OFA v Minister for Immigration

Case •

[2005] FMCA 1684

•

29 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFA & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1684
MIGRATION – VISA – Condition 8503 – applicants are citizens of Tonga – compelling and compassionate circumstances – bad faith alleged but not proved – hearsay evidence – whether delegate asked the wrong question – a policy guideline is an example and not a definition – departmental policy guidelines not to be used in substitution for the wording of the regulation – jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.41, 483A
Migration Regulations 1994, Reg.2.05(4)

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Mala v Minister for Immigration [2005] FMCA 556
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
SZBGR v Minister for Immigration [2005] FMCA 824
Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 360
Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570

First Applicant: ANA MAFUA OFA
Second Applicant: TEVITA OFA KISIAONE
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG 909 of 2005
Delivered on: 29 November 2005
Delivered at: Sydney
Hearing date: 27 June and 30 August 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Potts
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. That an order in the nature of certiorari issue bringing into this Court to be quashed the decision of the delegate of the Respondent made on 7 April 2005 refusing to grant the application for a waiver of condition 8503 of the Applicants’ visa.

  2. That an order in the nature of mandamus issue remitting the Applicants’ applications to a delegate of the Respondent to be reconsidered according to law.

  3. That the Respondent pay the Applicants’ costs in the sum of $288.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 909 of 2005

ANA MAFUA OFA

First Applicant

And

TEVITA OFA KISAIONE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 7th April 2005, refusing the Applicants’ application for the waiver of condition 8503 on their tourist visas (short stay).

Background

  1. The Applicants are citizens of Tonga. They are husband and wife. The wife, who is the First Applicant, was born on 31st August 1941. She is 64 years of age. The husband, who is the Second Applicant, is considerably older. He was born on 23rd August 1925, so he is now 80 years of age.

  2. The Applicant wife obtained a visitor visa (short stay) on 26th November 2004 and her husband obtained the same visa on 14th December 2004. Both of the visas had condition 8503 ‘No further stay’ attached to them. The Applicants entered Australia together on 23rd December 2004.

  3. It is uncontested that the Applicants’ adult children who live in Australia noted that their mother’s short-term memory significantly deteriorated quite suddenly. They arranged for her to see a general medical practitioner, Dr C. L. Duong, who treated her on 12th February and 8th March 2005.

  4. Dr Duong, in a report dated 20th March 2005, noted the following symptoms:

    I found Mrs. Ana Ofa was slow to answer questions and she would often ask the same questions many times. She also cried during the examination. She also had wheezing and an airway infection. She has been referred to a Respiratory Physician Dr David Barnes at the Royal Prince Alfred Hospital at Camperdown on the 17 March 2005.[1]

    [1] See Court Book, page 12.

  5. On 21st March 2005 the Applicants, through a migration agent, applied for waiver of condition 8503 on both visas. On 7th April 2005, a delegate of the Minister determined that the Applicants had failed to satisfy legislative criteria for the 8503 condition to be waived. The delegate determined that the Applicants failed to satisfy the requirements of Regulation 2.05(4) of the Migration Regulations 1994. The reason given to the First Applicant by the delegate was:

    It has been stated by Dr Duong and Dr Barnes that the medical conditions you are suffering do not prevent you travelling; therefore the circumstances outlined in your request have not resulted in a major change in your circumstances.[2]

    [2] See Court Book page 19.

The Applicants’ Application

  1. On 12th April 2005 the Applicants filed an application under section 39B of the Judiciary Act 1903, seeking a review of the delegate’s decision. The application does not set out any particular relief sought, except a waiver of the filing fee,[3] but I interpret the application to be seeking relief by way of a constitutional writ, such as certiorari or mandamus.

    [3] The Court did not waive the filing fee.

  2. The Applicants filed a document entitled ‘Amended Application’ that appears to me to be more in the nature of a set of submissions. In my view, the proper course is to consider the original application as an application for relief by way of certiorari and mandamus, and to consider the Amended Application as an Outline of Written Submissions. I am mindful that the Applicants are not legally represented.

  3. The relevant grounds in the application are:

    a)Bad faith demonstrated by reliance on Compliance issues e.g. ability to return to Tonga.

    b)Decision maker erred in relying solely on physical ability of applicants to travel.

The Applicants’ Submission

  1. The Applicants’ submission refers to bad faith in the sense of a complaint that officers of the Department of Immigration and Multicultural and Indigenous Affairs allegedly visited the block of home units where the Applicants were staying two days after the date of the delegate’s decision was made. The Applicants were not home at the time of the visit. The submission contains the text of a written complaint made by the Applicants’ migration agent.

  2. It is important to make clear that the bad faith alleged by the Applicants has not been made out. The home visit took place in the Applicants’ absence; they were not home at the time the departmental officers made the visit. The submission refers to a conversation with a departmental officer that appears to have been part of a conversation with the Applicants’ migration agent, rather than the Applicants. The evidence is entirely hearsay. In any event, the visit by the departmental officers, whatever the purpose was, could hardly be evidence of bad faith in the making of a decision that had been made some days earlier.

  3. It should be remembered that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43]). In this case, I am not satisfied that bad faith in the decision-making process has been made out at all. Whatever complaint the Applicants may or may not have about visits by departmental officers in their absence, it does not establish jurisdictional error.

  4. Similarly, bad faith is not demonstrated by reliance on the Applicants’ ability to travel. Whilst that ability to travel is a major issue in this case, it does not have any element of bad faith about it that I can see. To my mind, bad faith is not the issue and has not been made out.

  5. The Applicants submit that there is an error in law demonstrated by what they describe as the decision maker’s “preoccupation” with the First Applicant’s ability to travel without careful consideration of the full legislation and the Applicant’s circumstances. They go on to submit that the First Applicant’s circumstances fall within the Department’s own policy guidelines on what circumstances would be considered to be compelling and compassionate.

  6. The Applicants submit that the decision maker’s preoccupation was with the First Applicant’s fitness to travel, and that the decision maker gave little or no consideration to the reasonableness of the expectation of the person to leave as set out in the Department’s policy. I note, however, that the words “such that it would be unreasonable to expect the person to leave” in the passage quoted by the Applicants are immediately qualified by the words “until they are considered fit to travel”.

  7. The Applicants have referred the Court to the decision of Barnes FM in Mala v Minister for Immigration [2005] FMCA 56, which was also a case involving condition 8503. The fact situation in Mala is significantly different, but it appears to me that her Honour’s discussion on the law relating to Regulation 2.05(4) is pertinent to the case before me.

The Respondent’s Submissions

  1. The Respondent submits that the assessment of compelling and compassionate circumstances required by Regulation 2.05(4)(a) is purely an assessment of a subjective nature and that it follows that the question of whether or not the Minister is satisfied is a question to be determined solely by the Minister and is not subject to review by the Court.

  2. The Respondent went to submit that if the Court were satisfied that it does have jurisdiction to review a finding in relation to Regulation 2.05(4)(a), then it is necessary to consider that the compelling and compassionate circumstances must themselves result in a major change to the applicant’s overall circumstances. The requirement contemplates a comparison of the Applicant’s position prior to the issue of the visa with his or her position as a result of the compelling or compassionate circumstances: 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].

  3. The Respondent submits that the compelling and compassionate circumstances in this matter are the First Applicant’s health and her fitness or otherwise to travel. The Respondent goes on to refer to  Procedures Advice Manual 3 (referred to as “PAM3”) which, although it is not binding with the force of legislation, sets out departmental policy which must be considered and given due weight by ministerial delegates (decision-makers) in deciding visa applications or exercising associated decision-making powers. PAM3 is said to provide guidelines on the types of circumstances that are envisaged to be compelling and compassionate for the purposes of Regulation 2.05(4) including:

    “A situation in which a visa holder has an accident, falls seriously ill or contracts a serious medical condition after arriving in Australia, such that it would be unreasonable to expect the person to leave until they are considered fit to travel.”

  4. The submission is that before she arrives in Australia the First Applicant’s health was such that she was able to travel to Australia and that the delegate had evidence before him that she was fit to travel back to Tonga, as seen by the notes of the conversations with Dr Duong and Dr Barnes. The Respondent submits that, as there had not been a change to the health of the First Applicant that prevented the Applicants travelling back to Tonga, the compelling and compassionate circumstances had not developed and there was no major change to the Applicants’ circumstances.

  5. The Respondent also filed supplementary submissions on 21st July 2005, after the hearing. These submissions were drafted by Mr Potts of counsel. The Respondent submitted that there was no obligation on the delegate to give reasons for the decision. The internal Departmental minutes prepared in relation to each of the decisions (at pages 21 to 24 and pages 27 to 30 of the Court Book) were internal documents prepared for the delegate. Counsel for the Respondent submitted that the Departmental minutes in this case could be distinguished from those referred to by Smith FM in SZBGR v Minister for Immigration [2005] FMCA 824.

Conclusions

  1. In Mala v Minister for Immigration (supra at [19 – [24]), Barnes FM carried out a comprehensive and helpful study of the precise requirements of the applicable legislation. The Minister’s power to waive condition 8503 “in prescribed circumstances” comes from s.41(2A) of the Migration Act 1958. The prescribed circumstances are set out in paragraphs (a), (b), and (c) of Regulation 2.05 (4). Paragraph (a) is relevant in this case:

    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…

  2. Barnes FM stated in Mala at [20] that the Minister or a delegate of the Minister has discretion as to whether or not to waive a condition but may only exercise that discretion if the Minister of the delegate is of the opinion that the circumstances set out in Regulation 2.05(4)(a), (b) and (c) exist. While it is for the decision-maker to be satisfied whether compelling and compassionate circumstances did develop after the grant of the visa, if a jurisdictional error is established, then orders in the nature of certiorari and mandamus may be made. 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).

  3. In Terera v Minister for immigration and Multicultural and Indigenous Affairs [2003] FCA 1570 at [25] explained the meaning of compelling and compassionate circumstances by saying 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.[4]

    [4] Quoted in Mala v Minister for Immigration [2005] FMCA 556 at [22].

  4. Dowsett J said in Auva’a (supra) at [8]:

    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.

  5. In the case before me, the delegate has applied the departmental policy set out in the Procedures Advice Manual 3 (PAM3). As the Respondent has submitted, PAM3 provides guidelines on the types of circumstances which are envisaged to be compelling and compassionate circumstances for the purposes of Regulation 2.05(4). However, PAM3 has no legislative force, as the Respondent concedes, and it is an error to apply the guidelines in substitution for the wording of paragraph (a) of the Regulation. The guideline in PAM3 is an example of a situation, not a definition of the phrase in the regulation. The passages quoted from Terera (supra) and Auva’a make it clear that the decision-maker must consider whether there are compelling and compassionate circumstances that result in a major change to the person’s overall circumstances. It is impermissible to restrict the plain words of the regulation to mean ‘fitness to travel’ and nothing more.

  6. In this case I am satisfied that there has been a jurisdictional error. The decision-maker has asked whether there are compelling and compassionate circumstances that result in the First Applicant being unable to travel to Tonga in an aircraft, instead of asking whether there were compelling and compassionate circumstances that resulted in a major change to the First Applicant’s overall circumstances. This is a jurisdictional error. There was medical evidence to show that the First Applicant had suffered from a sudden and apparently irreversible memory loss which would have a significant effect on her life even though having very little effect on her physical ability to travel. By asking the wrong question, the delegate fell into jurisdictional error.

  7. I am satisfied that there are circumstances that justify the granting of orders in the nature of certiorari and mandamus.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  16 November 2005


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