Lee v Minister for Immigration
[2006] FMCA 1052
•26 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v MINISTER FOR IMMIGRATION | [2006] FMCA 1052 |
| MIGRATION – Review of decision of a delegate refusing to waive a condition on a visa preventing a further substantive visa application in Australia – applicant engaged in family law proceedings in the Court at Parramatta – no meaningful consideration given to the consequences of interlocutory order made by the Court – jurisdictional error – refusal of relief in the exercise of discretion – futility as visa expired and final parenting orders made by the Court. |
| Family Law Act 1975 (Cth), s.121 Migration Act 1958 (Cth), ss.41, 46 Migration Regulations 1994 (Cth) |
| KJL & ISC [2005] FMCAfam 509 VBAP of 2002 v Minister for Immigration [2005] FCA 965 |
| Applicant: | KYUNG JA LEE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG184 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 26 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Court declares that, for the purposes of s.121(9) of the Family Law Act 1975 (Cth), the communication of the Court’s judgment in KJL & ISC [2005] FMCAfam 509 to and between the Minister, her officers and her legal representatives is necessary for the purposes of the present proceeding under the Migration Act 1958 (Cth).
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG184 of 2005
| KYUNG JA LEE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of a delegate of the Minister. The decision was made on 22 December 2004. The delegate declined a request for waiver of a condition 8503 attaching to a substantive visa then held by the applicant. The decision is judicially reviewable as it was not reviewable by a review tribunal and is not otherwise a non reviewable decision. The background to these proceedings is rather skimpily dealt with in the available material. It appears that the applicant has lived in Australia for significant periods dating back at least to 1998. She has probably over that period held several visas of various classes. During her periods of residence in Australia she married and a child was also born.
The applicant returned to Korea, apparently in 2003, with the child. Later the child was brought back to Australia by his father, who I am told, is an Australian citizen[1]. The applicant became concerned about the welfare of the child. In particular the applicant became concerned that the child was suffering abuse at the hands of his father. She obtained a temporary tourist visa to travel to Australia. She also instituted proceedings in this Court in its family law jurisdiction for parenting orders in relation to the child. She twice sought the waiver of a condition 8503 attaching to her tourist visa which prevented her from applying for any other substantive visa in Australia other than a protection visa. Both waiver requests were refused. This proceeding relates to the second refusal.
[1] I am told that the child is also an Australian citizen
I received as evidence the court book and supplementary court book filed respectively on 3 March 2005 and 5 June 2006. I am satisfied from that material that both waiver requests were made following the institution of family law proceedings in this Court. Between the first decision and the second, interim orders were made by this Court in its family law jurisdiction. Those orders were made on 8 October 2004 in the following terms:
(1)That pending further order, the child … born 16 April 1999 (“the child”) live with his father… (“the Father”).
(2)That pending further order, the child have contact with his mother … (“the mother”) as follows:
(a)On Sunday 19 September 2004 from 1.00pm to 2.00pm;
(b)thereafter each Sunday from 1.00pm to 3.00pm.
(3)That all contact under Order 2 take place at … (“the Church”), … in the presence of Pastor … .
(4)That the Father deliver the child to the Church at the commencement and collect the Child from the Church at the conclusion of each contact period.
(5)That the Father remain away from the Church during contact periods.
(6)That the Mother be and is hereby restrained from removing the Child from the Church during contact periods and from approaching the Child at any other place at any time, unless agreed.
(7)That each party be and are hereby restrained from removing and or causing, or allowing the Child to be removed from the Commonwealth of Australia.
(8)The Australian Federal Police place the name of the Child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch List until further order of the Court.
(9)That the Mother surrender the Child’s passport to the Court within 7 days and that passport remain in the custody of the Court pending further order.
(10)That a Child Representative be appointed for the Child in these proceedings.
Final orders were made by this Court on 29 September 2005 in the following terms:
(1)That all previous parenting orders be discharged.
(2)That the child BC born 16 April 1999 [“BC”] live with the father.
(3)That BC have contact with the mother as follows:
a)From 9.00am until 5.00pm on Saturday 1 October 2005 and Saturday 8 October 2005.
b)From 9.00am until 5.00pm on Saturday 15th October and Sunday 16th October 2005.
c)From 9.00am until 5.00pm on Saturday 29th October and Sunday 30th October 2005.
d)From 9.00am Saturday until 9.00am Sunday commencing
12 November 2005 and on each alternate weekend until the end of Term 4, 2005.e)For 3 periods of 3 days and 2 nights during the Christmas school holidays in 2005/6 at times to be agreed between the parties, and failing agreement by the last day of Term 4, from 9.00a.m. on Thursday 29 December 2005 until 5.00pm on Saturday31 December 2005, from 9.00am on Thursday 12 January 2006 until 5.00pm on Saturday 14 January 2006 and from 9.00am on Sunday 22 January 2006 until 5.00pm on Tuesday 24 January 2006.
f)From after school Friday until 5.00p.m. Sunday each alternate weekend starting on the first weekend of first term in 2006 provided that in the event BC is not attending school on a contact Friday, contact shall start at 5.00pm on the Friday and changeover shall occur in accordance with order (4) and the father shall notify the mother of such arrangement as soon as practicable.
g)For a period of 4 days and 3 nights in the second week of the first term school holidays in 2006 at times to be agreed between the parties, and failing agreement by the last day of Term 1, 2006, from 9.00am on the second Monday of the school holidays until 5.00pm on the second Thursday of the school holidays.
h)From the school holidays at the end of Term 2 in 2006, for one half of all school holiday periods, being the second half unless otherwise agreed between the parties starting at 5.00pm on the second Saturday of the holidays for the short school holiday periods and ending on the last Sunday at 5.00pm and starting at 5.00pm on day 20 of the Christmas school holidays (Day 1 being the first full day of the holidays) and ending on the last Sunday of the school holidays at 5.00pm.
i)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2005 and each alternate year thereafter and from 3.00pm Christmas Day until 5.00pm Boxing Day in 2006 and each alternate year thereafter.
j)For Soul, Korean New Year celebrations, from 2007 and each alternate year thereafter.
k)For Chusok, the Korean harvest festival, from 2006 and each alternate year thereafter.
l)At additional or alternate times as agreed between the parties.
(4)For the purpose of contact changeover when such changeover does not occur at BC’s school, the father shall arrange for BC to be delivered to the mother at McDonald’s LC at the start of contact and the mother shall return BC to the father at McDonald’s LC at the end of contact.
(5)In the event Father’s Day falls on a contact weekend, then the child shall return to the father at 9.00am on Father’s Day.
(6)In the event Mother’s Day falls on a non-contact weekend, then the child shall have contact with the mother from 9.00am until 5.00pm on Mother’s Day.
(7)In the event BC has contact with the mother during the first half of any Christmas school holiday period, BC shall live with the father from Christmas Day at 3.00pm until 5.00pm Boxing Day in 2005 and alternate years thereafter and from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2006 and alternate years thereafter.
(8)That BC have reasonable telephone contact with the parent with whom he is not residing, such telephone contact to be facilitated by the resident parent in private.
(9)That both parties will ensure that the other party is kept informed of:
a)Any significant medical event involving BC, whether illness or accident, including details of diagnosis, treatment and any medication prescribed.
b)Any progress or disciplinary reports from the school concerning BC.
c)All special events in which BC is involved.
d)Any other matter of significance relevant to BC’s welfare.
(10)That BC remain at LC Public School for the remainder of his primary education unless otherwise agreed in writing between the parties.
(11)That all weekend contact be suspended during school holiday periods and start again on the first weekend of each school term.
(12)That the mother and father in consultation with each other have responsibility for making decisions for the long term care welfare and development of BC.
(13)That each party have responsibility for the day to day care welfare and development of BC while in that party’s care.
(14)That the mother return to the father within 7 days:
a)Any passport in BC’s name, held by her;
b)The record of BC’s immunisations and medical history from the Hospital where BC was born.
(15)That each party be restrained from speaking or permitting any other person to speak to or about the other party or member of their household or family in a negative, offensive or unpleasant fashion in the hearing of BC.
(16)That each party advise the other and keep the other advised of their current street address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 3 days of any such change occurring.
(17)Until further order the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child BC born 16 April 1999 from the Commonwealth of Australia.
(18)The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
(19)Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
(20)The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
(21)That pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
(22)All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
(23)The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
(24)That all existing applications be otherwise dismissed and the matter be removed from the pending cases list.
Reasons were given. The case is reported as KJL & ISC [2005] FMCAfam 509. I have provided copies of the judgment and reasons of this Court to the applicant and the Minister. I have also made a declaration for the purposes of s.121(9) of the Family Law Act 1975 (Cth) in order to ensure that, for the purposes of this proceeding, the Court's family law judgment can be communicated between the Minister, her officers, and her legal advisers.
This morning the applicant sought a three month adjournment of the hearing of her judicial review application. That application was supported by an affidavit by the applicant filed in my chambers on 19 July 2006. The applicant was not required for cross-examination on her affidavit, which I received. In her affidavit the applicant makes allegations against her former solicitor, Mr Christopher Levingston. She sought the adjournment in order to obtain alternative legal representation.
Mr Levingston's firm filed a notice of withdrawal on 14 July 2006. That notice was accompanied by an affidavit, filed on the same day, made by Joanne Jennifer Kinslor. I am satisfied on the basis of that affidavit and the notice that Mr Levingston's firm has withdrawn from the record in accordance with the rules of this Court. Mr Levingston attended Court this morning at my request. He also gave evidence in relation to the adjournment application. He was not required for cross‑examination. I accept from Mr Levingston's evidence that there was a misunderstanding between him and the applicant as to her wishes. As a result of that misunderstanding, the applicant lost confidence in Mr Levingston and withdrew her instructions. That is why he withdrew from the record. Mr Levingston stated, however, that he remained willing and able to assist the applicant if she changed her mind.
Notwithstanding some indications to the contrary (after Mr Levingston had left Court) the applicant continued to state her dissatisfaction with Mr Levingston. Nevertheless, there is no persuasive evidence before me of any relevant default by Mr Levingston in the conduct of the proceeding before this Court. The applicant's decision to terminate her instructions to Mr Levingston was one she was entitled to make. I was, however, unpersuaded that sufficient reason had been advanced for the adjournment of today's hearing. I refused the adjournment application.
The judicial review application before the Court was filed on 20 January 2005. The applicant sets out four grounds. The first is that the Minister's Department failed to give the application to waive condition 8503 a proper and genuine consideration on its merits. The second is that the department failed to interpret regulation 2.054 so as to give effect to Australia's international human rights obligations such as those contained in the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, those rights being not explicitly excluded by statute. Thirdly, the application asserts that the Department's interpretation that the requirement set out in regulation 2.054 that since the person was granted the visa that was subject to the condition, circumstances have developed over which the person has no control, as excluding circumstances arising in Australia, without specific reference to the applicant's facts and circumstances, and in particular proceedings in the Federal Magistrates Court with respect to the “custody” of her natural Australian citizen child, is the application of a rule or policy without regard to the merits of the application. Finally, the application asserts that the Department failed to properly set out the basis upon which the request for waiver of condition 8503 was rejected.
Mr McInerney prepared an outline of written submissions on behalf of the Minister in relation to the issues arising from the judicial review application. Relevantly, those submissions are:
This is an application for judicial review of a decision of a delegate of the respondent to refuse to waive the 8503 condition that was imposed on the applicant’s visitors visa (class: TR-676).
Schedule 8 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”) sets out the terms of condition 8503. Condition 8503 is that:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
Section 41(2A) of the Migration Act 1958 (Cth) (“the Act”) provides:
The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in para 2(a) with which a particular visa is subject under regulations made for the purposes of that paragraph or under subs(3).
Schedule 2 of the Migration Regulations, amongst other things, makes provision with respect to visas within the sub-class 676 “Tourist Short Stay”. Under item 676.6 headed “Conditions” provision is made for the imposition of condition 8503.
Section 46(1A) of the Act is relevant and provides:
Subject to sub-section (2) an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b)since last entering Australia the applicant has held a visa subject to a condition described in paragraph 41(2A); and
(c)the Minister has not waived that condition under sub-section 41(2A); and
(d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
Regulation 2.05 concerns the conditions applicable to visas. Sub‑regulation 2.05(4) sets out the circumstances in which the Minister may waive conditions of the kind referred to in para 41(2A) of the Act.
Sub-regulation 2.05(4) states:
For sub-section 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 a person asks the Minister to waive the condition, the request is in writing.
In order to succeed in her application for waiver of the condition attached to her visa, the applicant had to satisfy each of the disjunctive elements of the criteria contained in subregulation 2.05(4), about which the respondent had to reach a state of “satisfaction” (e.g. the change of circumstances was “compassionate” or “compelling” or “outside the visa holder’s control”, etc).
MIMA’s internal minute (SCB 17-19) makes clear that the applicant failed to satisfy the respondent with respect to each of the following elements of the relevant criteria:
(a)the circumstances had occurred since the visa was granted;
(b)the circumstances had resulted in a major change to the applicant’s circumstances;
(c)the circumstances were compelling.
In order to succeed before the Court, it is necessary for the applicant to demonstrate that there was jurisdictional error on the part of the respondent with respect to each of those elements of the criteria, failing which a conclusion by this Court that there was a jurisdictional error on the part of the respondent will not vitiate the decision made by the respondent.
The application filed with the Court does not disclose any challenge to each of the three independent and alternative bases upon which the respondent’s decision can be sustained.
In the absence of a successful challenge to each of the three elements identified the application must fail.
In circumstances where the decision is based on alternative and independent grounds, relief will not issue: VBAP of 2002 v Minister for Immigration [2005] FCA 965.
None of the matters raised in the application disclose jurisdictional error on the part of the respondent.
The application should be dismissed with costs.
To the extent that the first ground in the application is an assertion of bias or bad faith, it fails. The court book discloses a genuine and sincere attempt by the delegate to exercise his powers. The fourth ground must also fail. Pages 22 to 25 of the first court book set out the decision of the delegate and the reasons for it. Those reasons adequately explain the decision of the delegate. The third and fourth grounds in the application remain arguable. The first ground is also arguable to the extent that it asserts a failure to give meaningful consideration to the application for waiver of the condition.
The problem with the delegate's decision is that he gave inadequate consideration to the proceedings in this Court in its family law jurisdiction. The applicant had raised very serious issues of child abuse in that proceeding. The delegate correctly noted that the issue of child abuse had been raised in the first request for a waiver of the condition and concluded that the second request was not substantially different from the first request. However, the delegate was aware of the proceeding in this Court in its family law jurisdiction and the fact that interim parenting orders had been made. The delegate paid no regard to the parental obligations imposed upon the applicant by those interim orders. Those orders could and, in my view, should have been accepted as rendering the second request substantially different from the first.
Secondly, the delegate found that the circumstances advanced by the applicant were not compelling. The delegate noted that the interim orders of this Court placed the applicant's child with his father, and noted that the applicant could apply to re-enter Australia from Korea. However, there was no meaningful consideration of the parental obligations imposed upon the applicant by the interim orders of this Court and the inability of the applicant to meet those obligations in Korea. Neither was there any recognition that the interim orders of this Court were not based upon a thorough testing of the evidence. The serious issues of child abuse had not, at that stage, been dealt with in any conclusive way.
It might have been better if the delegate had waited until the final orders of this Court had been made. The delegate was probably entitled to make a decision at the time he did, but in making the decision at the time he did, he failed to give any meaningful consideration to the impact of this Court's interim orders. That failure, in my view, constitutes a jurisdictional error. Nevertheless, I will withhold relief as sought by the applicant in the exercise of discretion for two reasons. Both relate to the futility of providing relief.
The first reason is that the temporary tourist visa held by the applicant to which the visa condition attached, has, I understand, expired. The applicant currently holds a bridging visa E, which was granted on 24 November 2005. There would be no point in requiring further consideration of a request to waive a condition attaching to a now expired substantive visa.
Secondly, this Court has now dealt with the allegations of child abuse in its family law jurisdiction. That decision is subject to appeal in the Family Court. However, until such time as the orders made by this Court are disturbed by the Family Court, I proceed on the basis that the orders made by this Court were properly made. The allegations of child abuse directed by the applicant at the child's father were substantially rejected.
The Court's orders included an order that the child live with his father. The Court made some critical observations about both parents. The applicant was made subject to orders for contact between her and the child at specified times. The Court noted, at paragraph 58 of its reasons, that further proceedings might occur if the applicant were required to leave Australia. Order 17 made by the Court restrains the applicant and the child's father from removing or attempting to remove the child from Australia.
The Court, having dealt finally and comprehensively with the issues leading to the waiver request made by the applicant, it would be pointless, in my view, to require further consideration of the waiver request based upon the proceeding in this Court in its family law jurisdiction. That said, it is important that the Minister and her officers understand the impact that their actions may have upon the parental obligations of this applicant. She requires the opportunity to remain in Australia to participate in her appeal to the Family Court. She has continuing parental obligations to exercise contact with her child pending that Court's orders.
If the applicant is placed in immigration detention or is removed from Australia by the Minister's officers she would be prevented from complying with the existing orders. That consequence needs to be considered by the Minister and her officers in making future decisions concerning the applicant. Not only is there potential for further proceedings in this Court in its family law jurisdiction as a consequence of steps that might be taken by the Minister's officers, there is also the potential for further proceedings in this Court in its migration jurisdiction.
The applicant has rights which she may exercise if she is placed in immigration detention and refused a further bridging visa. It is also open to the applicant to seek to restrain any foreshadowed attempt by the Minister's Department to remove her from Australia. The applicant will have the opportunity in future, if necessary, to exercise her rights.
It is not necessary for me to make any orders at this stage other than to dismiss the judicial review application, which I so order, and to deal with the costs of it.
The application having been dismissed, costs should follow the event. Ms Rose, on behalf of the Minister, sought scale costs, but the Court's scale in relation to migration proceedings only applies in relation to applications filed on and from 1 December 2005. The applicant did not wish to be heard on costs. In my view, a proper party-party assessment of costs in this matter is $4,000.
I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 August 2006
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