Khan v Minister for Immigration - [2005] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION

[2005] FMCA 558

MIGRATION – Visa – application for review of a decision of a Delegate of the minister not to remove condition 8503 from the applicant's visa – applicant is a citizen of Fiji.

Migration Act 1958 (Cth) s.474
Migration Regulations 1994 Reg 2.05

Minister for Immigration & Multicultural & Indigenous Affairs v VOAO and VOAP (2005) FCAFC 50
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014, 1047

Applicant:

MOHAMMED ARSHAD KHAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3449 of 2004

Judgment of:

Scarlett FM

Hearing date:

13 April 2005

Date of Last Submission:

13 April 2005

Delivered at:

Sydney

Delivered on:

14 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Beech-Jones

Solicitors for the Applicant:

Simon Jeans & Associates

Counsel for the Respondent:

Mr Karp

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3449 of 2004

MOHAMMED ARSHAD KHAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court today is an application for review of a decision of a Delegate of the Minister not to remove condition 8503 from the applicant's visa.
The applicant is 19 years of age. He is a citizen of Fiji. He arrived in Australia on 19 August 2001 when he was still a child. His visa then was subject to condition 8503 which is the No Further Stay condition. His mother had applied for another visa but was eventually unsuccessful.
The applicant, who has been living in Australia now for four years, made an application on 27 September 2004 for the removal of condition 8503 from his visa so that he could apply for another visa. As required, the applicant made a written submission to the respondent Minister seeking the removal of this condition. He set out in his submission a number of matters that related to his claim which he contended had brought about a major change in his personal circumstances.
Since his arrival in Australia the applicant has undergone a course of school study and has attained the Higher School Certificate.

His English has improved dramatically, particularly his spoken English. He has made new and close friends. He has obtained work experience with KFC Chicken. He has worked as a store person for QSR Limited and since 1 December 2003 has taken on a plumbing apprenticeship which involves study at the College of Technical and Further Education.
He provided an extensive collection of letters and statements in support relating not only to his personal life and relationships but also his progress through the education system in Australia.
The office of the respondent Minister considered the submission and prepared a submission to the Manager, Visas and Citizenship, setting out a variety of issues, making some recommendations. The recommendation as set out on page 83 of the Court Book was that the condition 8503 on the applicant's visa should not be waived.
On 5 October 2004 the Manager, Visas and Citizenship, forwarded a letter to the applicant's migration agent, the relevant parts of which stated:
After careful consideration of the relevant legislation and the circumstances you presented in your request I have determined that Mr Khan fails to satisfy legislative criteria for the 8503 condition to be waived. Consequently your request has been denied and the condition remains in effect.
The letter goes on to tell the applicant, or at least his migration agents, that his request had been assessed against the requirements of Migration Regulation 2.05(4) which is the regulation that prescribes the criteria that must be met before an 8503 visa condition could be waived. The letter sets out that visa holders must demonstrate that compelling and compassionate circumstances have arisen since their visa was granted that represents major change to their circumstances and that this change was beyond their control. The letter goes on to say:
On the basis of information you have provided I am not satisfied that the circumstances represent a major change in your circumstances.
The applicant has then sought a review of that decision. An amended application was filed in Court on the date of the hearing, 13 April.

The grounds that are set out are these:
1.there was no evidence for the delegate's conclusion that the facts placed before him by the applicant's solicitor did not represent a major change in the applicant's circumstances pursuant to Migration Regulations 1994, Reg 2.05(4)(a)(ii)
2.the Delegate erred in law in asking the wrong question,
Particulars:
3.the Tribunal asked itself whether it was satisfied that there was a major change in the applicant's circumstances whereas it should have asked whether in fact there had been in fact a major change in the applicant's circumstances.
The applicant submitted an outline of submissions and the respondent on 11 April submitted an outline of submissions. The applicant in reply to the respondent's outline of submissions submitted a further set of submissions. Those further submissions were forwarded to the Court and the amended application was filed in Court.
The respondent's outline of submissions sets out several matters of importance. As was said in paragraph 1, three matters should be noted. First, the Delegate's letter does not appear to embrace the entirety of the reasons put forward in the Departmental minute. Although the minute suggested that the relevant circumstances were neither compelling nor compassionate, the Delegate's letter stated:
On the basis of information you have provided I am not satisfied that the circumstances represent a major change in your circumstances.
Second, as the Delegate's letter indicates, he did not positively find that the circumstances did not represent a major change but simply expressed a lack of satisfaction that there was a major change.
Third, there was no obligation on the Delegate to provide reasons for his decision.
The respondent's submissions looked at the applicant's contention relating to the no evidence ground. As I said, the applicant's original submission has somewhat changed and I will deal with the applicant's final submission shortly.
The respondent and the applicant both referred to Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014, 1047. In his submissions on behalf of the respondent, Mr Beech-Jones of counsel said that the relevant passages from Tameside and other cases set out in the applicant's submission draw the distinction between the evaluation or reason of the decision make and their fact finding process. He submits that on any view what the applicant seeks to attack is the former and not the latter. The basis of his submission in fact is that the no evidence ground has no role to play in relation to the Delegate's decision. Otherwise he has submitted there is no suggestion it involved an error or law or manifest unreasonableness. It did, he submitted, involve matters of degree and judgment.
In the applicant's reply to the respondent's submissions, the counsel for the applicant, Mr Karp, referred to his earlier submission in particular, a submission that a decision pursuant to r 2.05 paragraph 4 is one of fact, not satisfaction, although in this case they may amount to the same thing.
The letter, at Relevant Documents 84 to 5, which is the letter from which I have quoted, should be read as containing a finding that the circumstances outlined in the solicitor's letter do not represent a major change in circumstances. He goes on to refer to Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 where it has been said that:
An administrative decision should be read without an eye keenly attuned to error or with one focusing upon infelicitous wording. This is a beneficial reading and it tends to address the substance rather than the form of the decision.
He submitted that the respondent sought to read the decision in the letter literally to escape the consequences of the applicant's grounds of judicial review.
Mr Karp submitted that if the respondent were correct, the Delegate has committed a clear error or law mistaking the nature of the decision pursuant to r 2.05 paragraph 4 and thereby asking the wrong question. The effect of the error is to substitute a less definite finding, ie. one as to satisfaction, with a more definite finding at a higher degree of probability, ie one as to fact. As a result of that the applicant sought to add an additional ground, namely the ground about whether the Tribunal asked itself the wrong question.
I was also referred to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VOAO and VOAP (2005) FCAFC 50. The decision in VOAO is, with respect, a very useful decision. It is one where the Full Court of the Federal Court upheld a decision by Walters FM that had held that a decision of the Refugee Review Tribunal is vitiated by three jurisdictional errors; making a finding for which there was no evidence, denial of procedural fairness in relation to material contained in Country Information, and an incorrect decision about s.91R.
At paragraph 5 of the Full Court expressed with approval an acceptance by counsel for the appellant Minister that:
An error of law will be established if it appears that the Tribunal has made a finding of fact or has drawn an inference without any supporting probative evidence. I also accept that this error will amount to jurisdictional error if the Tribunal's decision is not based on such a finding.
Their Honours go on to say:
In our opinion this is such a case although the application of principle is here complicated by the circumstance that the relevant finding was of a negative rather than a positive character.
The short facts that are relevant here, or that are cited to me as being relevant to this decision, are the fact that the Tribunal originally referred to 2001 Country Information and then referred to a later edition, 2002 Country Information. The Tribunal in its decision said:
The Tribunal notes the country information about and remarks on the absence of any mention of either an event or an attitude that would support the applicant's claim that he was and would be persecuted as a Jew in Kyrghyzstan.
The jurisdictional error which the Court found was the reference to the absence of any mention of either an event or an attitude that would support the respondent's claim that he was and would be persecuted. That claim was simply wrong because the 2002 edition of the Country Information did contain a piece of evidence that was not in the 2001 Country Information and was directly relevant to the claim in that case. Their Honours quote that piece of evidence, which I quote now:
In March 2002 members of the county's Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrghyz from a loud speaker at a mosque in central Byshkhan. According to the Israeli Embassy in Almaty, the government is investigating.
Their Honours went on to say at paragraph 11:
It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably involvement in Judicial Review. However, the Tribunal did not undertake any such evaluation.

In finding an absence of any mention of an event that would support the male respondent's claim, the Tribunal ignored this statement. Whether or not the reported event occurred, the cited passage was certainly a mention of an event that, if it happened, was supportive of the male respondent's claim of fear of persecution on account of his Jewishness. Moreover, if it had happened, it was indicative of an attitude that would support that claim.
The Full Court found that that was a jurisdictional error. To my mind the case before me can be distinguished on its facts from VOAO.

I am not satisfied that the Delegate of the respondent Minister did ignore any relevant facts. The letter to the applicant informing him that his request had been denied was based on a submission which was set out in pages 79 to 83 of the Court Book. The submission contains a succinct but accurate summary of the applicant's submission at pages 80 and 81 of the Court Book. It was from that submission that the respondent's refusal was drawn. In my view it is clear that the respondent did take into account the relevant evidence submitted by or on behalf of the applicant.
I turn to the later point raised by Mr Karp of counsel about the respondent asking the wrong question. The letter, page 84 of the Court Book, contains a reason, allowing for the fact that reasons are not required to be given, saying this:
On the basis of information you have provided I am not satisfied that the circumstances represent a major change in your circumstances.
This has been taken by counsel for the applicant to mean that the Delegate agreed with some of the reasons agreed with some of the reasons set out in the assessment, or one of the reasons but not all of them. I'm not persuaded that that is the case. But it is relevant that the Court should look at the particular regulation. Paragraph 4 of r 2.05 says:
For subs 41(2)(a) of the Act the circumstances in which the Minister may waive the 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 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.
Quite clearly the request was in writing. It is noteworthy that there are two situations set out in paragraph 4 of the regulation. That under subparagraph 4 refers to:
Compelling and compassionate circumstances have developed over which the person had no control and that resulted in a major change to the person's circumstances.
Paragraph (b) sets out the situation if the Minister has previously refused to waive the condition. And that is that the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously.
Now, whilst the submission from the applicant refers to applications, on the evidence before me it appears that there was only the one. Because it was the original submission made on 28 September that was refused by the letter of 5 October 2004. The significance of this is that the satisfaction condition set out in r 2.05(4)(b) only relates to second and subsequent applications.
Where there is an original application to waive a condition paragraph (a) applies. And that, as Mr Karp of counsel submitted, involves the making of a finding of fact, not reaching a stage of satisfaction.

He submitted that in some cases where a matter of degree was for consideration, a finding of fact and a finding of satisfaction are not identical. Against this Mr Beech-Jones, of counsel, in his submission submitted that this was no more than a matter of labelling. With respect, I am not persuaded.
To my mind, in a situation such as that of the applicant, it is incumbent on the Delegate Minister to make a finding of fact and not a finding of satisfaction, because that is what r 2.05(4)(a) requires. It's only paragraph (b) that refers to the Minister being satisfied.
To my mind the reference to Secretary of State for Education and Science v Tameside Metropolitan Borough Council is apposite and I refer to a question in the judgment of Lord Wilberforce on page 1052 of the decision, at about point C on the page where his Lordship asked:
Is this a fact upon which the Secretary of State might legitimately form the judgment that the Authority was acting unreasonably?
It did occur to me at the time and I suggested to Mr Beech-Jones of counsel that that was the question to be asked. In my view that is the principle. In this case the regulation requires in the case of the first application a finding of fact, not a finding of satisfaction.
What I then must consider is whether on finding this error it is appropriate to issue orders in the nature of certiorari and mandamus and make a declaration that the decision is not a privative clause decision within the meaning of s.474 of the Migration Act. Such a finding is, of course, discretionary.
I look again at the letter containing the refusal and the reasons given, bearing in mind the fact that there is no requirement for reasons as such to be given. The letter says:
On the basis of information you have provided I'm not satisfied that the circumstances represent a major change in your circumstances.
The Court must, as is set out in Minister v Wu Sham Liang consider that:
An administrative decision should be read without an eye keenly attuned to error or with one focusing upon infelicitous wording.
The refusal letter refers to part of the assessment which forms the foundation of the submission that the visa should not be waived. The regulation whose criteria must be met in its relevant parts is set out in paragraph (a) which I will requote:
Since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed (1) over which the person had no control and (2) that resulted in a major change to the person's circumstances.
It is clear from the ordinary English meaning of the wording of the regulation that there are four conditions which are a prerequisite to the waiving of a condition such as an 8503 condition:
(1)    they must have developed compelling circumstances;
(2)    those circumstances must be compassionate;
(3)    they must be circumstances over which the person had no control;
(4)they must have resulted in a resulted in a major change to the person's circumstances.
The refusal letter sets out only one lack of satisfaction:
I am not satisfied the circumstances represent a major change in your circumstances.
To my mind that is infelicitous working because it is clear from the assessment contained on page 82 of the Court Book that the Minister has determined, the respondent has determined that none of the four necessary conditions have been met. Paragraph 6 says, on page 84:
If the answer to any of the following questions is no, then the visa holder fails to satisfy -
It says "a legislative criteria". It should of course say "a legislative criterion" as criteria is a plural word:
to have the 8503 visa condition waived: (a) if the client has previously had a request for a waiver of condition 8503 and the condition was not waived under circumstances provided on this new occasion substantially different to those considered previously.
The answer given by the officer there is not applicable. The circumstances are that this was not a second or subsequent request for a waiver:
(b) that the circumstances stated in the written request for waiver occur since the visa was granted.
The answer was yes.
(c) that the circumstances result in a major change to the client's circumstances.
The officer has put no.
(d) were the circumstances outside the visa holder's control?

Answer, no.
(e) are these circumstances compelling?
Answer, no.
(f) are these circumstances compassionate?
Answer, no. To my mind, apart from the unfortunate grammatical error to which I have referred, the assessment clearly sets out the requirements of the regulation. I note that the four prerequisites that have been set out are all answered in the negative, notwithstanding the fact that the refusal letter only refers to one of those four.
It is not appropriate for the Court to exercise its discretion to grant relief in these circumstances because such relief would be futile. Reconsideration, unless the facts were seen in such a way as to be completely reinterpreted from the way they had been seen before, would in all likelihood receive the four negatives that appear here.

And as the other three were answered in the negative even though not referred to in the letter, I am satisfied that a referral back to the Delegate would produce exactly the same result which would not lead to any further jurisdictional error.
To my mind, therefore, it is inappropriate for me to exercise my discretion in favour of the applicant.
It is fair to say that this was the most interesting application that I have heard for a while and on each side certainly the best argued I have heard for a considerable period of time. The submissions were well prepared, they were succinct, they were well researched on each side, counsel concentrated on the relevant points and, to their credit, produced a considerable amount of quite thought provoking argument in a relatively short period of time.
I can indicate now that when we adjourned yesterday when I left from the Bench, I was not in a position where I had formed any view as to which was the appropriate answer. As I said I would do, I considered the submissions at some length and I went through the material and I went through the authorities and it was not until I undertook that exercise that I arrived at the decision that I did, which indicates this was a case that was appropriate to be argued and that it was well argued. Both counsel and their instructors deserve a considerable amount of credit for the way in which this case has been conducted.
It is unfortunate that the Court at times has to deal with other cases of surprisingly little merit, whereas cases of this nature are ones that the Court is really here to decide. It is cases of this type that should be given Court time so that they may be argued properly.
As Mr McCrudden says, there was no Migration Review Tribunal hearing, the matter took less than half a day and it was argued appropriately and relevantly. Mr McCrudden has suggested the figure of $3000 which to my mind is a realistic and accurate figure.
I am mindful of the fact that the applicant himself is only a young man and not financially well off and even though that is not a major consideration in matters of this nature, to my mind this type of matter and the way it was prepared, the way it was argued, would indicate that a figure of $3000 in the circumstances is appropriate.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 27 April 2005