Lubaton v Minister for Immigration
[2008] FMCA 16
•15 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LUBATON v MINISTER FOR IMMIGRATION | [2008] FMCA 16 |
| MIGRATION – Review of decision of a delegate of the Minister – refusal to waive Condition 8503 imposed on the applicant’s Tourist (subclass 676) (Short Stay) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), s.91X Migration Regulations1994 (Cth), reg.2.05(4), condition 8503 |
| Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 Re Vanstone; Ex Parte Auva’A (2003) 134 FCR 379 Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335 Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 |
| Applicant: | EVANGELINE LUBATON |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 2851 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tagalog interpreter |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 5 October 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2851 of 2006
| EVANGELINE LUBATON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant, Evangeline Lubaton, is a citizen of the Philippines and was born in 1974. Ms Lubaton was granted a Tourist (subclass 676) (Short Stay) visa on 26 June 2006 and travelled to Australia as a tourist on a ten day package tour. A condition of the visa granted to
Ms Lubaton was Condition 8503. After her arrival in Australia,
Ms Lubaton formed a relationship with a fellow Filipino, Mr Rodrigo Rivera, who was resident in Australia. Mr Rivera has two dependent children for which he holds full custody and responsibility.
Ms Lubaton assumed responsibility for Mr Rivera and his children in the domestic environment.
On 5 September 2006, Ms Lubaton applied to the Department seeking a waiver of Condition 8503 to enable her to remain in Australia with her partner and his children. By letter dated 28 September 2006, the Department advised that her request for a waiver had been denied and that the Condition remained in effect. As that decision is not reviewable by the Migration Review Tribunal, Ms Lubaton seeks judicial review in this Court.
A Court Book (“CB”) prepared and filed by the respondent’s solicitors is marked Exhibit “A”. This document was read into evidence. An affidavit of Evangeline Lubaton sworn on 23 November 2007 was filed in these proceedings. Objections to paragraph [3], [4] and [5] of that affidavit were raised on the ground of relevance and consequently the balance of the affidavit was read into evidence.
Relevant legislative provisions
Condition 8503 of the Regulations states:
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.
Regulation 2.05(4) of the Regulations states:
(4)For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
Consideration
Request for waiver of Condition 8503
On 5 September 2006, the applicant filed a request for waiver of Condition 8503 which is effectively summarised in the delegate’s decision:
Since the visa grant, the client seemingly has formed a relationship and states she is required to look after the welfare of her partner and his children by bringing them to school at 9.00am and to pick them up from childcare before 6.00pm because of her partner’s work schedule who works at a hotel on a shift basis. She is also required to cook for her partner and prepare the children’s lunch and school uniforms/basic needs. Subsequently, the client would like to make an application for a visa to remain/extend their stay in Australia. (CB 10)
Delegate’s assessment
The delegate’s decision sets out each of the legislative criteria required to be satisfied in order to grant a waiver of the Condition. As this was the first application seeking a waiver, the provision in respect of previous applications was not relevant. The delegate was also satisfied that the applicant’s circumstances had changed since the visa was granted and were significant. However, in respect of the following issues, the delegate found that Ms Lubaton failed to satisfy the legislative criteria:
(d) Were the circumstances outside the visa holder’s control?
(e) Are these circumstances compelling?
(f) Are these circumstances compassionate?
On 28 September 2006, the delegate decided to refuse to waive Condition 8503 as her circumstances were not compelling nor was there a compassionate change in the circumstances. The delegate found that Ms Lubaton had entered into a relationship with Mr Rivera and his family voluntarily rather than out of necessity. The delegate was not satisfied that this qualified as compassionate circumstances.
The Court notes that Ms Lubaton gave birth to a daughter on
2 June 2007. A subsequent request for a Condition 8503 waiver was lodged with the Department after the birth and rejected on
10 August 2007. It was pointed out to the applicant that at the time the delegate considered the request, he was unaware of the applicant’s pregnancy and that that had no bearing on the decision. I explained to the applicant that the decision of the delegate was limited to the information before him at the time of the decision. Any subsequent events would not be taken into account by this Court when considering whether any jurisdictional error occurred in the delegate’s decision-making process.
Ground one
The Department of Immigration and Multicultural Affairs (the Department) failed to address the circumstances of the applicant as per details of applicant’s reason for requesting a waiver of the 8503 (No Further Stay) condition lodged on 5 September 2006.
Mr Smith, appearing for the respondent, indicated that the delegate had regard to a minute prepared by a Departmental officer for the purposes of the decision. That minute summarised the applicant’s request
(CB 10). I agree that the delegate addressed each of the legislative criteria required to be considered for a Condition 8503 waiver application. In circumstances where there is no provision within the Migration Act 1958 (Cth) (“the Act”) requiring a decision-maker to give reasons for deciding not to waive the condition, I am satisfied that the Act and Regulations have been complied with. This ground cannot be sustained.
Ground two
The Department erred in law by determining that the applicant failed to satisfy Regulation 2.05(4) and acted in bad faith without taking into consideration the compelling and compassionate circumstances which have arisen since the applicant was granted the visa that was subject to the condition, over which the applicant had no control, and that resulted in a major change to the applicant’s circumstances.
Mr Smith submits that there is no basis for any allegation of bad faith as the ground simply sets out the pre-conditions for the discretion to waive the condition: Re; Vanstone; Ex Parte Auva’A (2003) 134 FCR 379. It is submitted that one of the delegate’s reasons for refusing to waive the condition was that he did not find compelling circumstances had arisen. Consequently, it cannot be said that the delegate failed to consider this issue. I agree with the submission made by Mr Smith that this ground cannot be sustained.
Ground three
The Department erred in law in misinterpreting the requirements for waiving the 8503 condition contrary to the requirements of the Migration Regulation 2.05.
Mr Smith submits that what is required to be considered under the Reg.2.05 is whether compelling and compassionate circumstances have developed since the original grant of the visa, see Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 at [13] per Hill J:
13.What is required to be considered under the regulation as in force at the relevant time is that compelling and compassionate circumstances have developed since the original grant of visa subject to condition. If compelling and compassionate circumstances did develop then it would be immaterial that that development was capable of being anticipated. While I have not heard any argument on the question it would probably likewise be immaterial that the circumstances developed even though they were subject to control on the part of the applicant.
Mr Smith submits that although attempts have been made to explain what is meant by “compelling and compassionate” (Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590), it is not necessary to do so in light of the plain words of the Regulation: Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335 at [25] per Kenny J. Mr Smith further submits that in this matter, the delegate gave reasons which were consistent with the terms of the Regulations and displayed that he did not misunderstand them. I agree with Mr Smith and this ground cannot be sustained.
Ground four
The Department failed to consider the care and assistance needed by the partner’s children, aged six and a half years and five and a half years, as stated in the applicant’s waiver request form, namely:
Katrina Isabelle Laino Rivera – born 26 April 1999;
Austin Gabriel Rivera – born 20 December 2000
And also failed to take into consideration the applicant’s partner’s circumstances.
I agree with Mr Smith’s submission that the minute considered by the delegate in arriving at his decision sets out all the circumstances put forward as to why the condition of Ms Lubaton’s visa should be waived. A claim that the delegate failed to consider these issues is not supported by the contents of the decision and this ground should be dismissed.
Ground five
Contrary to the Department’s promise to reply within two (2) weeks to the applicant’s request lodged on 5 September 2006 by hand, the reply dated 28 August 2006 was not received until 3 October 2006, giving the applicant no chance to make arrangements and she was requested to depart Australia on or before 5 October 2006. Such delay and negligence in responding is a failure and error of law which the Federal Magistrates Court is the only authority to rectify this.
Mr Smith submits that there is no requirement in the Act or the Regulations to reply to a waiver request within any particular time limit. Nor is there any evidence that the Department promised
Ms Lubaton that it would reach a decision by a particular date. Regardless, the date of the decision does not affect the delegate’s refusal to waive the visa restriction. This claim does not give rise to any jurisdictional error and must be rejected.
Conclusion
Ms Lubaton appeared as a self-represented litigant with the assistance of a Tagalog interpreter. However she was able to make oral submissions in English and only sought occasional assistance from the interpreter. Ms Lubaton pleaded for the Court to remove the visa condition allowing her to remain in Australia. It was explained to her that the Court’s role was limited to judicial review of the delegate’s decision to ensure that the Act and the Regulations had been complied with. Other than indicating that she did not agree with the ultimate outcome of the delegate’s decision, Ms Lubaton declined to make submissions in respect of the alleged errors or the documents filed by the respondent. A review of the very limited material in the Court Book does not reveal any jurisdictional error on the face of those documents. In the circumstances, the application should be refused with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 January 2008
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