Leegel v Minister for Immigration
[2006] FMCA 37
•3 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEEGEL v MINISTER FOR IMMIGRATION | [2006] FMCA 37 |
| MIGRATION – Non–reviewable decision of Minister’s delegate – application for waiver of condition – no further stay condition 8503 – failure to ask the right question – failure to address legislative process – jurisdictional error – delegate’s decision set aside – matter remitted for consideration according to law. |
| Adoption Act 1984 Migration Act 1958, s.41 Migration Regulations 1994, reg.2.05 |
| Craig v South Australia (1985) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLA 323 |
| Applicant: | HELEN LEEGEL (BY HER NEXT FRIEND, ANNE LEEGEL) |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1182 of 2004 |
| Applicant: | HELEN LEEGEL (BY HER NEXT FRIEND, ANNE LEEGEL) |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 583 of 2005 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 19 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Kissane |
| Solicitors for the Applicant: | Stephen Peter Byrne |
| Counsel for the Respondent: | Mr. Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
MLG 1182 of 2004
Leave granted to substitute Anne Leegel as next friend for Stephen Peter Byrne.
Leave granted to substitute the “Minister for Immigration and Multicultural Affairs” as Respondent.
The application for review filed on 19 August 2004 is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.
MLG 583 of 2005
The Respondent’s decision made on 21 April 2005 refusing to waive condition 8503 is set aside.
The matter is remitted to the Respondent for determination according to law by a different delegate.
The Respondent pay the Applicant’s costs fixed in the sum of $8,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1182 of 2004
| HELEN LEEGEL (BY HER NEXT FRIEND, ANNE LEEGEL) |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
MLG 583 of 2005
| HELEN LEEGEL (BY HER NEXT FRIEND ANNE LEEGEL) |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background to the two applications before the Court
The Applicant, who is 7 years old (born 13 October 1998) is a citizen of Papua New Guinea (PNG). On 27 November 2002 she was adopted, under the laws of PNG, by her aunt, Ms Anne Leegel and her aunt’s husband Mr Eric Leegel. She is presently under their care here in Australia.
On 25 May 2004, the Applicant, through her adoptive mother, lodged an application for a tourist visa with the Australian High Commission in Port Moresby. Her adoptive mother signed the application form on her behalf under a declaration which relevantly stated that:
“…
·My intention to visit Australia is genuine and I will abide by the conditions and period of stay of the visa.
·I understand that the effect of the 8503 visa condition is that it will not be possible for me to apply to remain in Australia beyond the authorised period of stay shown on my visa label. I agree to having this condition included on any visa issued to me as a result of this application.
·I acknowledge that I understand that if the 8503 visa condition is imposed on my visa, it will be indicated on the visa label by the condition code ‘8503’ and by the short description ‘No Further Stay’. I acknowledge that this means that the 8503 condition has been imposed on my visa, that I am required to depart Australia on or before the date or time period notified on my visa label and that I understand the restriction that Condition 8503 places upon me
A delegate of the respondent granted the Applicant a one-month tourist visa on 3 June 2004 and, on 6 June 2004, the Applicant entered Australia. The Applicant’s visa was subject to condition 8503.
First application — MLG 1182 of 2004
On 15 June 2004, the Applicant’s adoptive mother lodged with the Department of Immigration and Multicultural and Indigenous Affairs a request that, in relation to the Applicant’s visa, condition 8503 be waived.
On 29 June 2004, a delegate of the Respondent decided not to waive condition 8503. The delegate in written reasons for that decision relevantly stated that:
“Condition 8503 prevents a visa holder from making an application for any further visa (other than a Protection visa or Bridging visa) while in Australia. If this seems strict, it is important to bear in mind that it allows some visas to be granted which would otherwise be refused outright because the decision maker considered that there was a risk that the applicant would seek to remain permanently in Australia. In other words, the alternative to having a visa with this condition is usually not to have the visa at all.
There is provision in migration law for condition 8503 to be waived, but only if the legally prescribed criteria are met. These criteria are set out in Migration Regulation 2.05, as follows;
‘… 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.’
As you can see from this, in order for a waiver to be granted, the law requires that compelling and compassionate circumstances which represent a major change in a person’s circumstances and which were beyond the person’s control must have arisen since the time of visa grant.
Your request for a waiver of the condition on Helen’s visa is based on the fact that you and your husband have adopted her in PNG and now wish her to live with you in Australia, even though she has spent the first 5 years living with her birth family in PNG. I understand why you want Helen to live here, but in order for the ‘no further stay’ condition to be waived the strict conditions (above) have to be met. It is clear from the documents you have provided that the adoption order was issued in 2002, well before Helen’s visa was granted, so it cannot represent a change since visa grant. On the basis of the information available to me, I am unable to see any substantial change since the visa was granted. Also, the Australian High Commission in Port Moresby has advised me that the ‘no further stay’ condition was explained to you when you obtained a visitor visa for Helen and that you indicated that you understood what it meant.
Therefore, after considering all the information before me, my decision is that condition 8503 cannot be waived in this case. This decision is not merits reviewable.” [original emphasis]
In summary, the delegate found that the adoption predated the application for the visa and noted that the affect of condition 8503 was explained to the adoptive mother prior to the visa being granted with that condition imposed.
The Applicant then sought review of this decision before the Federal Court, which on 3 September 2004 transferred the proceeding to this Court.
Second application — MLG 583 of 2005
Ms Anne Leegel, who was originally a citizen of PNG, obtained Australian citizenship. Prior to doing this, at the request of the Respondent’s departmental officers, she removed Helen Leegel’s name from her citizen application.
Both Ms Anne and Mr Eric Leegel applied to the County Court at Melbourne on 10 August 2004 for a declaration under the
Adoption Act 1984in order to have the foreign adoption recognised in Victoria. This Application was withdrawn with the leave of the Court on 31 March 2005.
On 14 April 2005 a further application for waiver of condition 8503 was made. This application was made to enable the processing of an orphan visa application which was made at the same time. The Application to waive the 8503 condition was refused on 21 April 2005.
In his correspondence to the Applicant’s representative dated 21 April 2005, the delegate referred to the representative’s written request for waiver of condition 8503. He set out sub–reg.2.05(4) of the Regulations in full. He then stated that:
“Your request for waiver includes the following matters which you state have occurred since my previous decision not to waive condition 8503:
·that Helen was ‘removed’ from an application for Australian citizenship by Mrs Anne Leegel
·that an attempt by Mr and Mrs Leegel to have the PNG order of ‘adoption’ for Helen recognised in Victoria has been unsuccessful
·that Helen has now been “absorbed into a lifestyle” in Australia such that she could not return to her former life in PNG
You have also claimed that Eric and Anne Leegel “were under the impression that Helen was visaed for travel to Australia and remain” and that Helen “cannot return to PNG because her natural parents have not been and continue to be incapable of caring for her now or in the future.”
I am unable to see why the removal of Helen from a citizenship application – I assume she was considered ineligible for grant of recognition of Australian citizenship because she is not a permanent resident of Australia and because of the non–recognition of the overseas ‘adoption’ order – would constitute a circumstance justifying waiver of the 8503 condition. Nor can I see how the denial of recognition of the PNG order supports the case for waiver of the condition. If anything, the refusal of a Victorian court to recognise the PNG order raises questions as to the legal validity of that order and whether it could be said to have properly considered the child’s natural family situation and her best interests. There is no independent evidence available to me to support your contention that Helen’s birth family were or are incapable of looking after her or that she could not return to live with them in PNG.
I acknowledge that Helen may now have become used to her new life in Australia, but as she has lived here for less than 12 months, compared to more than 5 years she lived in PNG, and as she is still a very young child, I am not persuaded that it would be difficult for her to resume her former lifestyle in her home country with her natural family.
Accordingly, I am not satisfied that there are “compelling and compassionate” circumstances for waiver of condition 8503 in this case and I refuse to waive the condition. This decision is not merits reviewable.
In response to your letter. I wish also to point out that Eric and Anne Leegel explicitly supported an application for a Visitor visa and provided a letter indicating that Helen would be making a visit only to Australia, and that system notes indicate that the ‘no further stay’ condition was explained and understood (in addition to being explained on the visa application form).”
Review of this decision was also sought and is the second application to this Court.
The legislative framework
Subsection 41(1) of the Migration Act 1958 (the Act) states that the Migration Regulations 1994 (the Regulations) may provide that visas are subject to specified conditions.
Subsection 41(3) of the Act provides that, in addition to any conditions specified by ss.41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations.
Sub–regulations 2.05(1) and (2) of the Regulations state that:
“(1) For the purposes of subsection 41(1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.
(2) For the purposes of subsection 41(3) of the Act (which deals with conditions that may be imposed on a visa), the conditions that the Minister may impose on a visa are the conditions (if any) referred to as being conditions that maybe imposed in the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.”
The conditions which apply to or may be imposed on a tourist visa are set out in div.676 of pt.676 of Schedule 2 to the Regulations. Condition 8503 is a condition that may be imposed on a tourist visa.
Condition 8503 is set out in Schedule 8 to the Regulations and states 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.”
Subsection 41(2A) of the Act provides that, in prescribed circumstances, the Minister may waive visa conditions such as condition 8503.
Those prescribed circumstances are set out in sub–reg.2.05(4) of the Regulations, which states that:
“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.”
Applicant’s contentions
The Applicant contends that the delegate decisions were affected by jurisdictional error in that he failed to ask the right question or, in assessing what comprised “compelling and compassionate circumstances”, he took into account irrelevant considerations or failed to take into account relevant considerations and as a consequence made errors going to jurisdiction of the type set out in Craig v South Australia (1985) 184 CLR 163.
In respect of the first application, the Applicant contends that the delegate took into account an irrelevant consideration by having regard to the delegate’s understanding that the meaning of condition 8503 was explained to Ms Leegel before the issue of the visa.
The power conferred by s.41(2A) of the Act can be exercised in prescribed circumstances, as set out above, which must exist to enliven the power to waive. In my view, the power was not enlivened as the delegate was of the opinion that the prescribed circumstances did not exist.
Sub–regulation 2.05(4) of the Regulations requires that the delegate consider the development of compelling and compassionate circumstances since the grant of the visa. [my emphasis]
The delegate made a clear finding, open to him on the facts, that the proposed ground for the waiver of condition 8503 as stated by the Applicant, being her adoption, was an event which predated the granting of the visa and, therefore cannot be the prescribed change in circumstance occurring after the visa was granted. Having found that there was no such change, the delegate could not be satisfied that the Applicant met the prescribed circumstances for the exercise of his discretion to waive condition 8503. The delegate need not have gone any further. Any reference to additional matters, such as Ms Anne Leegel’s knowledge and understanding of condition 8503, could not alter the delegate’s substantive and threshold assessment once it had been made. As such, any error with respect to the delegate’s consideration of Ms Anne Leegel’s comprehension of condition 8503 could not affect the delegate’s exercise of power and would not give rise to any jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLA 323 at [82]).
In considering the first application for waiver of condition 8503, the delegate clearly understood the question that he had to answer.
The Applicant also took issue with fact that she was a minor and could not have known herself, or indeed through the medium of her adoptive mother, known the significance of condition 8503 and therefore, it should not have been imposed. The Applicant went further and said that she should not be bound by her adoptive mother’s conduct in that regard.
The delegate’s power to impose condition 8503 on the Applicant’s tourist visa was derived from the Act and the Regulations. Nothing in the Act or the Regulations prohibited the delegate from exercising his power to impose condition 8503 on the Applicant’s tourist visa as a consequence of her age. The imposition of condition 8503 was a matter for the delegate and does not give rise to any reviewable error.
The first application for review in proceeding number MLG 1182 of 2004 should be dismissed.
In respect of the second application for review, the Applicant contends that:
a)
the delegate based his decision on non–existent material.
The basis for this contention was the lack of documentary evidence in the Court Books that supported the delegate’s assertions that the adoptive mother had been informed of the purpose and Affect of condition 8503. Because there was no such evidence, it was contended, I could draw the inference that there was no such explanation given and that the delegate had determined this issue on non–existent material. In doing so, he had committed a jurisdictional error;
b)in similar vain, there was no supporting documentary evidence in the Court Books for the delegate’s finding that a letter was provided on behalf of the Applicant indicating that she would only be making a visit to Australia;
c)the delegate’s assertions that the adoptive mother was informed about the condition was an irrelevant consideration by the delegate that infected his reasoning and constitutes a jurisdictional error;
d)the delegate failed to consider whether the failure of the recognition of the adoption of the Applicant under Victorian Law amounted to compelling and compassionate circumstance. This was something over which the Applicant had no control. The Applicant emphasised that this situation arose since the condition was imposed and arose since the first application for waiver was made. The failure of recognition of adoption, it was contended, means that various avenues that would have been open to the Applicant to allow her to stay are not open. It was submitted that this is a significant change in circumstance. It was then incumbent on the delegate to consider whether compelling and compassionate circumstances exist as a consequence. It was submitted that the delegate did not ask himself this question but merely stated that, if anything, the refusal of a Victorian Court to recognise the adoption raises questions of its legal validity, an inference drawn by the delegate without any apparent basis. The delegate also simply stated that he cannot see how the denial of recognition of the PNG adoption orders supports the case for a waiver. However, it was contended that it was this very condition that led the Applicant to seek to have the 8503 waiver reconsidered as such a waiver is necessary to successfully apply for a substantive visa;
e)the delegate also erred in stating that he required independent professional evidence that the Applicant’s natural parents were unable to care for her in PNG. This was the claim put forward by the Applicant’s representative. It was contended that there was no reason not to consider this as an accurate account of the situation. In rejecting it the delegate has failed to take account of relevant material put forward in support of the case for a compelling and compassionate circumstance;
f)the delegate has also failed to consider whether, given the adoption had not been recognised, this together with the Applicant’s personal circumstances amounted to a compelling and compassionate circumstance; and
g)no reasonable decision maker would find that the changed circumstances as constituted by the removal of the Applicant’s name from her adoptive mother’s citizenship application and the refusal of the Victorian Court to recognise the PNG adoption were not a compelling and compassionate circumstance – a Wednesbury unreasonableness argument.
In developing the contentions, Counsel for the Applicant submitted that, whilst acknowledging the delegate correctly set out the tests to be met, the delegate in concluding that he is “unable to see why the removal of Helen from a citizenship application would constitute a circumstance justifying waive of the 8503 condition”, in effect, failed to ask the right question. He has given, it was submitted, no more than lip service to the test, and when it comes to the particular claims about the removal of the name from the citizenship application and the
non–recognition of the adoption, the delegate simply has considered these changed circumstances as irrelevant and has not considered whether they amount to a compelling and compassionate circumstance.
In respect of the changed circumstance of the Applicant’s name being taken from the citizenship application, he does not canvass the likely affect on the Applicant, namely that as a consequence of the name removal, the child would not be able to automatically regularise her situation. Similarly, in respect of the non-recognition of the adoption, the consequence may be that the Applicant would be denied the opportunity of remaining in Australia and able to normalise the reality of her situation. By simply saying that he cannot “see how the denial of recognition of the PNG order supports the case for waive of the condition” the delegate simply did not ask the right question. It was submitted that the delegate did not in his reasons address and evaluate the consequential affects and how they might, or might not, constitute a compelling and compassionate circumstance.
As a consequence of the above it was submitted that the delegate has made errors going to jurisdiction of the type set out in Craig v South Australia (1995) 184 CLR 163.
The Respondent contends that the Applicant by her contentions seeks an impermissible merits review of the delegate’s decision.
Having read the delegate’s reasons for refusal, I am persuaded that on the face of it the delegate has failed to ask the right question; namely do any of the changed circumstances, separately or cumulatively, amount to a compelling and compassionate circumstance. The legislative imperative having been enlivened by accepted changed circumstances, it fell to the delegate to ask whether those changed circumstances amounted to the development of a compelling and compassionate circumstance. The tone and language of the delegate’s reasons were dismissive and not indicative of a mind that had addressed this mandatory question invoke by the legislation. In my view, the Applicant’s contention that the language was conducive to the conclusion the delegate considered the changes as irrelevant is one with which I agree. The delegate seems not to have turned his mind to the next mandatory consideration, namely did these changed circumstances constitute a compelling and compassionate circumstance.
For the above reasons, I find that there has been an error as to jurisdiction and that the decision to refuse the waiver of the condition made on 21 April 2005 should be set aside.
In light of the above finding, I need not address the other contentions of the Applicant.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date:3 February 2006
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