Hager v Minister for Immigration - [2010] FMCA 942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAGER v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 942

MIGRATION – Delegate’s decision – waiver of visa condition precluding on‑shore visa application – open to delegate to find that applicant’s circumstances not beyond her control and not ‘compelling’ – no jurisdictional error evidenced in minute of recommending officer – application for judicial review dismissed.

Migration Act 1958 (Cth), ss.41, 65, 430, 476
Migration Regulations 1994 (Cth), reg.2.05, Sch.8, 8503

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
El Etri v Minister for Immigration & Citizenship [2010] FMCA 898
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGBRv Minister for Immigration [2005] FMCA 824

Applicant:

CATALINA BUAN HAGER

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1757 of 2010

Judgment of:

Smith FM

Hearing date:

26 November 2010

Delivered at:

Sydney

Delivered on:

26 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr N Dobbie

Solicitors for the Applicant:

Dobbie & Devine Immigration Lawyers

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the respondent’s costs in the sum of $4,654.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1757 of 2010

CATALINA BUAN HAGER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this judgment, I explain why I have not found jurisdictional error affecting a decision made by a delegate of the Minister on 27 July 2010, refusing to waive visa condition 8503 which prevents Mrs Hager from being granted a further substantive visa while she remains in Australia.
Mrs Hager came to Australia in December 2005 on a three month tourist visa, to which was attached visa condition 8503. Soon after her arrival, she was induced to stay and become a carer of an elderly man with dementia. While caring for him, she met his eldest son, with whom she developed a relationship which eventually led to their cohabitation in 2006 or 2007, and their marriage in November 2008. Her husband was diagnosed with Alzheimer's disease in 2007, and she commenced to care for him.
Initially, she appears to have had the support of other members of the Hager family, but relationships broke down in January 2010. A sister of her husband became unhappy about the applicant's care of her brother and assumed responsibility for his personal care, to the exclusion of Mrs Hager. The sister placed Mr Hager in a nursing home, and refused to tell Mrs Hager where he was. In about March 2010 Mrs Hager discovered his nursing home, but when she visited him, according to her statutory declaration:
They asked me to leave the place, and told me that they will not allow me to visit (her husband) again without proper authorisation. But I am his wife - why am I denied the right to see my husband. I left the place without any hope of seeing him again.
She said:
I went to a solicitor at Blacktown where we lodged our paper after our marriage more than a year ago. It was another disappointment because our papers were just seated in his office without any action taken.
Later in 2010, Mrs Hager gained the assistance of her present solicitor to attempt to rectify her immigration position. Since the expiry of her tourist visa, she had been an unlawful non‑citizen subject to mandatory removal. On 8 July 2010 her solicitor made an application to waive the condition 8503 on her visa which prevented the grant of further onshore visas. It provided:
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.
The solicitor's letter included the statutory declaration which I have quoted above, and also a submission on the facts and relevant law in relation to the power to waive a condition. The imposition of a condition in terms of 8503 is authorised by s.41(2)(a):
41 Conditions on visas
(1)……
(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
However, under subsection (2A):
(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).
The conditions upon which the Minister's power to waive depends are prescribed in regulation 2.05(4):
2.05Conditions applicable to visas
….
(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.
In the present case, preconditions (b) and (c) were satisfied, but the delegate was not satisfied as to the preconditions referred to in subregulation (4)(a).
A letter from the Department of Immigration told Mrs Hager's solicitor of the delegate’s decision to refuse the request. It said:
After careful consideration of the relevant legislation and the claims you have presented in her request a delegate of the Minister has determined that Ms Mapuyan’s circumstances do not satisfy the requirements of sub-regulation 2.05(4) of the Migration Regulations 1994, and therefore has not waived the 8503 condition under the sub-section 41(2A) of the Migration Act 1958.
…..
Specifically, it was not accepted that since Ms Mapuyan was granted the visa was subject to the 8503 condition that circumstances have developed over which you (sic: she) had “no control” and “resulted” in a major change to her circumstances and are both compelling and compassionate.
It will be noted that the letter did not explain which of the elements in reg.2.05(4)(a) were not satisfied in the opinion of the delegate. The fourth paragraph of the delegate's letter referred to all four of the elements, without explanation as to how they had been addressed in her mind. The letter did not purport to adopt, either expressly or by implication, any other document as a source or explanation of the delegate's reasons. There was no obligation on the delegate under the Migration Act to provide reasons (cf. SZGBRv Minister for Immigration [2005] FMCA 824 at [10]-[13] and Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26]).
Mrs Hager’s solicitor therefore faced a difficult task in identifying evidence of any jurisdictional error.
After the commencement of the present proceedings, the Minister filed a court book containing documents from the relevant file. These documents disclose that the folios immediately preceding the copy of the refusal letter consist of a minute entitled "submission to delegate", which was written by another Department officer, to inform the delegate as to the relevant law, the factual claims made by Mrs Hager, and the documents which had been submitted in support. It also contains "an assessment of the circumstances of the client" against sub-reg.2.05(4), and it concludes with a recommendation. At the end of the submission are the words:
DELEGATE’S DECISION WAIVED/NOT WAIVED
The delegate has struck out ‘waived’ and signed and dated the document. The notification letter was then signed and dispatched by the recommending officer on the same day.
In her minute, the recommending officer recited the circumstances presented by Mrs Hager in a series of dot points (which I shall number) under the heading “Summary Of Request”:
1)Ms Catalina Mapuyan arrived in Australia on 25 December 2005 on a three month Tourist Visa subclass 676, granted on 23 November 2005. 8503 condition was imposed on the visa.
2)Departmental records confirm Ms Mapuyan remained in Australia beyond her visa validity period and remained an unlawful non-citizen.
3)On 12 July 2010, a request to waive the 8503 condition on her visa was lodged on Ms Mapuyan’s behalf by migration agent Mr Nigel Dobbie.
4)In her request, Ms Mapuyan claims she married Mr Martin Hager, an Australian Citizen on 29 November 2008. Ms Mapuyan first met Mr Hager in 2006 while she was caring for his father, Mr Jack Hager. In June 2007 Mr Jack Hager was placed in a nursing home and Ms Mapuyan moved out of the family home. Mr Jack Hager passed away in May 2008.
5)Ms Mapuyan and Mr Martin Hager continued their relationship and following problems arising from the breakdown of his marriage, business failures and disagreements with his siblings Mr Martin’s health deteriorated. He moved into Ms Mapuyan’s residence in Marrickville without his siblings’ knowledge.
6)Following deterioration in Mr Hager’s health, the couple decided to open up about their relationship to Mr Hager’s siblings. Mr Hager siblings sought medical advice from a specialist and he was diagnosed with suffering from severe Alzheimer’s disease.
7)Following their marriage in November 2008, the couple were assisted financially by Mr Hager’s siblings.
8)In August 2009, following a disagreement with Ms Mapuyan and Mr Hager’s sister, Mr Hager was removed from their home without Ms Mapuyan’s knowledge or approval. Ms Mapuyan called the police as she was concerned about her husband’s welfare. The police advised Ms Mapuyan that her husband was “well” but did not disclose his whereabouts. Ms Mapuyan later learned that her husband was placed in a nursing home by his sister.
9)Ms Mapuyan visited her husband at the nursing home but was advised by the carer that she had no authority to visit him or remove him from the nursing home.
10)Ms Mapuyan claims she consulted legal advice but the solicitor refused to act on her behalf.
11)Ms Mapuyan claims her husband was removed from her care against his and her wishes. Ms Mapuyan would like to have the 8503 condition removed to apply for permanent residence so she can remain in Australia and look after her husband.
The recommending officer's assessment of the circumstances against the elements of sub-reg. 2.05(4) followed a template list of issues. It was:
ASSESSMENT OF THE CIRCUMSTANCES OF THE CLIENT AGAINST SUBREGULATION 2.05(4):
a)If the client has previously had a request for a waiver of condition 8503 and the condition was not waived, are the circumstances provided in relation to this particular request substantially different from those considered previously?
N/A. This is the first waiver request from the client.
b)Did the circumstances (stated in the written request for waiver) occur since the visa was granted?
Yes. Ms Mapuyan travelled to Australia for a two week holiday.
Departmental records confirm that Ms Mapuyan remained in Australia beyond her visa validity period and remained an unlawful non-citizen from 26 March 2006 to date.
Ms Mapuyan entered into a relationship with Mr Martin Hager an Australian Citizen in 2006 and they married in November 2008.
Ms Mapuyan was caring for Mr Hager until he was removed from their home and placed in a nursing home by his sister.
Ms Mapuyan claims she would like to remain in Australia, apply for permanent residence and continue to care for her husband.
c)Did the circumstances result in a major change to the client’s circumstances?
Yes. Ms Mapuyan’s marriage to Mr Hager constitutes a major change to his circumstances.
d)Were the circumstances outside the client’s control?
No. Ms Mapuyan was granted a three month Tourist Visa to travel to Australia for a holiday.
Ms Mapuyan was fully aware of the 8503 No Further Stay condition on her visa prior to her visa grant and arrival in Australia.
Ms Mapuyan made a conscious decision to remain in Australia beyond her visa validity period and marry Mr Hager.
The decision was completely within her control.
e)Are these circumstances compelling?
No. Ms Mapuyan claims she is married to Mr Martin Hager, an Australian Citizen. Ms Mapuyan claims her husband suffers from severe Alzheimer’s and needs ongoing care.
Under current waiver policy, marriage to an Australian resident would not normally be considered to be ‘beyond the control’ of a waiver applicant. Waiver policy in relation to medical conditions of close family members also requires that the officer be satisfied that the family member both requires care, and that the applicant is the only person who can provide that care. Policy further provides that deterioration of an existing illness or medical condition would not normally be grounds for waiver.
Information provided by Ms Mapuyan confirms that Ms Mapuyan’s husband has been admitted to a nursing home by his sister and Ms Mapuyan does not have authority to visit her husband or remove him from the nursing home.
Ms Mapuyan’s claim that she needs to remain in Australia to care for her husband when he is already in a nursing care facility does not constitute circumstances of a compelling nature.
f)Are these circumstances compassionate?
Yes. Compassionate circumstances do exist as Ms Mapuyan claims she does not have access to her husband and would like to be able to remain in Australia to care for him.
Recommendation
In consideration of Ms Catalina Mapuyan’s request for waiver of condition 8503, I have formed the view that her circumstances are not circumstances of the kind set out in sub-regulation 2.05(4) if the Migration Regulations.
I therefore recommend that:
The 8503 condition on Ms Catalina Mapuyan’s visa not be waived under subsection 41(2A) of the Migration Act.
The present proceeding seeks relief under s.476 of the Migration Act by way of judicial review of the decision of the delegate, there being no merits review provided under the Migration Act. It seeks relief by way of writs quashing the delegate's decision and directing the reconsideration of the application for waiver. I have power to make these orders only if I am satisfied that the delegate's decision is affected by jurisdictional error. I do not have power myself to decide whether the preconditions to the waiver power were satisfied on the evidence before the delegate. In this respect, I note that it was common ground between the parties that regulation 2.05(4)(a) does not raise questions of “jurisdictional fact” which the Court itself may determine.
Mrs Hager's solicitor relied upon an amended application containing seven grounds, of which the fifth ground was not pressed, and the fourth ground was conceded to be covered by his submissions on the third ground. The other grounds were as follows:
1.The delegate of the Respondent failed to accord the Applicant procedural fairness.
Particulars
i)   In exercising the power conferred under s.41(2A) of the Act, the delegate failed to accord the Applicant procedural fairness by:
a) not giving to the Applicant for consideration before a decision was made a document entitled ‘Minute Submission to Delegate’, which contained an adverse opinion by a DIAC officer, [named], in relation to the Applicant’s waiver application, and who recommended to the delegate that Condition 8503 not be waived.
2.The delegate of the Respondent failed to consider claims made by the Applicant.
Particulars
i)   On the assumption that the document entitled ‘Minute Submission to Delegate’ are the reasons for the decision, in exercising the power conferred under s.41(2A) of the Act:
a) in determining whether the claimed circumstances were beyond the Applicant’s control, the delegate failed to consider her claim that the deterioration of her husband’s health with severe Alzheimer’s disease was beyond her control; and or
b) in determining whether the claimed circumstances were beyond the Applicant’s control, the delegate failed to consider her claim that the action of the Applicant’s sister-in-law was beyond her control; and or
c) in determining whether the claimed circumstances were compelling circumstances, the delegate failed to determine whether the Applicant’s husband’s medical condition was a compelling circumstance; and or
d) in determining whether the claimed circumstances were compelling circumstances, the delegate failed to consider her claim that the conduct of the Applicant’s sister-in-law (Ms Hager) in placing Mr Hager in a nursing home against his will and the Applicant’s will was a compelling circumstance; and or
e) in determining whether the claimed circumstances were compelling circumstances, the delegate failed to consider her claim that she needed to remain in Australia to continue to provide the love and attention that her husband needs; and or
f)   in determining whether the claimed circumstances were compelling circumstances, the delegate failed to consider the Applicant’s claim that cumulatively, her claims established that the circumstances were compelling.
3.The delegate of the Respondent misinterpreted the applicable law and misapplied the law to the facts
Particulars
i) On the assumption that the document entitled ‘Minute Submission to Delegate’ are the reasons for the decision, in exercising the power conferred under s.41(2A) of the Act, the delegate erred in her understanding and application of r.2.05(4) of the Migration Regulations 1994:
a) in determining whether the claimed circumstances were compelling circumstances, the delegate create a false dichotomy; namely that because the Applicant’s husband was in a nursing home, the love and attention that the Applicant claimed she would continue to provide to her husband, and that she claimed he needs, given his medical condition, could therefore not be a compelling circumstance; and or
b) in determining whether the claimed circumstances were compelling circumstances, the delegate relied on policy that was inconsistent with the law; namely
A.     the delegate relied on policy that required the Applicant to show that she was the only person who could provide the care required, when there is no such restriction in law; and or
B.     the delegate relied on policy that stated that deterioration of an existing serious illness or medical condition would not normally be grounds for waiver, when there is no such restriction in law.
........
6.The delegate’s decision was so unreasonable and not supported by probative evidence, or is arbitrary, as to be infected with jurisdictional error.
Particulars
i)   The decision of the delegate is so unreasonable and not supported by probative evidence, or is arbitrary, as to be infected with jurisdiction error.
a) in the event that the document entitled ‘Minute Submission to Delegate’ does not contain the reasons for the decision, in the absence of reasons, there are no reasons for the decision, such that the decision should be found to be arbitrary.
b) the evidence submitted was such that no reasonable decision maker would have concluded that the circumstances were not compelling and were not beyond the Applicant’s control; and including when the Minute also incorrectly stated that:
A.     That following deterioration of the Applicant’s health, they decided to disclose their relationship to the Applicant’s husband’s siblings, when there was no such nexus; and or
B.     The Applicant’s husband was taken from their home by his sister in August 2009, when that did not occur until February 2010; and or
C.     The Applicant was informed by the carer of the nursing home that she had no authority to visit her husband or to remove him from the nursing home, when no such claim was made; and or
D.     The Applicant claimed she consulted legal advice but the solicitor refused to act on her behalf, when no such claim was made.
7.The delegate constructively failed to exercise her jurisdiction by failing to consider the waiver application as put by the Applicant decision.
Particulars
i)   The delegate failed to consider the waiver application as put by the Applicant, as she incorrectly stated that the Applicant’s claims were:
a) That following the deterioration of the Applicant’s husband’s health, they decided to disclose their relationship to the Applicant’s husband’s siblings, when there was no such nexus; and
b) The Applicant’s husband was taken from their home by his sister in August 2009, when that did not occur until February 2010; and
c) The Applicant was informed by the carer of the nursing home that she had no authority to visit her husband or to remove him from the nursing home, when no such claim was made; and
d) The Applicant claimed she consulted legal advice but the solicitor refused to act on her behalf, when no such claim was made.

In support of the first and other grounds, reference was made in Mrs Hager’s written and oral submissions to four factual errors which were argued to be revealed in the recommending officer's ‘Summary of Request’ which I have extracted above. These were:
i)In the sixth paragraph opening sentence: “Following deterioration in Mr Hager's health, the couple decided to open up about their relationship to Mr Hager's siblings”. It was submitted that this inaccurately recounted Mrs Hager's statutory declaration at the end of paragraph 5 and into paragraph 6, where she said:
We were very happy and really loved each other. Although I noticed that Martin was becoming forgetful, like where he placed his wallet, or his mobile phone, but it did not affect our relationship, because we loved each other.
Then, finally, we decided to open up about our relationship to his sister Jill and brothers, Phillip and Graham. They also learned about Martin’s situation and took him to the specialist. He was diagnosed with Alzheimer’s disease. Later, we informed them about our plan of getting married.
ii)In the eighth paragraph, identifying August 2009 as the date when "Mr Hager was removed from their home". It was submitted that, in fact, a correct reading of paragraph 7 of the statutory declaration showed that this occurred at an unstated date at the beginning of February 2010.
iii)In the ninth paragraph statement that Mrs Hager was “advised by the carer that she had no authority to visit him or remove him from the nursing home”. It is submitted that this does not correctly recount the parts of the statutory declaration which I extracted at the commencement of this judgment.
iv)In the tenth paragraph statement that Mrs Hager “consulted legal advice but the solicitor refused to act on her behalf”. It is submitted that this misstated Mrs Hager's paragraph 10 of her statutory declaration, which I have also quoted above.
The Minister's counsel concedes the second factual error, but disputes the other errors. He also submits that any errors were immaterial to the reasoning of the recommending officer, and of the delegate if that reasoning is attributable to the delegate.
The four submitted errors of fact are pertinent to several of the grounds of judicial review which were relied upon by Mrs Hager, and I shall rule upon them in the context of the particular grounds.

Ground 1

This ground alleges a breach of procedural fairness which, as Mrs Hager’s submissions were developed, relied upon two aspects of the recommending officer's submission. The first was that it contained a recommendation which had not been shown to Mrs Hager or her solicitor. Secondly, that its preceding assessment included the four errors of fact which I have itemised above.
It was submitted that the relevant principle of procedural fairness was identified by Brennan J in a very well known passage in Kioa v West (1985) 159 CLR 550 at 629. His Honour referred to a minute which went to the decision-maker in that case and which asserted:
22. Mr. Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern.
Brennan J held that procedural fairness had been denied due to the failure of the decision-maker to ensure that this allegation had been put to Mr Kioa. His Honour said:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr. Kioa an opportunity to deal with it before making an order that Mr. and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case — neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision — which would have made it unreasonable to have given Mr. and Mrs. Kioa that opportunity. The failure to give Mr. Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside. If the Minister chooses to do so, a fresh decision may be made. There is nothing in these reasons which affects the merits of the decision made or of any decision which may be made in the future. (emphasis added)
However, in my opinion, the principle explained and applied by Brennan J does not have application in the present circumstances, for several reasons. Essentially, these are the same reasons as were identified by the High Court for rejecting a similar procedural fairness challenge based on the contents of a submission made to the decision-maker in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [16] to [25].
Dealing with the alleged mistakes of fact, I accept the submission of counsel for the Minister that the first, third and fourth alleged mistakes of fact should not be so characterised. Rather, in my opinion, these paragraphs of the submission contain a reasonable and fair summary of the claims and evidence presented to the Department by Mrs Hager and her solicitor.
The recommending officer’s reference to the husband's deteriorating health and the revelation of the couple's relationship to his siblings did not, contrary to the submission to me, erroneously assert a causal connection, but merely recited these events in the same sequence that they had been narrated in Mrs Hager's statutory declaration.
The recommending officer’s statement that Mrs Hager was “advised by the carer that she had no authority to visit” her husband in the nursing home, in my opinion, was reasonably open. I can see no material inconsistency with Mrs Hagar’s statutory declaration stating that she had been told that she could not visit “without proper authorisation”. In this respect, I note that her solicitor's covering letter had referred to her evidence that “she was not permitted to visit unless she had proper authorisation”.
Similarly, in relation to the fourth alleged error, in my opinion the recommending officer made a reasonable reference to Mrs Hager's obscure statement about having unsuccessfully sought help from a solicitor. In her statutory declaration, she said this had happened “without any action taken”. In his submission, her solicitor said: “she states that he did not do anything”. In my opinion, it was not materially inconsistent for the recommending officer to have described the situation as being that “the solicitor refused to act on her behalf”.
As I have noted above, it is conceded that the month of the husband being removed from Mrs Hager's home by her husband’s sister was incorrectly stated by about six months. However I am unable to detect that this error made any material difference to the assessment made by the recommender. The date of that occurrence appears to me not to have been a matter pertinent to the reasoning of the recommending officer, and I am unable to detect how it could have adversely influenced the delegate’s decision in any material manner.
As is apparent, the recommending officer accepted that recent events in Mrs Hager's life represented a ‘major change’ in her circumstances, and that they were deserving of the characterisation of being "compassionate circumstances". I am unable to detect in any of the recommending officer’s recounting of Mrs Hager’s evidence given to the Department any distortion or error which could have had any bearing on the assessments of the other elements of the regulation, being those which the recommending officer thought she could not satisfy; that is, the elements of “control” and “compelling” in relation to the development of her current circumstances.
I am therefore unable to detect anything in the recommending officer’s summary of the evidence submitted by Mrs Hagar which would meet the description of Brennan J as something “credible, relevant and significant to the decision to be made”, which fairness might have required to be put to Mrs Hager and her solicitor for comment.
A further circumstance which was pointed to by Mrs Hagar’s solicitor as giving rise to an obligation in procedural fairness for the submission to be put to them, was the presence in it of a recommended outcome, and of an assessment upon which that recommendation was based. No authority was cited supporting an obligation of procedural fairness which requires a submission of the present type to be disclosed for comment, and I am unaware of any.
It appears to me that, even assuming that the assessment and recommendation of the recommending officer were adopted entirely as the delegate's reasons, the recommending officer’s assessment and recommendation had no different status than the “thought processes” of the delegate herself which preceded the making of her decision. It is well established that procedural fairness does not generally require such thought processes of a decision-maker to be disclosed for prior comment (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, cited in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
For all the above reasons, I am not satisfied that a failure of procedural fairness has been made out as was argued by reference to ground 1.

Ground 2

This and subsequent grounds face the immediate hurdle of persuading me that the submission containing the assessments of the recommending officer evidences the reasons of the delegate. As I have noted, there is no explicit or implicit adoption of that assessment, except through the presence at its end of a recorded decision by the delegate. In terms, the decision did not purport to adopt the recommendation, although it indicates that the assessment and recommendation were probably considered by the delegate.
There are cases where recommendations in a submission to a decision-maker have been found by a court to provide evidence of the reasons of the decision-maker, usually because there is evidence showing an adoption or allowing that inference. Neither party cited authorities in this respect. As presently advised, I am not satisfied on the balance of probabilities in the present case that there was an adoption by the delegate of the reasoning of the recommending officer.
However, I propose to address this ground and the other grounds upon the assumption which they invite. As I shall explain, I do not consider that this assumption assists the establishment of jurisdictional error affecting the delegate's decision.
In relation to Ground 2, it was submitted that a failure to consider relevant matters is established by omissions from the part of the minute containing the recommending officer’s “assessment” whether circumstances had developed since the grant of the tourist visa in 2005 which were outside Mrs Hagar’s control. In particular, it was submitted that the matters identified under particulars (a) and (b) were not discussed by the recommending officer, and that they were therefore overlooked. It was similarly argued in relation to the recommending officer’s assessment whether the circumstances were “compelling”, that there was a failure to identify and expressly discuss the matters listed in particulars (c) to (f).
However, I would not draw any conclusion that those matters were overlooked by either the recommending officer or the delegate.
The assessment recorded in the minute must read cautiously, even on the assumption that it was adopted by the delegate. It was not required to be a full statement of reasons and, in my opinion, does not purport to be one within requirements such as are found in ss.66(2), 368, or 430 of the Migration Act. The recommending officer has provided only her tersely expressed conclusions, with short reasons supporting each conclusion. She did not purport to give a full description of her thought processes referrable to that particular issue.
Thus, the recommending officer identified as relevant to the issue of “circumstances outside the client's control” the initial circumstances of Mrs Hager's protraction of her visit to Australia, giving rise to her residence with her husband's family and the formation of her relationship and her marriage to him, as being circumstances which were within her control. In my opinion, such a conclusion was plainly open to a decision-maker under reg.2.05(4)(a). Once that aspect of Mrs Hagar’s circumstances was identified, it was unnecessary to point to other circumstances which subsequently developed and which might have been outside her control. I would not infer from the absence of discussion about her other circumstances that they were overlooked.
Moreover, the earlier narration of Mrs Hagar’s circumstances under the heading ‘Summary of Request’ provided a fair summary of the overall circumstances which had developed after Mrs Hager's tourist visa had been granted in 2005. Plainly the assessment and recommendation were to be read in the light of that summary. I would therefore infer positively that the recommending officer was fully aware of the matters particularised under this ground.
I draw the same conclusions in relation to the part of the assessment concerning whether Mrs Hager’s circumstances were ‘compelling’. I am not persuaded that any elements in Mrs Hager's current circumstances were overlooked insofar as they could have a bearing on whether they could be characterised as “compelling” within the meaning of the regulation.
Rather, in my opinion, Mrs Hagar’s submissions concerning this part of the assessment sought to quarrel with its merits, and did so upon a misconception of the meaning of the regulation’s reference to ‘compelling’. As several authorities have shown, this word invites a very broad consideration by the Minister of the case for waiving visa condition 8503 when attached to a tourist visa of short duration. In SZGBRv Minister for Immigration [2005] FMCA 824, I explained:
[19] Authorities on the meaning of tests of “compelling and compassionate circumstances” in other regulations have shown that these words confer on a decision maker a broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances. For example, in Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 at 12, Marshall J refers to authority that:
It should also be borne in mind that the concept of a compelling and compassionate circumstance…is one that relates to "an event or events that are far-reaching and most heavily persuasive".
[20] In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 a Full Court considered the meaning of an exemption or waiver power in relation to a visa condition which included a test of “compelling circumstances”. Their Honours said:
[21] In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. …
[24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in (the relevant regulation) should be waived.
The test of ‘compelling’ describes a state of mind required to be reached by the decision-maker, not a state of mind of the applicant for the waiver concerning his own circumstances (see El Etri v Minister for Immigration & Citizenship [2010] FMCA 898 at [16]).
I am not persuaded that the assessments found in the submission disclose any failure to consider a relevant matter, either by the author of the submission or by the delegate, in relation to the issues upon which the recommending officer advised refusal of the waiver request. I am not persuaded that ground 2 has been made out.

Ground 3

In relation to ground 3 it was argued that the recommending officer’s assessment reveals two errors of law, being jurisdictional errors.
It was first argued, in effect, that there was an error of logic in the reasoning of the recommending officer concerning whether Mrs Hager’s circumstances should be assessed as ‘compelling’ in relation to the exercise of the waiver power. The second sentence of the second paragraph of this part of the assessment was pointed to, where it is said:
Waiver policy in relation to medical conditions of close family members also requires that the officer be satisfied that the family member both requires care, and that the applicant is the only person who can provide that care
However, I am unable to identify any illogicality in applying such a consideration in a case such as the present. The availability of alternative providers of care is, in my opinion, a permissible consideration, and it was not illogical nor unreasonable for it to be taken into account in the present case.
It was secondly argued that this consideration was addressed by the recommending officer under an inflexible and determinative policy which had the effect of unlawfully fettering the breadth of the criteria provided in the regulation. No authorities concerning this species of jurisdictional error were cited to me.
However, I am unpersuaded by this argument. The actual contents of the relevant policy document is not before the Court, and I would not conclude that it was in the exact terms referred to in this minute. As quoted in the assessment, it appears that the policy gave guidance as to how cases should be addressed ‘normally’, thereby allowing and inviting a consideration of any special or particular circumstances of the case. I am not satisfied that, in fact, a policy document directed a decision-maker to apply an inflexible rule that ‘the family member both requires care and that the applicant is the only person who can provide that care”.
Even I were satisfied that the unidentified ‘policy’ was framed in a confining manner, I am not persuaded that the author of this recommendation treated it in that manner. This is because other circumstances and policy considerations were also referred to in the assessment of this issue. The final recommendation, or opinion, that Mrs Hager’s need to stay in Australia “to care for her husband” did not constitute circumstances of a compelling nature, was based upon all the circumstances in relation to her husband's presence in the nursing home.
I am therefore not persuaded that there is evidence before me establishing the application of a fettering policy in the present decision.

Ground 4

The solicitor for the applicant accepted that ground 4 in effect made a contention which was covered or answered by the previous grounds, and he did not seek to present additional argument. For the reasons given above, I am not satisfied that a policy inconsistent with the law was blindly applied in the present case.

Ground 6

This ground points to three matters establishing the ‘unreasonableness’ of the delegate’s decision within principles recently addressed by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. It is unnecessary for me to consider the differences in the judgments of the High Court (see MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [42]-[45]). On any of the judgments, it is necessary to characterise reasoning of a decision-maker as being "irrational, illogical and not based on findings or inferences of fact supported by logical grounds" (see the judgment of Gummow and Kiefel JJ at [40]), and possibly also to consider whether the same conclusion would have been open to another decision-maker on the same evidence (see the judgment of Crennan and Bell JJ at [130]).

On the assumption that the delegate did follow the reasoning in the minute, I am unable to detect in that minute any illogicality of reasoning, nor am I able to detect factual or discretionary assessments which were not reasonably open to a decision-maker on the evidence before the Department.
In my opinion, it was open to a decision‑maker to consider that Mrs Hager’s present circumstances had developed since 2005 as a result of voluntary actions on her part in relation to remaining in Australia and developing new personal relationships. Similarly, I am not persuaded that her circumstances must necessarily appear ‘compelling’ in the mind of a decision-maker applying reg.2.05)(4)(a) in accordance with the authorities referred to above.
In relation to the irrationality said to flow from the four mistakes argued in relation to the recommender's “Summary of Request”, I have addressed these above. I have explained why, in my opinion, they did not exist, or were immaterial to the process of assessment followed in the minute. They therefore do not provide, in my opinion, evidence of the jurisdictional error of unreasonableness.
Taking into account all the submissions made to me today I am not persuaded that ground 6 is made out.

Ground 7

The solicitor for the applicant did not clearly present an argument in support of ground 7 distinct from his arguments in support of other grounds. As framed, the ground appears essentially to argue that there was a failure to exercise jurisdiction due to the taking into account of irrelevant considerations. Those considerations being the mistaken facts argued in relation to the minute writer's “Summary of Request”.
As I have explained above, I am not persuaded that three of these errors exist. In relation to the second error, I am not persuaded that the error of fact as to the date when Mr Hager was removed from Mrs Hager’s home was material to the adverse assessment made in the minute. I am therefore not persuaded that it was materially taken into account as a reason for refusing this waiver request. For these reasons, I am not satisfied that the ground raised in ground 7 has been made out.
For all the above reasons I consider that jurisdictional error affecting this decision has not been established. I must therefore dismiss the application.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 13 December 2010