Ho v Minister for Immigration

[2005] FMCA 1104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HO v MINISTER FOR IMMIGRATION [2005] FMCA 1104

MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether the Tribunal misconstrued and misapplied the words “compel” and “compelling” – consideration of policy – no jurisdictional error disclosed – application dismissed.

Migration Regulations 1994

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77
Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115
Khanfer v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 238
Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Minister for Immigration and Multicultural and Indigenous Affairs and Ors’ Ex parte Cohen (2001) 177 ALR 473
Bruce v Coles (1998) NSWLR 163

Applicant: YIN LEUNG HO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 564 of 2004

Judgment of: Pascoe CFM

Hearing date: 5 July 2005

Delivered at: Sydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: Mr Marsh

Solicitors for the Applicant: Lewis Law

Counsel for the Respondent: Mr Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs fixed in the sum of $5600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 564 of 2004

YIN LEUNG HO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of application filed on 4 March 2005 the applicant seeks a review of the decision of the Migration Review Tribunal (“the Tribunal”) handed down on 18 February 2004 affirming the decision of a delegate of the Minister refusing to grant a Partner (Temporary) (Class UK) visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China (normally resident in Hong Kong) born on 29 May 1952 and arrived in Australia on 16 July 1992 on a permit that expired on 18 January 1993.  From that time, until he was granted a bridging visa in relation to the present visa application (lodged on 2 November 2001), the applicant was in Australia unlawfully.

3. The applicant gave evidence to the Tribunal that he initially overstayed his permit because his parents were ill.  However, in early 1993, the applicant decided to remain in Australia unlawfully in the hope that the Australian government would allow Chinese nationals to remain in Australia after the handover of Hong Kong in 1997, as the government had done in relation to Chinese nationals who had been in Australia at the time of the Tiananmen Square Massacre in 1989.

4. The applicant separated from his then wife in April 1998 and the marriage was formally dissolved in March 2000.  The applicant claims to have met his present wife in February 1999 and to have commenced cohabitation in August 1999.

5. On 11 March 2002 a delegate of the Minister refused to grant to the applicant a Class UK (Partner-Temporary) and Class BS (Partner-Residence) and on 3 April 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.

The applicant’s grounds

1. In his document entitled ‘Outline of Submissions’ the applicant sets out the basis on which he says the Tribunal fell into jurisdictional error.  These are as follows:

   The Tribunal, in the absence of a definition of “compelling reasons” in the Regulations, had reference to the Macquarie Dictionary’s definition of “compel” or “compelling”.  It is submitted for the applicant that the Tribunal mistakenly adopted a meaning of “compelling” apt to describe the verb ‘compel’ and not the meaning of the adjective “compelling”.

It is submitted that in this instance that distinction is significant in that the adoption of this inappropriate definition caused the Tribunal to adopt a far more stringent consideration of the applicant’s entitlement to the benefit of the waiver provision than would have been the case if the nuance of the adjective “compelling” were adopted.

It is submitted that the incorrect interpretation of the word compelling amounts to a question of law, and that the Tribunal thus fell into jurisdictional error.

This error is, in the applicant’s submission, compounded by the guidance which the Tribunal ought to have but did not derive from the Explanatory Memorandum referred to at paragraph 43 of its decision.

It caused, in the applicant’s submission, the Tribunal to ignore the Explanatory Memorandum which adverts to “the hardship that can result if [an applicant]… is obliged to leave Australia and apply from overseas” and the consideration that where the applicant and his nominator were already in a long-standing spouse relationship (two years or longer), the waiver “may be justified by the hardship”.

Further, and whether or not the Tribunal erred in its interpretation of “compelling”, the applicant submits that the Tribunal failed to take proper account of the Explanatory Memorandum’s determination of the applicant’s “long-standing spouse relationship” as itself a reason of a “strongly compassionate” nature.

Thus it is submitted that in considering whether there were “compelling reasons” the Tribunal failed to adopt the long-standing spousal relationship as itself a compelling reason for the waiver of the Schedule 3 criteria.

It should be noted in this regard that the Tribunal did not dismiss the applicant’s evidence (and other corroborative evidence) of the “long-standing spousal relationship”, albeit that it found the evidence in that regard “problematic”.

The applicant submits that in misdirecting itself as to the matters to be considered in determining whether “compelling reasons” existed, the Tribunal fell into jurisdictional error.

The Tribunal did not reject the applicant’s claim of a long-standing spousal relationship.  Yet in considering whether the exception mentioned in the Explanatory Memorandum should be applied, the Tribunal had reference (paragraph 46) to a view that an element of the evidence put forward by the applicant of a long-standing spousal relationship was ‘created’.

It is submitted for the applicant that apart from being inappropriate to the consideration of the “compelling reasons”, the Tribunal ought not to have regard to it in circumstances where it did not reject the applicant’s claim to the existence of a long-standing relationship, and indeed should be taken to have accepted it.

In taking into account inappropriate matters thus, the Tribunal fell into jurisdictional error.

At paragraph 45 of its decision the Tribunal had reference to the purpose of Schedule 3 as explained in MSI-237.  This ignores several significant matters.

The first is the fact that MSI-237 which the Tribunal failed to observe, goes on to say that:

“2.2  At the same time, it is recognized that there are…situations where there are compelling reasons for granting…”

The second, in the applicant’s submission, is that at the time of the decision the PAM3 then relevant gave guidance in relation to the consideration of “compelling reasons” which provided a more ‘sympathetic’ basis for consideration of the waiver of the Schedule 3 criteria.

The third is that (in the applicant’s submission) is that having reached a point in deliberations the Tribunal was considering whether there were “compelling reasons” for waiving the Schedule 3 criteria, it is inappropriate to revert to considerations which were pertinent to consideration of whether the applicant met the Schedule 3 criteria.  In other words, having arrived at the point where waiver of the Schedule 3 criteria was being contemplated, it was appropriate to revert back to such matters.

Indeed, in the applicant’s submission, the Tribunal, rather than entering into a simple consideration of the applicant’s “compelling reasons” instead entered into a balancing measurement of ‘pros and cons’.

This amounted to a failure by the Tribunal to ask itself the correct questions in the discharge of its duty, amounting to jurisdictional error.

It is submitted that in misdirecting itself in relation to the above matters, the Tribunal failed to give proper consideration to the fact that there existed in this case reasons of a “strongly compassionate” nature and that as such the waiver would be justified by the hardship resulting from a requirement of the applicant to go back to Hong Kong to make his application, and instead entered into an exercise of considering whether such hardship as would be occasioned by such circumstance amounted to “compelling reasons”.

It is submitted for the applicant that as a result of the foregoing, the Tribunal failed to give proper consideration to pertinent aspect of the application – resulting in refusal of it.

The Tribunal decision

1. The Tribunal set out the necessary criteria for a subclass 820 visa as claimed by the applicant noting subclauses 820.211(2) and 820.221(1) and 820.221A.  The applicant was not the holder of a substantive visa at the time of application.  Paragraph 820.211(d) of the Regulations sets out the criteria to be satisfied by an applicant who does not hold a substantive visa.  It provides:

   820.211(d) in the case of an applicant who is not the holder of a substantive visa –either:

   (i)     the applicant:

   (A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)     satisfies Schedule 3 criterion 3002; or

   (ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

2. The Tribunal noted that the applicant had not entered Australia as the holder of a subclass 995 visa or as a Special Purpose visa holder.  It noted that as this criterion had not been met, the applicant was required to satisfy Schedule 3 criteria 3001, 3003 and 3004 to be eligible for a subclass visa, unless the Minister was satisfied that there were compelling reasons for not applying these criteria.

3. The Tribunal then went on to determine whether the applicant satisfied Schedule 3 criterion 3001 which provides as follows:

   The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   For the purpose of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   If the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa – 1 September 1994; or

   If the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa – the day when the applicant last became an illegal entrant; or

   ….

4. The Tribunal noted that the applicant did not satisfy Schedule 3 criterion 3001 as the applicant became an unlawful entrant before

   
   

   1 September 1994 and since then had not held a substantive visa.  It noted that the applicant last became an unlawful entrant on 16 January 1993, at which time his temporary entry permit expired.  The Tribunal found that the applicant had not satisfied criterion 3001. It then turned to the remaining criterion for the grant of a subclass 820 visa namely the applicant needed to satisfy the Tribunal that there were compelling reasons for not applying the Schedule 3 criteria.

5. The Tribunal gave the words ‘compel’ and ‘compelling’ their ordinary meaning and noted that compelling reasons required more than the basic pre-requisite for the grant of a visa.  It relied upon the Macquarie Dictionary definition of ‘compel’ and ‘compelling’ as meaning “to force or drive especially to a course of action; to overpower”. In its assessment as to whether there were compelling reasons, the Tribunal had regard to the policy guidelines inserted into the Explanatory Memorandum to Statutory Rule 1996 No.75 which it was required to consider.  This states:

   The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.  The waiver will provide a greater flexibility for the Minister if and when compelling circumstances arise.

   It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

   Where there are Australian – citizen children from the relationship; or

   Where the applicant and his or her nominator are already in a long-standing spouse relationship which has been in existence two years or longer.

   In these circumstances, waiver may be justified by the hardship, which could result if the Schedule 3 criteria were not waived.

6. PAM 3 in relation to Regulation 820.211(d)(ii) states that compelling reasons include:

   there are Australian-citizen children from the relationship; or

   the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years).

7. PAM 3 also states that:

   this does not mean that only those cases with such circumstances should benefit from the waiver, it would be an error of law to apply policy inflexibly; and the applicant and their nominator should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria.

8. The Tribunal considered the claims advanced by the applicant that his circumstances were compelling and set them out at para 44 of its decision. 

   The primary visa applicant and nominator were already in a long-standing spouse relationship at the time of application.  They had been living together as husband and wife since August 1999 and were legally married in December 2000.

   The primary visa applicant and nominator might suffer severe financial hardship if the primary visa applicant were required to go back to Hong Kong to apply for a spouse migrant visa because of the lack of family support there and the difficulties he would have in finding a job.

   If the nominator, were to accompany she does not have the ability to work in Hong Kong as she does not read or write Chinese and English.  She only speaks Cantonese, Teo Chew, Cambodian and very limited English.

   The primary visa applicant’s two teenage, Australian citizen step-sons would have to be left behind in Australia by themselves without their parents beside them.

   If the primary visa applicant were to be separated from the nominator, it would cause them both undue personal and emotional hardship, and there is evidence that the nominator, an Australian citizen, would suffer from depression and mental and health problems as a result.

9. The Tribunal had regard to the guidelines contained in the Explanatory Memorandum and then considered the claims put forward by the applicant.  It made reference to the purpose of the Schedule 3 criteria.  In particular it cited one purpose of Migration Series Instruction 237 which is “to prevent non-citizens from benefiting by remaining in Australia unlawfully, that is, by acquiring migration eligibility while remaining without permission”.  The Tribunal found that this was in fact precisely what the applicant had set out to do, that in doing so the applicant had concealed his presence in Australia for more than two years after he claimed to have commenced his relationship with the nominator and that he finally lodged his application in the hope that the Schedule 3 criteria would be waived on his evidence of a longstanding spousal relationship.  The Tribunal had regard to the three statutory declarations the applicant submitted to the Department.  The Tribunal found that evidence to be unequivocal because it related to a period from August 1999 to December 2000 when the applicant and nominator were married.

10. The Tribunal referred to other evidence submitted by the applicant as evidence of the relationship prior to the marriage, namely accounts in joint names.  The Tribunal noted that the applicant did not put forward any evidence of his cohabitation with the nominator at her flat, notwithstanding that it was at this flat where the applicant claimed to have lived for most of the week.  It was conceded by the applicant that he did not wish to disclose to Centrelink his relationship with the nominator at that point.  The Tribunal found that the applicant and nominator put utility accounts in both names at Ashton Street, Rockdale even though they claimed to Centrelink to only use this flat at weekends and holidays.  The Tribunal considered that this was done not as the natural consequence of two people in a marital relationship who wish to share all aspects of their lives but in order to present some evidence of cohabitation at a future date.  The Tribunal accepted that the applicant and nominator moved into the flat at Gladstone Street, Cabramatta in February 2001.  From that time the documentary evidence was more complete and the Tribunal accepted that by then the relationship had been disclosed to the relevant government departments.

11. At the Tribunal hearing the applicant relied upon statements made by himself and the nominator as well as the evidence of the joint utility accounts to establish the timeframe for the commencement of their relationship.  The Tribunal found that even if it were to accept the evidence of cohabitation prior to their marriage, it was not satisfied that in all the circumstances of the case the exception set out in the Explanatory Memorandum (of a longstanding spousal relationship) should apply.  As stated above at paragraph 16, the Tribunal found the evidence as to the timeframe for the relationship problematic.  In this regard, I note paragraphs 44 to 47 of the statutory declaration of the applicant dated 25 October 2001 which is at pages 33 to 34 of the Court Book.

12. The Tribunal had regard to the summary of reasons put forward as to why the applicant should not be required to leave Australia and make his applications overseas.  It took into account his lack of family support in Hong Kong, the financial hardship if he could not find employment and the difficulties for the nominator.  The Tribunal noted that the applicant stated that he had a sister living in Hong Kong and that his usual occupation was restaurant manager.  The Tribunal noted that although there was no evidence before it that the applicant has worked as a restaurant manager recently, he came to Australia with considerable funds and has family to assist him.  It also had regard to the Department’s information that the average processing time for spousal visa cases in Hong Kong for subclass 100 which were not subject to the normal qualifying period was approximately two months.  It noted that in such circumstances the applicant may not be required to remain in Hong Kong for a prolonged period of time thus minimising the need to seek employment.

13. The Tribunal also considered the applicant’s daughter from his previous marriage.  He was awarded residence of his daughter in August 2000 and she was at the time of the Tribunal hearing, 19 years of age.  There was no evidence before the Tribunal that the applicant’s daughter was living with the applicant.

14. In relation to the applicant’s wife the Tribunal noted that she had the support of her family, including an adult daughter in Australia, she was in receipt of a Centrelink benefit and was in secure accommodation.

    
    

    It found that it would not be necessary for her to spend a prolonged period of time in Hong Kong.  The Tribunal also had regard to the applicant’s wife’s history of traumatic stress and illness and noted that the most recent incident was in 1983 when she was hospitalised after the birth of her daughter.  It had regard to a recent report which stated that she did not present any symptoms of depression but did note that she could become depressed again if separated from the applicant.

1. On the basis of the evidence before it the Tribunal found that there were no compelling reasons not to apply the Schedule 3 criteria and as it had found that the applicant had not met criterion 3001 it followed that the applicant did not meet the requirements of clause 820.211(d) of the Regulations. 

The usage of the terms “compel” and “compelling”

1. At paragraph 42 of its decision the Tribunal referred and applied a dictionary meaning of the word “compelling” as meaning “to force or drive especially to a course of action; to overpower”.  In this regard I note and follow the decision of the Full Federal Court in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 at [21] – [25] which forecloses the applicant’s argument that the Tribunal misconstrued and misapplied the word “compelling” with respect to the relevant criterion (See also Jeong & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 804 at [22]-[23], per Smith FM; McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 at [10], per Whitlam J). In Babicci the Full Court of the Federal Court said that:

   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.  We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.

   In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. 

   In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.

   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 Regulation 1.20J(1) should be waived.

   We do not consider that the definition of “compelling circumstances” adopted by the MRT deflected it from deciding the question it had to decide.  It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him.  It considered whether each of the circumstances alone or together “compelled” the exercise of the discretion.  We can see no error, let alone jurisdictional error.

2. In Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211, Crennan J comprehensively considered the construction of “compel” and “compelling”. Her Honour said at [31] of her Reasons for Judgment that:

   ‘Compel’ and ‘compelling’ are words of ordinary meaning and the subclause’s expression ‘compelling reasons for the absence’ falls to be construed by reference to well-established principles.  In interpreting a statute or delegated legislation the object of the court is to ascertain the legislative intention as ‘expressed by the words used’: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304.  Whilst the construction of a statute is a matter of law, the ordinary or natural meaning of an ordinary English word is generally a question of fact: Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; Re Minister for Immigration and Multicultural and Indigenous Affairs and Ors; Ex parte Cohen (2001) 177 ALR 473 at 481.  Resort by courts to dictionaries, to assist in the task of establishing the ordinary or natural meaning of an ordinary word has been well recognised over a long period: see the observations of Jordan CJ in Australian Gas Light Co. v Valuer-General (1940) 40 SR (NSW) 126 at 137, of Mahoney JA in Provincial Insurance Australia Pty Ltd v Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 504/505.  In the final analysis a court must determine the intention of the legislature and the applicability of ordinary words to specific facts by reference to the meaning of the language and purpose of a particular instrument.

3. It follows that in my view, the Tribunal clearly understood and applied the test to which it must have regard.  It correctly stated the test in para 41 of its reasons for decision, namely:

   To meet the requirements for a grant of a Subclass 820 visa, therefore, the primary visa applicant must satisfy the Tribunal that there are compelling reasons for not applying the Schedule 3 criteria.

4. Whether reasons are or are not “compelling” is a question of fact and degree (See Patel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 115 at [10], per Hely J; Khanfer v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 238 at [10]-[11], per Raphael FM), for the Tribunal, and its determination on that issue does not involve a question of law as contended for the applicant. So long as the Tribunal asked itself the correct question, as it did, its characterisation of reasons as not being compelling was a finding of fact that does not and cannot disclose jurisdictional error unless it is a jurisdictional fact.

The Explanatory Memorandum

1. It was contended for the applicant that the Tribunal did not guide itself properly by reference to the Explanatory Memorandum.  At para 43 of its decision, the Tribunal set out the applicable policy to determine whether or not the reasons advanced by the applicant were compelling in nature.  It is apparent that the Tribunal considered the policy in determining whether or not reasons were compelling.  It mentioned the policy and the guidance set out in the Explanatory Memorandum.  They were clearly not ignored as contended for the applicant.  Whilst the Tribunal did not apply the policy, it clearly understood the meaning and import of the guidance.  It did not find that the applicant failed to come within the ambit of the statement in the Memorandum.  Rather, it was appropriate for the Tribunal to take into account relevant policy whilst at the same time considering the circumstances of the applicant.  It was not bound by the policy (See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [642], per Brennan J). The Tribunal chose not to apply the policy and it was entitled to do so in light of its consideration of the special circumstances pertaining to the applicant’s case. It had regard to other evidence before it and I am satisfied that it considered all of that evidence carefully.

2. The Tribunal concluded that the applicant’s evidence was problematic.  It made its assessment of whether the applicant’s spousal relationship constituted compelling reasons for waiver of the Schedule 3 criteria on the basis of a provisional acceptance of evidence establishing “the timeframe of the beginning of the applicant’s relationship”.  In other words, it accepted the applicant’s relationship satisfied the two year policy and Memorandum.  That said, however, the Tribunal was entitled to comment upon the weakness of the applicant’s evidence.

3. The Tribunal had regard to one of the purposes of the Schedule 3 criteria.  It noted that MSI-237 was to prevent non-citizens from benefiting by remaining in Australia unlawfully, that is, by acquiring migration eligibility while remaining without permission and referred to it only as a resource to assist it in identifying the purpose of the criteria.  In my view it was open to the Tribunal to comment upon the purpose of the Schedule 3 criteria in its consideration as to whether there were compelling reasons which justified waiving the applicant’s visa application.

4. The Court was directed to MS-237 which was replaced by MSI-358 in November 2002 and in turn was replaced by MSI-374 in March 2003.  MSI-358 states that:

   In some cases applicants become unlawful between the time they lodge their substantive visa application and the time it is actioned by the receiving office. They will usually be unaware that they have become unlawful until notified of the invalidity of the application some time after it was lodged.

   Taking into account individual circumstances, it may be reasonable to consider that these applicants became unlawful due to factors beyond their control. In such cases, decision-makers should be satisfied that the applicants acted expeditiously when they first became aware of their unlawful status.

5. The policy considerations in MSI-374 outline the circumstances in which an applicant becomes an illegal entrant or a person in Australia without a substantive visa because of factors beyond the applicant's control.  There were two parts to this policy.

   The existence of factors which caused the applicant to become an illegal entrant or a person in Australia without a substantive visa; and

   Whether those factors were beyond the applicant's control.

   The element of causation is important. It is not sufficient that factors (beyond the control of the applicant) were in existence. Those factors must have caused the applicant to become an illegal entrant or become a person in Australia without a substantive visa.

   "Factors beyond the applicant's control" - This phrase should be given its natural meaning and considered against all relevant circumstances of the applicant.

   The test is whether the applicant became a person to whom 3003 or 3004 applies as a consequence of a circumstance or circumstances, which were external to the person, and over which they had no control. 

   Some circumstances may clearly meet the requirement, for example:

   where a serious accident or illness renders the applicant incapable of making an application.

   Other situations will be more difficult to assess. For example:

   where the applicant claims to have been unaware that they were an illegal entrant or a person in Australia without a substantive visa (see 6.5.13 below); or

   where the applicant misunderstood the period of effect or the conditions of their visa or pre-1 September 1994 entry permit.

   Claims that an applicant was unaware they were an illegal entrant or a person in Australia without a substantive visa should be considered on a case by case basis. The mere fact that an applicant makes such a claim, would not on its own constitute factors beyond their control. 

   However, in some circumstances an applicant's lack of awareness may be directly attributable to someone or something over which they had no control.

   for example, if the applicant's visa or pre-1 September 1994 entry permit was not correctly evidenced and the visa or entry permit ceased in law on a date earlier than the date on the visa label.

   It is reasonable to assume that clients are aware of the period of effect and conditions of their visa unless there is evidence to the contrary. Claims that a client did not understand the period of effect of their visa or pre-1 September 1994 entry permit should be considered on a case by case basis.

   Again, the mere fact that an applicant claims to have misunderstood the visa would not normally on its own constitute factors beyond their control.

   However in some circumstances an applicant's misunderstanding may be directly attributable to someone or something over which they had no control. 

   Cases arise, for example, where an applicant claims to have misunderstood their visa status because of incorrect advice given by the Department. 

   Where claims of incorrect advice by the Department are made, a decision-maker would need to be satisfied that the claims are credible and attempt to verify them with the office or officer who it is claimed gave the advice. 

   In some cases it will not be possible to verify that the advice was given as claimed, nor even that the advice was likely to have been given as claimed. Careful judgement will need to be exercised in such cases. 

   In some circumstances it may be appropriate to give the applicant the benefit of the doubt, provided the claims appear reasonable and credible and are not inconsistent with the results of inquiries with the office or officer concerned. 

   If, however, an applicant claims to have been given certain advice and the office or officer who was the source of the advice is confident that the advice was not given as claimed, or would not have been given in such a situation, it may not be appropriate to extend the benefit of the doubt in favour of the applicant. 

   In some cases applicants become unlawful between the time they lodge their substantive visa application and the time it is actioned by the receiving office. They will usually be unaware that they have become unlawful until notified of the invalidity of the application some time after it was lodged. 

   Taking into account individual circumstances, it may be reasonable to consider that these applicants became unlawful due to factors beyond their control. In such cases, decision-makers should be satisfied that the applicants acted expeditiously when they first became aware of their unlawful status. 

   Cases arise where applicants advise that their agent or lawyer was responsible for them not making their application prior to their substantive visa ceasing, for example because the agent failed to submit the application in time.

   In law, an agency agreement between an applicant and their lawyer or migration agent operates such that the agent (ie the lawyer or migration agent) will be taken to be acting as the applicant. 

   Failure by the agent or lawyer to look after the applicant's best interests may be grounds for the applicant to take legal action against their agent, but would not normally be grounds (on its own) for finding that the applicant became an illegal entrant or a person in Australia without a substantive visa due to factors beyond their control.

6. The applicant claims that the Tribunal somehow failed to take into account the changes in the guidelines set out above.  It is apparent on the face of the Tribunal’s decision it took into account the policy relevant at the time of its decision (See paragraph 7 of the Tribunal decision).

7. The applicant’s contention that the Tribunal did not have proper regard to the applicant’s claim of compelling circumstances must fail.  It is clearly set out in the Tribunal’s decision that it had due regard to all relevant circumstances pertaining to the applicant.  The applicant’s claims were fairly summarised and each claim was considered.

8. In my view the arguments advanced for the applicant were merely attempts to review the merits of the Tribunal decision.  The Court is precluded from such review. 

9. I am satisfied that the Tribunal’s finding of fact were clearly open to it (See Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cohen (supra), per McHugh; Bruce v Coles (1998) NSWLR 163, per Spigelman CJ). There is nothing in the Tribunal decision that leads me to consider that the Tribunal has fallen into jurisdictional error or error of law. Accordingly, the application is dismissed.

10. For all the above reasons, I am satisfied that the application should be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate:  Peter Smith

Date:  5 August 2005