Mala v Minister for Immigration
[2005] FMCA 556
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALA v MINISTER FOR IMMIGRATION | [2005] FMCA 556 |
| MIGRATION – Application to review decision of delegate of respondent – application for waiver of no further stay condition – whether compelling circumstances – whether applicant had no control over circumstances which developed – whether decision–maker erred in having regard to knowledge of applicant’s parent and failing to have regard to applicant’s claimed lack of knowledge about condition 8503 – whether delegate made decision in the absence of evidence – whether failure to take into account relevant considerations – whether error of law in finding that the applicant could return to Fiji and apply for a visa to migrate to Australia. |
| Migration Act 1958 Migration Regulations 1994 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Verlicia v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1529 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2000 (2003) 198 ALR 59 Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vandstone [2003] FCA 1506 Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360 Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 Terera v Minister for Immigration & Multicultural Affairs [2003] FCA 1570 Naidu v Minister for Immigration & Multicultural Affairs [2000] FCA 951 McNamara v Minister for Immigration & Multicultural Affairs [2002] FCA 240 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mahon v Air New Zealand [1984] AC 808 |
| Applicant: | MALA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1165 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 December 2004 |
| Last Date for Submissions: | 20 January 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Parish Patience Solicitors |
| Counsel for the Respondent: | Ms M. Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That a writ of certiorari issue removing the decision into this court to be quashed.
That a writ of mandamus issue directed to the respondent to reconsider the applicant’s application for waiver of the 8503 condition according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1165 of 2004
| MALA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of a delegate of the respondent made on 27 August 2003 to refuse an application to waive a condition (condition 8503) to which the applicant’s visa was subject.
The applicant was born in Fiji on 15 July 1985. She was granted a Visitor (Subclass 676) visa on 5 January 2001. That visa was granted subject to a number of conditions, including condition 8503 which provides 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.
The applicant entered Australia on 10 January 2001 with her parents and brother who also had visitor visas. At that time she was 15 years of age. Her visitor visa expired on 22 January 2001 but she and her family remained in Australia. On or about 16 January 2001 the applicant’s father lodged an application for a protection visa in which he included his wife and two children as members of the family unit. That application was refused by the Department. The decision was affirmed by the Refugee Review Tribunal. According to the applicant, her father then lodged an application for review in the Federal Court of Australia which was refused on 17 September 2002. He did not appeal that decision within the prescribed 21 day time limit but rather filed a writ of summons in the High Court of Australia on 8 October 2002 challenging the validity of the privative clause. Following the decision in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2 the applicant’s father apparently discontinued his proceedings in the High Court on 10 April 2003. The affidavit of the applicant’s solicitor states that the applicant then “filed an appeal seeking review of the judgment” in the High Court on 8 May 2003. On 14 May 2003 the applicant’s father also filed an application for an extension of time for leave to appeal the decision of the Federal Court of Australia in the Full Court of the Federal Court of Australia. The Full Court of the Federal Court refused to grant an extension of time to file an appeal on 2 February 2004. The High Court application of 8 May 2003 was still on foot at the time of this application. There is no evidence before the Court as to the resolution of those proceedings. The applicant was included in the Full Court and the High Court proceedings.
On 25 July 2003, shortly after her 18th birthday, the applicant attempted to lodge an application for a Close Ties (Subclass 832) visa. The application was found to be an invalid application on the basis that the applicant’s visitor visa was subject to condition 8503 on her visa. It is conceded by the applicant that the application was correctly deemed invalid on this basis. However on 13 August 2003 the applicant requested that condition 8503 be waived on the basis that she met the requirements of Regulation 2.05(4) of the Migration Regulations 1994 (C’th). This request was refused by a delegate of the respondent on
27 August 2003. It is this refusal that is in issue.
On 21 April 2004 the applicant sought review in this court of the decision of the delegate. An amended application was filed on
7 December 2004 and, with the leave of the court, a further amended application was filed on 10 December 2004.
Section 41 of the Migration Act 1958 (C’th) deals with the imposition of conditions on visas, including, in subsection 41(2)(a), a condition in the nature of condition 8503 as follows:
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia;
……
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
At the time of the delegate’s decision sections 46(1)(e) and 46(1A) of the Migration Act 1958 effectively provided that an application for a visa (other than for a protection or bridging visa) was not valid if the applicant was in Australia and held a visa subject to the 8503 condition which had not been waived. Regulation 2.05 of the Migration Regulations prescribes the circumstances in which condition 8503 may be waived. It relevantly provided:
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 the Schedule 2 that relates to visas of the subclass in which the visa is included.
……
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 had 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.
Section 474(3)(d) of the Migration Act provides that a decision to refuse to remove a condition (such as the decision to refuse to waive condition 8503) is a privative clause decision. (But see Verlicia v MIMIA [2004] FCA 1529 at [5] per Moore J).
In the applicant’s request that condition 8503 be waived it was claimed that after several years in Australia, where she had gone to school and to TAFE, she had developed into an independent adult and that she was a completely different person to the person she was in Fiji, which was a very different environment for her culturally. It was claimed that when she was granted the visitor visa (at the age of 15 years and 5 months) she was not informed by the Department about condition 8503 and that as a minor she should have been so counselled. It was claimed that since entering Australia she had developed from a dependent child into an independent adult and had strong ties to the community. It was submitted to the delegate that this constituted a significant change in circumstances that occurred after the grant of the visa in question and over which the applicant had no control. It was also stated in the application for waiver that, consistent with Departmental policy, there was nothing in the Migration Act or Regulations to limit an application for waiver only to visas that were in effect (the applicant’s visitor visa having expired at the time of the request).
The Delegate’s decision
In a letter to the applicant dated 27 August 2003 the delegate of the respondent stated that she had determined that the applicant failed to satisfy the legislative criteria for the 8503 condition to be waived and that she had failed to satisfy the criteria in Migration Regulation 2.05(4). Attached to this letter was a Minute from another Departmental officer to the Departmental delegate addressing the request for waiver of condition 8503. The Minute concluded that a major change in the applicant’s personal circumstances had occurred since the visitor visa was granted and that the circumstances were compassionate in nature. The writer was satisfied that the applicant’s personal circumstances had changed considerably during the past three years, “and these circumstances have resulted in a major change to her personal circumstances as she has grown up in a totally different environment and has developed into an independent adult”. The Minute recognised that for the applicant to go back to Fiji would cause emotional hardship and that she would find it difficult to adjust. However this was said to be insufficient to justify a waiver. The Minute stated:
12. I am not satisfied on the information provided that Ms Mala’s situation is one that was beyond her control, neither am I satisfied that such circumstances are compelling. There are other alternatives available, other than extending the applicant’s stay in Australia. Whilst it may be difficult for Ms Mala to go back to Fiji, it is not impossible for Ms Mala to lodge an application off-shore to migrate to Australia.
13. At the time her visa was granted Ms Mala’s responsible parent, which would have been her mother in this instance, would have been made aware of the 8503 condition attached to her daughter’s Visitor visa and the consequences involved. When any applicant applies for a Visitor visa at an overseas post the applicant signs a written undertaking acknowledging that they agree to any such conditions being placed on their visa. When an applicant is under 18 years of age, a responsible parent or guardian signs on the minor’s behalf. Evidence from the post in Suva, where the applicant applied, also confirms that this acknowledgement was signed.
14. Moreover it has been totally within the applicant’s control whether or not to stay in Australia or depart at any given time. It was also the applicant’s choice to study and start a life in Australia, regardless of her visa status. For these reasons, I find that these circumstances were within the control of the applicant.
15. Based on the above, I find that the requirements of Regulation 2.05(4) have not been met.
The Minute recommended that the 8503 condition not be waived. It is marked with the “delegate’s action” indicated as “agreed”, signed by the delegate and dated 27 August 2003.
This application
The grounds for review in the further amended application are as follows:
1. The respondent by her delegate made the decision in the complete absence of evidence.
Particulars
(a)There was no class of visa for which the applicant could have applied for migration to Australia had she returned to Fiji.
(b)There was no evidence that the 8503 condition was known to the applicant personally prior to her arrival in Australia.
(c)There was no evidence that as a minor the applicant had any control whatsoever over her remaining in Australia after the rejection of her father’s protection visa application (in which she was included).
2. The respondent by her delegate, failed to take relevant considerations into account.
Particulars
(a)There was no class of visa for which the applicant could have applied for migration to Australia had she returned to Fiji.
(b)The 8503 condition was not known to the applicant personally prior to her arrival in Australia.
(c)As a minor the applicant had no control whatsoever over her remaining in Australia after the rejection of her father’s protection visa application (in which she was included).
3. The delegate committed jurisdictional error of law in finding that it was possible for the applicant to return to Fiji and successfully apply for a visa to migrate to Australia.
4. The delegate breached the rules of natural justice by failing to disclose the information upon which she relied in coming to the conclusion that the applicant’s mother signed a declaration acknowledging her understanding of the nature and effect of the 8503 condition.
A preliminary issue arose which was addressed by each of the parties in written submissions after the hearing. Following the decision of
27 August 2003 which is the subject of this review application, the applicant solicitors wrote to the Department on 3 September 2003 requesting the delegate to revisit her decision and waive condition 8503 or to give reasons why the applicant’s situation was not one where compelling and compassionate circumstances had arisen and why there had not been a major change to her circumstances which was beyond her control. Alternatively the delegate was asked to take the letter as being a second request for a waiver if she considered that she did not have the power to revisit the decision.
On 12 September 2003 the delegate responded on the basis that she treated the letter as a second request to waive the 8503 condition. This response was also accompanied by a Minute and a conclusion that the condition should not be waived. The Minute considered the additional factor in Regulation 2.05(4)(b) that if the Minister has previously refused to waive the condition the Minister must be satisfied that the circumstances mentioned in paragraph 4(a) of Regulation 2.05 are substantially different from those considered previously.
Counsel for the respondent contended that a re-exercise of power in response to a request for reconsideration may replace the decision which was the result of the first exercise of power and become the operative decision and that where the second decision involved a re-exercise of the same power by the same decision-maker (or a more senior delegate) it was normally regarded as the operative decision. It was pointed out that the applicant had not sought review of the second decision (which was said not to be affected by any error for the same reasons applying to the original decision). Counsel for the applicant contended that the applicant had, properly, sought review of the first decision and noted the operation of paragraph 2.05(4)(b) in relation to the second decision. It was submitted that paragraph 2.05(4)(b) was only activated if there had been a substantial change in circumstances from those considered previously and if, as here, there had been no such change then the previous decision and the reasoning therein stood. Thus the operative decision was said to be the first decision. It was further submitted that in the reconsideration the delegate had re-affirmed her reasoning and conclusions in the first decision and if that reasoning and those conclusions were vitiated by jurisdictional error then the second decision could not stand.
The additional requirement of Regulation 2.05(4)(b) is critical. As Kenny J pointed out in Terera v Minister for Immigration & Multicultural Affairs [2003] FCA 1570 at [13] (in a case in which there were two decisions and an applicant challenged (successfully) the first decision not to waive condition 8503):
If, however, this first decision was vitiated by jurisdictional error and, in consequence, there was no decision under Reg 2.05(4)(a) of the Migration Regulations, then any subsequent decision would fail because there was no effective previous refusal for the purposes of Reg 2.05(4)(b) of the Migration Regulations.
I am satisfied that similar reasoning would apply in this case. Hence, as the applicant contended, the applicant properly sought review of the first decision. If the first decision is vitiated by jurisdictional error then the subsequent decision must also fail.
Grounds 1, 2 and 3 in the further amended application overlap. In essence they contend that there is jurisdictional error either because the decision was made in the complete absence of evidence on certain issues, because the respondent failed to take specified relevant considerations into account, or because the delegate made an error of law in one respect. Ground 4 contends that there was a breach of the rules of natural justice arising out of the Tribunal treatment of one issue. It is convenient to deal with each of the findings challenged and then to consider whether an error is established which constitutes a jurisdictional error in any of the ways contended for by the applicant.
Regulation 2.05(4)
It is relevant first to have regard to the precise requirements of the applicable legislation. Section 41(2A) provides that the Minister may “in prescribed circumstances” waive condition 8503. The prescribed circumstances are those set out in paragraphs (a), (b) and (c) of Regulation 2.05(4). In this instance paragraph (b) is not applicable, as the decision in issue was the first application to the Minister and there had been no prior refusal to waive the condition. Nor is there any dispute that paragraph (c) was met, as the applicant requested the Minister to waive the condition in writing. That request was the letter of 13 August 2003 from the applicant’s solicitors and the annexed attachments, including statutory declarations from the applicant and her father and a copy of the subclass 832 visa application, the applicant proposed to lodge in the event that condition 8503 was waived.
Regulation 2.05(4) prescribes the circumstances which must exist to enliven the respondent’s power to waive the condition (see Dowsett J in Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506 at [8] and also see Verlicia v MIMIA [2004] FCA 1529 per Moore J at [7]). It appears from the introductory words to that Regulation that the Minister (and the delegate of the Minister) has a discretion as to whether or not to waive a condition but may only exercise that discretion if of the opinion that the circumstances set out in Regulation 2.05(4) paragraphs (a), (b) and (c) exist. In Verlicia Moore J suggested that once the power of waiver was enlivened it was probably a discretionary power, but found it unnecessary to consider the scope of the discretionary power and matters relevant to its exercise because in that case the power was not enlivened as the delegate was of the opinion that the prescribed circumstances did not exist (at [7]). Similarly, in this case the delegate was of the opinion that the prescribed circumstances did not exist. While it is for the decision-maker to be satisfied whether compelling and compassionate circumstances did develop after the grant of the visa and of the other prerequisites (Naidu v MIMA [2000] FCA 951 at [17] per Hill J and McNamara v MIMIA [2002] FCA 240 at [39] per Emmett J), nonetheless, if a jurisdictional error (such as error in the sense referred to in MIMA v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ) is established, then orders in the nature of certiorari and mandamus as sought by the applicant may be made (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and see Terera at [19]). It is necessary to consider whether the delegate fell into jurisdictional error in addressing the essential question of whether the circumstances referred to in paragraph (a) of Regulation 2.05(4) were made out (see Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360 at [12] per Marshall J).
Counsel for the applicant contended that, consistent with the ordinary meaning of the word, “compelling” in Regulation 2.05(4)(a) meant “invoking substantial or great sympathy”. However such a definition is more applicable to the concept of “compassionate”, which the Macquarie Dictionary defines as “having or showing compassion” which in turn is defined as “a feeling of sorrow or pity for the sufferings or misfortunes of another, sympathy”. In contrast, compelling is defined in the Macquarie Dictionary as “demanding attention or interest” when used as an adjective. In Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 O’Loughlin J suggested at [21]:
The circumstances that must fit the description of ‘compelling and compassionate’ must have developed since the grant of the visa … Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87. There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.
Also see Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360 at [12] per Marshall J. However in Terera v MIMIA [2003] FCA 1570 at [25] Kenny J preferred not to put a gloss on the plain words of Regulation 2.05(4)(a) pointing out that when a visa holder requests the delegate to waive condition 8503:
Then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.”
As Dowsett J stated in Auva’a at [8]:
In subreg 2.05(4), the word “circumstances” is used with three different meanings. In the introductory part of the sub-regulation the word is used to describe collectively the conditions which will enliven the first respondent’s power to waive a relevant condition. The word is then used in par 2.05(4)(a) to describe “compelling and compassionate” factors which must have developed since the issue of the visa. In subpar. 2.05(4)(a)(ii) the word is used to describe the whole of the relevant person’s position, presumably to the extent that it is relevant to the issue of a visa. The “compelling and compassionate circumstances must themselves result in a “major change” to the person’s “overall” circumstances. This requirement seems to contemplate a comparison of the relevant person’s position prior to the issue of the visa with his or her position as a result of the “compelling and compassionate” circumstances.
It is the second sense in which the word “circumstances” is used in regulation 2.05(4) which is in issue in this case – the description of “compelling and compassionate” factors which must have developed since the issue of the visa, not the “overall” circumstances of the applicant relevant to a consideration of whether there has been a “major change”.
In Thongpraphai it was pointed out (at [12]) that in this context the circumstances that could be taken into account as those which are compelling and compassionate are only those which “developed” after the visa was granted. It is relevant to note that Regulation 2.05(4) does not refer to a broader notion such as compelling reasons (in contrast to the use of this concept elsewhere in the Regulations, see for example Schedule 3 Item 3003(d)). It is the circumstances that have developed which must be compelling and outside the control of the applicant. It is not the “overall” circumstances in subpar. 2.05(4)(a)(ii) that are in issue. The use of the words “over which the person had no control” (emphasis added) in subpar. 2.05(4)(a)(i) makes it clear that it is the control that the applicant had over the circumstances and their development that is in issue – not the applicant’s control over her present situation.
Before considering the grounds of review it is important to note that the delegate was satisfied that the circumstances that had developed since the visa was granted were compassionate circumstances that resulted in a major change to the applicant’s personal circumstances. The factors that the delegate referred to were the change in the applicant’s personal circumstances in the past three years (as she had grown up in a totally different environment and had developed into an independent adult) and the fact that for her to go back to Fiji would cause her emotional hardship and that she would find it difficult to adjust to the Fijian society. It is also these circumstances which the delegate found resulted in a major change.
The applicant takes issue with three of the findings made by the delegate. The delegate found (and it is not disputed that the Minute reflects the reasons of the delegate) that two of the legislative prerequisites to exercise of the power to waive the 8503 condition were not met. First the circumstances were not outside the visa holder’s control, and secondly the circumstances were not compelling (although the Minute referred to the question of whether or not the applicant’s “situation” was one that was beyond her control). The Minute stated generally: “I am not satisfied on the information provided that
Ms Mala’s situation is one that was beyond her control, neither am I satisfied that such circumstances are compelling”. The Minute then went on (in paragraphs 12 to 14 set out at [10] above) to refer to three aspects of the material before the delegate before concluding that, “based on the above”, the requirements of Regulation 2.05(4) had not been met.
The “awareness of condition 8503” issue
It is convenient to deal first with the finding in paragraph 13 of the Minute that at the time the visa was granted the applicant’s mother would have been made aware of the 8503 condition attached to her daughter’s visitor visa and the consequences involved. The documents before the delegate included a statutory declaration from the applicant’s father (not her mother) stating that neither the existence nor the effect of condition 8503 on his visa or that of his daughter was ever explained to him or his daughter in Fiji. Also provided was a statutory declaration from the applicant about the absence of any explanation to her about the existence or effect of condition 8503.
However, the delegate’s obligation in considering whether the prerequisites in Regulation 2.05(4) are met is to consider whether compelling and compassionate circumstances have developed that resulted in a major change to the applicant’s circumstances (see Auva’a at [8]). The circumstances considered in paragraph 13 of the Minute are not the circumstances of the applicant. They are the circumstances of the applicant’s parent. In addressing the circumstances of the applicant’s parent rather than those of the applicant in determining whether or not the applicant’s circumstances were compelling the delegate has asked herself the wrong question or had regard to irrelevant considerations (in effect asking whether the parent (rather than the applicant) met the criteria in Regulation 2.05(4)). This may well have affected the outcome of the decision. As Kenny J stated in Terera at [22] in relation to another applicant who was a child at the time a visa to visit Australia was granted:
Regulation 2.05(4)(a) requires a decision-maker to have regard to the situation of the applicant (who, in this case, is a child) on whom the condition was imposed and from whom the condition would be removed if the decision-maker found the criteria in Reg 2.05(4)(a) were satisfied.
It is clear that the applicant (as a 15-year-old) could have no control over what her mother (or father) did or knew when the parents applied in Fiji for visas to visit Australia. The parents’ actions and knowledge were not those of the child. It is immaterial to the question of whether compassionate and compelling circumstances had developed after the grant of the visa (that resulted in a major change to the applicant’s circumstances) that the applicant’s parent knew of the existence or effect of condition 8503 before that time. The decision-maker did not find that the applicant had knowledge or had been made aware of the 8503 condition attached to her visa and indeed did not address this issue. The finding addressed the knowledge and actions (in signing an acknowledgement) of the applicant’s parent. The delegate had before her evidence in the form of a statutory declaration from the applicant as to the lack of an explanation to her that the visa was subject to condition 8503 or of the effect of condition 8503. The question of whether or not her parent signed a visa application form that included an acknowledgement about the effect of condition 8503 does not address her circumstances. The decision-maker did not have regard to the situation of the applicant in this respect. I am not persuaded by the submission by counsel for the respondent that the knowledge of her parent was the knowledge of the applicant. Moreover while the summary of the request for waiver in the Minute recited the applicant’s claim that she was not informed about the 8503 condition on her visa (a claim that is made in the letter from her legal representatives), this aspect of her claim was not addressed in the findings in paragraph 13 or elsewhere in the recommendation part of the Minute relied on by the delegate to conclude that the requirements of Regulation 2.05(4) were not met. In these circumstances, while I would prefer the characterisation that the delegate did not ask herself the correct question, she has also failed to have regard to a relevant consideration being an integer or aspect of the applicant’s claims as contended in the further amended application.
It is apparent from the material put before the delegate that part of the applicant’s claim was that one of the reasons why the circumstances which developed after the grant of the visa were compelling was that she had no knowledge of the imposition or effect of condition 8503 at the time her visa was granted. While such lack of knowledge would not of itself constitute compelling circumstances that “developed” after the grant of the visa (see Thongpraphai at [12]), what was said in that case does not mean that it was not open to the decision-maker to have regard to such a matter in making the qualitative assessment of whether the circumstances of the applicant that developed after the grant of the visa (the applicant’s development over several years from a dependent minor to an independent adult in Australian society) were compelling. Unlike the situation in Thongpraphai this was not a case in which the only possible argument that could be (or was) advanced on the applicant’s behalf was that her lack of understanding was itself a compelling and compassionate “development”.
The applicant’s claim about the relevance of her lack of knowledge about condition 8503 was clearly raised on the material put forward by the applicant (including her statutory declaration and adviser’s submission). In failing to deal with the applicant’s claim about the relevance of her lack of knowledge of condition 8503 the decision-maker failed to take into account a relevant consideration. Further this failure affected the delegate’s exercise of power (see Yusuf at [82] per McHugh, Gummow and Hayne JJ). In asking the wrong question and failing to address an aspect of the applicant’s claim, the delegate fell into error in making the finding that the circumstances that had developed were not compelling. The decision-maker did not simply take into account an extra or extraneous factor or a factor of little weight (the knowledge and past conduct of the applicant’s parent). Rather it failed to ask the right question and address an aspect of the applicant’s claimed circumstances which were said to meet the prerequisites in Regulation 2.05(4) for a waiver of condition 8503. Hence it constructively failed to exercise jurisdiction in a manner constituting jurisdictional error.
This conclusion means that it is unnecessary to address the other grounds in the further amended application relating to this finding or the more general contention that the delegate breached the rules of natural justice by failing to disclose the information upon which she relied in coming to the conclusion that the applicant’s mother signed a declaration acknowledging her understanding of the nature and effect of the 8503 condition.
The “other alternatives” finding
The delegate also found that there were other alternatives available, “other than extending the applicant’s stay in Australia”. The Minute stated “Whilst it may be difficult for Ms Mala to go back to Fiji, it is not impossible for Ms Mala to lodge an application off-shore to migrate to Australia.” The applicant contended first, that the delegate committed a jurisdictional error either in making this finding in the complete absence of evidence or in failing to have regard to the relevant consideration that there was no class of visa for which the applicant could have applied for migration to Australia had she returned to Fiji, or by making an error of law in finding that it was possible for the applicant to return to Fiji and successfully apply for a visa to migrate to Australia.
This finding was made in relation to whether or not the circumstances which had developed were compelling. However the conclusion about compelling circumstances was infected by jurisdictional error because the Tribunal asked itself the wrong question in addressing the circumstances of the applicant’s parent rather than those of the applicant. As discussed above, it is not necessary for error also to be established in relation to this finding – it was not an alternative basis for the delegate’s lack of satisfaction but rather part of what persuaded her that the circumstances that had developed were not compelling.
If I am wrong and it could be said that an alternative basis for the finding in relation to compelling was the “other alternatives” finding then I am satisfied that such an approach would involve an error of law constituting jurisdictional error.
The finding made in the Minute (that it was not impossible for the applicant to apply off-shore to migrate to Australia) is expressed as an “available” alternative – presumably as an alternative to the applicant being able to stay in Australia and apply for a visa in Australia. The grounds in the amended application suggest that this finding should be read as a finding that the applicant could return to Fiji and “successfully” apply for a visa to migrate to Australia. However, as counsel for the respondent contended, this was not the finding that was made by the delegate. The Minute does not state that the applicant could or would “successfully” apply in Fiji for a visa to migrate to Australia. It was submitted for the respondent that as no such finding was made it cannot provide a basis for establishing jurisdictional error. However the finding was relied upon as a reason for the delegate’s conclusion that the compassionate circumstances that had developed since the grant of the visa that resulted in a major change to the applicant’s circumstances were not compelling. The context in which this determination was made is relevant. These criteria are applicable in relation to an application to waive condition 8503. If the fact that an applicant could physically apply for a visa in his or her country of nationality irrespective of the chance of success was of itself such as to mean that the circumstances were not compelling then it is difficult to see how any change in circumstances in Australia could be compelling in this context.
On the basis that the finding was as contended for by the respondent, such an approach would involve a misconception as to what may amount to compelling circumstances. If this is an independent basis for the finding about “compelling circumstances”, then the delegate failed to address the proper meaning of “compelling”, reached a conclusion that was incapable of supporting the finding it made and hence made an error of law constituting jurisdictional error.
The “applicant’s control” issue
I am also satisfied that a jurisdictional error has been established in relation to the finding in paragraph 14 of the Minute that “it has been totally within the applicant’s control whether or not to stay in Australia or depart at any given time”. Again the decision-maker has failed to address an element or integer of the applicant’s claimed circumstances. The essence of the applicant’s request for waiver, as is apparent from her statutory declaration and from the statements in support of the proposed application for a subclass 832 visa, is that when she was granted the visa and when she came to Australia (at a time when she was 15 years old) she was a dependent minor from a culture in which (according to her) as a young female she was expected to stay at home and do what her parents told her to do. She claimed to be dependent on her parents emotionally, financially and physically. Her dependence was expressed as “the way it is in Fiji”. She claimed that she “could not take a step forward without daddy’s permission” and to have had limited English. Her claim was that since her arrival in Australia she had gradually become independent. It is of course the case that in her application for the subclass 832 visa she contends that she is now an independent adult. It may well have been open to the decision-maker to have found that it is now within the applicant’s control whether or not to stay in Australia, but the delegate did not address her claim that in the past she was a dependent child in finding that it was totally within her control whether or not to stay in Australia or depart “at any given time”. The finding that it was the applicant’s choice to study and start a life in Australia regardless of her visa status also overlooks this aspect of the applicant’s claim, that is her dependence on her parents as a female minor from a conservative cultural background. The delegate failed to have regard to the applicant’s claims in relation to being under her parents’ control in the past.
The fact that the applicant was included in her father’s protection visa application was material before the decision-maker. Consistent with the grounds relied on by the applicant it is implicit in the findings in paragraph 14 of the Minute that after the rejection of that application (until which time it may not have been appropriate to expect the applicant to depart Australia) the applicant had control over whether to stay in Australia. However the protection visa rejection occurred when Ms Mala was still a minor and at school. (Indeed the Federal Court decision dismissing the application for judicial review of the decision of the Refugee Review Tribunal which affirmed the decision not to grant the protection visa was made on 17 September 2002 – when the applicant was still a minor, and at school).
It was contended for the applicant that an administrative decision-maker such as the delegate of the respondent must base his or her decision on some evidence probative of the issue to be decided (see Mahon v Air New Zealand [1984] AC 808 at 820 – 821; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1046 – 1047 per Lord Wilberforce; and Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at [25] per Gleeson CJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2000 (2003) 198 ALR 59 at [163] per Kirby J) and that whether characterised as an element of natural justice or as an independent ground of judicial review a decision based on a finding for which there was no evidence was infected with jurisdictional error.
Counsel for the respondent conceded that a jurisdictional error could be established if there was no evidence at all to support the finding of fact made by the delegate, but submitted that there was clearly some evidence on the basis of which the delegate made the finding about control. However such evidence related to the applicant’s situation at and shortly before the time of the waiver request – not to whether she “had” control over the development of compelling and compassionate circumstances after the grant of her visitor visa. The finding that she can now go back to Fiji and lodge an application for a visa is not relevant to whether she “had” control in the past within subparagraph 2.05(4)(a)(i). Insofar as the delegate considered the present and future in addressing subparagraph (a)(i) she failed to address the proper meaning of “had no control” and made an error of law.
There was no evidence before the delegate brought to the attention of the court to support the finding that it had been totally within the applicant’s control whether or not to stay in Australia “at any given time” (in particular after the protection visa application in which she was included was refused). The Tribunal fell into jurisdictional error. In light of the concession by counsel for the respondent it is not necessary to consider further the extent to which a jurisdictional error arises on “no evidence” grounds. I am in any event satisfied that the delegate fell into jurisdictional error in failing to take into account and address the integers of the applicant’s claims (about her past dependence on her parents as a female minor of Fijian Indian upbringing) in concluding that it was totally within the applicant’s control whether or not to stay in Australia or depart “at any given time”, in particular after the protection visa application was refused, and in finding that it was “the applicant’s choice” to study and start a life in Australia, regardless of her visa status”.
As jurisdictional errors have been established in relation to each of the critical adverse findings of the delegate the relief sought should be granted.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 3 May 2005
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