt any derivative of the word “develop” to her lack of understanding. If she has told the truth, her lack of understanding occurred in Bangkok at the time when she applied for the Tourist Visa: her lack of understanding did not thereafter develop. It could only have been her realisation of her lack of understanding that developed.”
It is readily apparent that that case turned on a particular set of facts. The facts here are markedly different. What changed here was the understanding of the applicant as to what might be appropriate for her to do when she arrived, but that change in mindset did not come out of a realisation of a pre-existing circumstance, which is what happened in Thongpraphai. Rather, it took place because of a genuine change in circumstance, namely, the particular crisis in her uncle’s health and the need of the family group to respond to it.
The final matter which relevantly fell to the delegate to consider was:
(e) Are these circumstances compelling?
Here, the finding made by the delegate was that the applicant’s uncle had other relatives “who currently assist him with his needs as well as receiving limited assistance from Otway Health and Community Services”.
In my mind, that finding misunderstood the evidence completely. The evidence was, as I have indicated, that prior to the onset of the crisis, the applicant’s uncle had been looked after by a combination of family members. The uncontradicted evidence was that this could not continue and that it was the applicant who was making up the shortfall, so to speak.
The question to be answered was whether or not the circumstances were compelling, not whether or not the applicant’s uncle had some measure of assistance or not.

Conclusion

In my opinion, the various answers given by the delegate that were negative to the applicant’s case all flowed from a misunderstanding of the task that the delegate was required to perform by the reasons I have set out. They also show a lack of consideration of relevant evidence and, in part, show that the delegate relied upon irrelevant matters. In the circumstances I have described above, I think the delegate fell into jurisdictional error.
In my view the applicant is entitled to the relief she seeks and I will make orders accordingly.
In these circumstances it is not necessary for me to consider Grounds 2 and 3 raised in the further amended application. I note that these grounds occupy a far shorter proportion of the written submissions made.
If it were necessary to do so, I would uphold the submissions made in paragraphs 34 to 38 of the applicant’s written contentions. The delegate did, in my view, arrive at conclusions that were not supported by evidence. To do so, in my view, does indicate that the delegate fell into jurisdictional error.
In considering the issue of jurisdictional error, I respectfully adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

The third ground relied upon in relation to Wednesbury unreasonableness was only put as an alternative to the second, and it is therefore not necessary to deal with it.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 9 April 2010