Massy v Minister for Immigration
[2008] FMCA 63
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASSY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 63 |
| MIGRATION – Judicial review of decision of delegate of the Minister not to waive condition 8503 of Medical Treatment (Visitor) visa – whether misinterpretation of legislation – whether irrelevant matter taken into account – whether jurisdictional error – application allowed. |
| Migration Regulations 1994, reg.2.05 |
| 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 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SUSHIL MASSY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 948 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 December 2007 |
| Date of last submission: | 16 January 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Hughan |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms E Latif |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Respondent, quashing the decision of the Respondent dated 13 June 2007.
A writ of mandamus issue directed to the Respondent, requiring the Respondent to determine according to law the application for review.
The Respondent pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG948 of 2007
| SUSHIL MASSY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of a delegate of the Minister not to waive the condition 8503 imposed on the Applicant’s medical treatment (long stay) visa.
The delegate’s decision was made on 13 June 2007.
For convenience, I accept that the legislative framework has been accurately referred to in the Applicant’s contentions of fact and law, which I note appear to be consistent with the background set out by the delegate in his decision dated 13 June 2007. The framework appears in the following paragraphs from the Applicant’s contentions:
“22.Section 41 of the Migration Act 1958 permits the Minister to impose conditions on visas granted under the Act including, pursuant to sub-section 41(2)(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.’
23.The Migration Regulations 1994 provide for the types of conditions that may be imposed on visas. Pursuant to Schedule 8, an 8503 condition may be imposed meaning 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.’
24.The Act further provides that in prescribed circumstances and by writing the Minister may waive a condition such as an 8503 condition. Regulations 2.05(4) sets out the prescribed circumstances for waiver of such condition as follows:
‘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.’”
The Applicant’s claims for a waiver of condition 8503
I accept the summary of the Applicant’s claim set out in the Respondent’s contentions in the following terms:
a)since 4 November 2004 (being the date on which the Applicant’s last medical treatment (visitor) (class UB) visa was granted: CB 153‑154), the Applicant’s work related injuries had stabilised such that he became able to make preparations to lodge a no‑fault claim for personal impairment. The Applicant’s medical costs were being met by the Victorian WorkCover Authority and he remained unable to work. Were he to return to India, he would not continue to receive these medical payments, which would cause him hardship. Refer Court Book pp.156‑158.
b)the Applicant claimed to have developed depression and associated anxiety as a result of his work related injury and was receiving treatment from a psychologist: Court Book pp.203‑205, see also pp.209‑210. As at 12 July 2006, this became an additional circumstance relied upon.
Background
The Respondent has appropriately conceded that a summary of the background in this matter has been accurately recorded in the Applicant’s contentions of fact and law in the following paragraphs:
“2.The applicant is a citizen of India who first entered Australia on a Short Stay (Visitor) (Class TR) subclass 676 visa on 6 November 1997.
3.On 19 January 1998 the applicant was granted a Long Stay (Visitor) subclass 686 visa. He was again granted a subclass 686 visa on 12 May 1998.
4.On 26 November 1998 the applicant was granted a Temporary Business Entry (Class UC) subclass 457 visa which was valid until 26 November 2002.
5.After being granted that visa the applicant worked as a chef at Kake Di Hatti, an Indian restaurant in Brunswick in 1999 and 2000, however he was injured during the course of his employment. He sustained an injury to his right elbow.
6.As a result of suffering this work injury, the applicant made a claim for compensation pursuant to the applicable Victorian workers’ compensation legislative scheme, to the Victorian Workcover Authority. Although his claim was initially rejected, on 27 July 2000, the Authority accepted that the applicant was entitled to be paid weekly benefits to compensate him for his loss of earnings and medical and like expenses.
7.On 15 October 2001 the applicant’s subclass 457 visa was cancelled after his former employer informed the respondent’s Department of the cessation of his employment. However that cancellation was set aside by the Migration Review Tribunal on 19 February 2002.
8.On 25 November 2002 the applicant applied for a Medical Treatment (Visitor) (Class UB) visa.
9.On 10 January 2003 a delegate of the respondent refused to grant this visa to the applicant. However on 4 June 2003 that decision was set aside by the Migration Review Tribunal and the applicant’s application was remitted to the Department.
10.On 20 November 2003 the applicant was granted a Medical Treatment (Long Stay) Visa with conditions including an 8503 ‘no further stay’ condition.
11.On 21 April 2004 a delegate of the respondent granted the applicant’s request to waive that 8503 condition. On the same day the applicant applied for a further Medical Treatment (Visitor) (Class UB) visa.
12.On 4 November 2004 the applicant was granted that visa. That visa was valid until 4 May 2005. An 8503 condition was imposed upon that visa (CB 153-154).
13.On 22 April 2005 the applicant requested in writing that the respondent waive the 8503 no further stay condition attached to that visa (CB 155ff). The purpose of the request was so that the applicant could make a further application for a medical treatment visa. On behalf of the applicant it was submitted that the major change to his circumstances was the preparation of the applicant’s permanent impairment claim, which could not be lodged until his injury had stabilised; that these changes were beyond his control; and the circumstances were compelling and compassionate.
14.On 2 May 2005 another delegate of the respondent declined to waive that condition on the basis that the applicant’s reason for wishing to remain in Australia (to pursue legal proceeding in respect of the work-related injury) was not a matter beyond his control and that the delegate did not accept that there had been a major change of circumstances since the grant of the applicant’s previous visa (CB168-169).
15.The applicant applied for judicial review of that decision on 4 May 2005. An amended application for review was filed on 13 September 2005 (SCB 1).
16.On 5 December 2005 Federal Magistrate Riethmuller ordered by consent that:
the decision of the respondent’s delegate dated 2 May 2005 be set aside:
the matter be remitted to a different delegate of the respondent for determination according to law; and
the respondent pay the applicant’s costs (CB 198).”
The Delegate’s Decision
The decision of the delegate dated 13 June 2007 accurately recites the operation of condition 8503 and relevantly sets out reg.2.05 of the Migration Regulations 1994 (the Regulations). The delegate then proceeds to relevantly state the following:
“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. All these requirements must be met for waiver to be granted, no just one or some of them.
Your client’s request is based on a number of medical issues following a workplace accident. I have carefully considered all the information provided in your detail submission, the medical reports attached to your client’s request and the contents of your client’s DIAC files. The information before me confirms that your client continues to receive regular ongoing treatment and that he has now engaged a firm to investigate his no fault claim, which given your earlier advice, would suggest that the condition has stabilised.
However, I consider the circumstances detailed in the medical reports provided and in your submission, were largely expected when your client was granted his visa and in fact were provided, at the time, as reasons why the 8503 condition should be waiver from his previous visa. I therefore consider that the only change which has occurred since the grant of the visa is the degree of seriousness of your client’s health issues and the investigation into his no fault claim; changes which were expected by Mr Massy, and which formed the bases for his applications to the department.
Consequently I do not accept that the circumstances presented in this case represent a major change as they were expected, have gradually developed over time and will continue to develop with the passage of time. Therefore, based on the information presented I have determined that your client has failed to satisfy Regulation 2.05(4)(a)(ii), that is the circumstances presented did not result in a major change in circumstances.”
Applicant’s Submissions
The Applicant relied upon contentions of fact and law filed 8 October 2007 and a document entitled “Applicant’s Response to Respondent’s Contentions” filed 5 December 2007. By order of the Court, the Applicant was also entitled to rely upon a post-hearing submission entitled “Further Submissions on behalf of the Applicant” filed
20 December 2007.
In support of the submissions on behalf of the Applicant, reference was made to further background where it was claimed that the Applicant provided information to the Respondent about his circumstances on
1 June 2006and 12 July 2006. A report from a treating psychologist, Jennifer McGowan, dated 7 July 2006 was relied upon by the Applicant. It was noted that on 16 February 2007, following an invitation from the Respondent, the Applicant provided additional information concerning his circumstances. At this time a further report from Ms McGowan dated 7 February 2007 was relied upon by the Applicant. It is claimed that report detailed that the Applicant “suffered a significant set-back in his psychological state in November 2006 when his mother passed away in India”.
In the application for judicial review filed 10 July 2007 the Applicant relied upon three grounds in relation to the delegate’s purported decision not to waive the 8503 condition, namely:
·The delegate did not consider whether the Applicant’s circumstances fell within reg.2.05(4);
·The delegate misunderstood reg.2.05(4) causing her to fail to address the issue for determinations;
·The delegate took into account irrelevant matters, namely that the changes in the Applicant’s circumstances were expected and were the basis of his previous application.
It was argued by the Applicant that he had made his request for waiver of the 8503 condition in writing and accordingly met the requirements of subparagraph 2.05(4)(c) of the Regulations.
The Applicant relied upon the decision of the Federal Court 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 (Auva’a). Counsel specifically referred to the following paragraphs in the judgment of Dowsett J where the Court states:
“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 was submitted that the delegate failed to understand “the way in which the regulation authorising waiver is to operate”. Reference was made to the following passage of the delegate’s decision set out earlier in this judgment:
“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. All these requirements must be met for waiver to be granted, no just one or some of them.”
It was submitted that following the decision of Dowsett J in Auva’a that the “Regulation contemplates a comparison of the 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 was argued that the delegate did not undertake that exercise due to a misunderstanding of the requirements. Instead it was argued “the delegate imposed a requirement that the changes not be ‘expected’”.
It was submitted that after determining that changes were expected and they had formed the basis of the Applicant’s pervious applications the delegate then “concluded that the circumstances did not represent a ‘major change’”.
The delegate then proceeded to find the Applicant failed to satisfy reg.2.05(4)(a)(ii) of the Regulations requiring that the compelling and compassionate circumstances which developed since the grant of the visa resulted in a major change of the Applicant’s circumstances. It was argued that the issue of whether the circumstances were beyond the control of the Applicant as contemplated by reg.2.05(4)(a)(i) was not considered as the delegate had “wrongly considered that the applicant had failed to meet Reg.2.05(4)(a)(ii).”
In support of the submissions on behalf of the Applicant it was submitted that cases dealing with there being no requirement that changes be unforeseen should be regarded as synonymous to the concept of being “unexpected”. Reference was made to Naidu v Minister for Immigration & Multicultural Affairs [2000] FCA 951 (Naidu) at [11]-[13] and Schaap v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 65 (Schaap) at [8] where the Court relevantly stated:
“Counsel for the applicant submits that reg 2.05(4) does not require that any change in a person’s circumstances ‘could not have been foreseen’. I accept this submission. Foreseeability represents, in my opinion, an entirely unwarranted gloss on the plain meaning of the regulation.”
Reference was made to the decision of Kenny J in Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570 (Terera) where Her Honour relevantly states:
“23There is, moreover, nothing in reg 2.05(4)(a) that would make the "foreseeability" of any major change in an applicant’s circumstances a disqualifying factor. As the decisions in Schaap v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 65 ("Schaap") [2000] FCA 1408 and Naidu v Minister for Immigration and Multicultural Affairs [2000] FCA 951 ("Naidu") indicate, earlier versions of the Procedures Advice Manual (which may provide a decision-maker with some guidance) referred to a notion of foreseeability. This led the decision-makers in those cases into error. Although the version of the Manual that was current at the time of the decision under review now contained no such reference, the delegate in the present case also relied on the fact that the applicant’s marriage was "foreseeable" (by her) as a factor telling against the waiver of the condition. This consideration is no less irrelevant in this case than in Schaap and Naidu. Regulation 2.05(4)(a) contains no criterion of foreseeability: see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39. If compelling and compassionate circumstances had developed since 28 December 2001, resulting in a major change in the applicant’s circumstances outside his control, then it would be immaterial that the circumstances were in any sense "foreseeable" by him or anyone else.”
In the present case it was submitted that whilst the delegate did not actually use the word “foreseen” or “foreseeable” as an adjective “to describe the circumstances which have changed in this case and thereby led her to reject that there has been a major change in the applicant’s circumstances, the language employed in the decision advice letter of 13 June 2007 – ‘expected’ – reflects the same ‘entirely unwarranted gloss’ on the regulation.” It is noted that another synonym namely “predictable” had been used by the delegate in her consideration of the request for waiver of the condition.
Reliance was then placed upon the following paragraph from the delegate’s decision set out earlier in this judgment:
“Consequently I do not accept that the circumstances presented in this case represent a major change as they were expected, have gradually developed over time and will continue to develop with the passage of time.”
It was argued that that passage further demonstrates the misunderstanding of what was required by the Regulations. Relying upon the decision of Kenny J in Terera it was submitted that “if compelling and compassionate circumstances had developed since
4 November 2004, resulting in a major change in the applicant’s circumstances outside his control, then it would be immaterial that the circumstances were in any sense ‘expected’ by him.”It was further submitted that an error occurred in the delegate’s approach to the request for waiver by the introduction of a concept that the compelling and compassionate circumstances must have “arisen” since the grant of the visa. That appears in the following extract from the delegate’s letter:
“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.”
The error occurred by the use of the word “arisen” compared with the word “developed” which appears in the Regulations (see reg.2.05(4)(a)).
Reference was made to the dictionary definition appearing in the Australian Oxford Paperback Dictionary to the meaning of the word “develop” which means:
“1.to make or become larger, fuller, or more mature or organised.
2. to bring or come gradually into existence.”
It was submitted that although the second of those definitions may provide support for the concept of treating “arisen” as synonymous with “developed”, it was submitted that the “delegate’s approach as shown by the passage set out above invalidates that view”. It was argued that it is not relevant that the changes to the circumstances of the Applicant had gradually developed over time and will continue to develop with the passage of time. The relevant question it was argued for the purpose of the regulation is whether there are “compelling and compassionate circumstances which have developed since 4 November 2004 which resulted in a major change to the Applicant’s circumstances.” It was argued that that “question was not addressed by the delegate”.
The misconstruction of the Regulation resulted in the delegate asking herself the wrong question or taking into account an irrelevant matter and as a result there has been jurisdictional error.
It should be noted in that case it was submitted in the Applicant’s response to the Respondent’s contentions, that I accept for the present case, is that the present case is distinguishable from SZGBR v Minister for Immigration [2005] FMCA 824 “in that the material before this Court does provide a full statement of the delegate’s reasons, irrespective or whether the delegate was obliged to give reasons.”
I accept that there was a similarity between this case and the circumstances in Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 at [16]-[17].
As I understood the submissions for the Applicant it was claimed that the Court should grant the relief sought as to do so would not be futile and would not otherwise be contrary to law.
Respondent’s Submissions
The Respondent submitted that the delegate had correctly identified the relevant statutory scheme and the issues for determination and given appropriate consideration to the Applicant’s claim. The conclusions reached by the delegate were reasonably open on the material.
It was specifically submitted that when considering the Applicant’s request for waiver of condition 8503 the interpretation of “major change” made by the delegate was free of jurisdictional error. It was argued that when dealing with the context of deciding whether the circumstances relied upon by the Applicant constituted a “major change” reference was made to circumstances being “expected”. This appears in a document referred to by the Respondent dated 13 June 2007 described as “Consideration document of Christina Santos regarding Sushil Massy and waiver of Condition 8503 being Folios 109-105” (Supplementary Court Book pp.8-12). Referring to that document it is noted that reference was made to the legal criteria and the delegate then considers the material provided by the Applicant and relevantly states in that document:
“After careful consideration of all the information before me I accept that there has been in Mr Massy’s circumstance since the grant of the visa”
(Supplementary Court Book p.11)
The delegate in that document proceeds to consider the question of whether the circumstances resulted in a “major change” to the client’s circumstances and relied upon the dictionary definition of that term in the Oxford Dictionary to mean “important, serious or significant, greater or more important.”
Relevantly, for the purpose of the Respondent’s submissions the delegate, in the same document relevantly states the following:
“In this light, I consider that in order to meet this requirement, the circumstances must result in an important, serious or significant, change to occur in the client’s circumstance. I do not accept that circumstances which are foreseeable, predictable or even which gradually develop over a long period of time and are therefore largely expected; meet the common use definition of the word major. In reaching this conclusion I give significant weight the wording of the legislation:
‘…that resulted in a major change to the person’s circumstances’
‘A major change’ suggests that the circumstances presented results in a single major change; that is an event or a number of event occur and the client experiences a single major change in their circumstance. I have read the contents of all Mr Massy’s DIAC files (CLF2001/55584, CLF2003/1141 & CLF2005/64732) and consider that the circumstances present do not represent a major change in his circumstance.
In determining this request I have considered the most recent response from Mr Massy’s representative which, as outlined above, includes a number of supporting letters from his treating specialists. While it is apparent that Mr Massy’s condition has ‘shifted’ as suggested by the representative, I do not accept that this ‘shift’ presents a major change in his circumstances.
The information before me confirms that Mr Massy continues to receive regular ongoing treatment and that he has now engaged a firm to investigate his no fault claim, which given the earlier advice, would suggest that the condition has stabilised. These circumstances were largely expected when that visa was granted and in fact were provided, at the time, as reasons why the 8503 condition should be waiver. It appears that the only change which has occurred is the degree of seriousness of his health issues and the investigation into his no fault claim; changes which were expected by Mr Massy, and which formed the bases for his applications to the department.
Consequently I do not accept that the circumstances presented in this case represent a major change as they were expected, have gradually developed over time and will continue to develop with the passage of time.”
(Supplementary Court Book p.12)
It was argued that whilst the reference might have been made to the concept of “expected” the delegate did consider whether in this case “compelling and compassionate circumstances had developed since the visa was granted over which the Applicant had no control that resulted in a major change to his circumstance.” This is evident in the introduction to the extract from the delegate’s decision set out earlier in this judgment which had followed recital of the relevant regulation. It was argued that the authorities relied upon by the Applicant, namely the decision of the Court in Auva’a, Naidu, Schaap and Terera are not binding on the issue before the Court as to whether the Tribunal had misconstrued its approach when considering “major change”.
When considering the use of the word “arisen” by the delegate, it was submitted that there is no error revealed. The Court should not, it was argued, interpret the delegate’s decision with a mind “finely attuned to error” (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). It was argued that the Tribunal understood its task and reference was made to the Macquarie Dictionary (online version) definition of “developed” as :
“having undergone development
…
to bring into being or activity; generate; evolve”
It was noted that “arisen” is defined in the Macquarie Dictionary as:
“to come into being or action; originate; appear”
It was submitted that “’arisen’ and ‘developed’ (or ‘develop’) are synonyms.” The reference it was argued to “arisen” made no material difference to the delegate’s decision on the relevant question. It was noted that in Schaap the use of the word “arisen” did not form a basis for review in that decision although it was noted it was not the subject of argument in that application. It was argued that in any event the delegate had accepted that the circumstances relied upon had occurred “since” the visa was granted and accordingly the delegate had “accepted the circumstances had ‘developed’ in the requisite sense”.
In submissions dated 16 January 2008 the Respondent withdrew reliance upon the decision of the Court in VBAP v Minister for Immigration [2005] FCA 965. However, it was still submitted that the “existence of a separate and independent basis for decision in the circumstances of this case should lead to the conclusion that even if the delegate erred in its reasoning it did not err in the result and accordingly, prerogative relief should be denied.” It was argued that the Court should look to the decision record to “determine whether the decision itself is wrong” (reference was made to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609)
Reasoning
In my view the submissions on behalf of the Applicant are correct.
To the extent that I accept that the delegate has incorrectly and impermissibly introduced by the use of the expression “largely expected” or “expected” a concept of foreseeability which is stated by Whitlam J in Schaap represents “an entirely unwarranted …. On the plain meaning of the regulation”, I further accept, as indicated by Kenny J in Terera that there is nothing in the regulation that would make the “foreseeability” of “any major change in the Applicant’s circumstances a disqualifying factor”.
For that reason alone, I accept, that the delegate has taken into account an irrelevant consideration of a kind which would justify a finding that there has been jurisdictional error and the decision of the delegate should be quashed and the matter remitted to the Respondent for proper determination according to law.
The other issue agitated between the parties concerned the use of the word “arisen”. It is clear that that word does not appear in the regulation. I reject the submission of the Respondent that the words “arisen” and “developed” could be regarded as synonyms for the purpose of a decision to be made pursuant to the Regulations.
However, it would be incorrect to isolate the word “arisen” from the sentence in which it appears. The delegate added the words “since the time of visa grant’. By adding those words in my view the delegate has effectively provided a meaning consistent with the word ‘developed’ as it appears in the regulation. The regulation clearly provides for consideration of waiver “since the person was granted visa” and a consideration of “compelling and compassionate circumstances” which have developed since that time. To say “arisen since the time of the visa grant” does not offend the intent and meaning of the regulation, albeit that it would be preferable for the delegate to have used the actual the words of the regulation, namely “developed” since the person was granted the visa.
In my view therefore the delegate’s decision cannot be criticised on this ground.
Conclusion
Having found however, that there has been an error of the kind described in relation to the primary submission whereby the delegate impermissibly introduced the concept of foreseeability when considering the regulation I am satisfied it is appropriate to make the orders sought by the Applicant.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Emily Wilson-Kwong
Date: 24 January 2008
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