Petrenko v Minister for Immigration
[2007] FMCA 1793
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PETRENKO v MINISTER FOR IMMIGRATION | [2007] FMCA 1793 |
| MIGRATION – Short stay visitor visa – whether jurisdictional error. PRACTICE AND PROCEDURE – Adjournment application – application refused. |
| Migration Regulations 1994 (Cth), reg.2.05(4) Migration Act 1958, ss.41(2A), 57 Federal Magistrates Act 1999, s.45 |
| Re Vanstone and Another; Ex parte Auva'A (2003) 134 FCR 379 SZEEU v Minister for Immigration and Multicultural & Multicultural & Indigenous Affairs (2006) 150 FCR 214 |
| Applicant: | ALINA PETRENKO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 882 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 October 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 26 October 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the Respondent: | Mr A. Dinelli |
| Solicitor for the Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 882 of 2007
| ALINA PETRENKO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
In these proceedings the Applicant is a Ukranian national who had entered Australia on a short stay (Visitor) (Class TR) subclass 676 visa ("the visitor visa") on 30 March 2007.
It is of significance that the visitor visa contained what is described as condition 8503, which prevented the Applicant from making an application for any further visa, apart from a protection or bridging visa, whilst in Australia. The visitor visa permitted the Applicant to stay in Australia until 30 June 2007.
The Applicant had applied for the visitor visa on 7 February 2007.
A copy of the application appears in the Court Book (pp.1-15). It is evident from the application that the Applicant indicated that the dates she wished to visit Australia were set out as 20 March 2007 to 20 June 2007 (Court Book p.1).
It is also evident from the Court Book that the application completed by the Applicant which appears in the Court Book is an application described as "Form 48R RUS RUSSIAN". Part of the form includes a declaration which appears in paragraph 48 (Court Book p.14). The declaration includes, amongst other items, the following:
“Having read the ‘Conditions for a tourist visa to Australia’ on page 2 of this form:
…
·I understand that the effect of the 8503 visa condition is that it will not be possible for me to apply to remain in Australia beyond the authorised period of stay with my visa. I agree to having this condition included on any visa issued to me as a result of this application.
· I acknowledge that I understand that if the 8503 visa condition is imposed on my visa, it will be indicated on the visa label, or in documents given to me by the department about the grant of my visa, by the condition code '8503' and by the short description 'No Further Stay'.
· I acknowledge that this means that the 8503 condition has been imposed on my visa, that I am required to depart Australia before the end of the period of stay authorised by my visa and that I understand the restriction that condition 8503 places on me.
· …
(Court Book p.14)
It is not in dispute that the Applicant signed the declaration set out above and that on 14 February 2007 the visitor visa was granted to the Applicant with no further stay condition. On 6 June 2007 the Applicant, through her son Oleg Petrenko, lodged a request for waiver of the "no further stay conditions" (Court Book pp.85‑90).
It is evident from the request for waiver of the no further stay conditions that the following appear as the basis for the request, which I note has been accurately summarised in the Respondent's contentions in the following form:
(a)the applicant initially wanted to stay in Australia for six months and, possibly, for a further three month period [CB 86.2];
(b)elections were soon to be held in Ukraine and the life of a pensioner would be difficult for the applicant even if financial support were offered to her [CB 86.3];
(c)she had been informed by the Australian Embassy in Moscow that she should apply for a three month visa and she could extend her stay while in Australia [CB 86.4];
(d)the applicant had had difficulties in the past obtaining a visitor visa, requiring her to re-submit her application three times and this evidenced the fact that the customer service representatives at the Australian Embassy in Moscow ‘do everything to make the applicants life difficult’ [CB 86.5];
(e)there was no letter of approval or other correspondence issued after the visa was granted informing the applicant of the no further stay condition [CB 86.7]; and
(f)the applicant was deliberately misled [CB 86.8]” (sic)
On 25 June 2007 a delegate of the Respondent refused the request to waive the no further stay condition (Court Book pp.94‑95) ("the delegate's decision"). The Applicant filed an application seeking judicial review of the delegate's in this Court on 28 June 2007. It is noted that in that application the Applicant sets out the following grounds:
“(1)The DIAC erred in law by failing to find whether or not the applicant satisfied the requirements of Reg 2.05.
(2)The DIAC failed to decide the application in accordance with the requirements of natural justice.”
It is relevant to include in this decision reg.2.05(4) of the Migration Regulations 1994 (Cth) ("the Regulations"), which provide as follows:
(4) For subsection 41 (2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41 (2) (a) of the Act are that:
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person's circumstances; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c)if the person asks the Minister to waive the condition, the request is in writing.
Section 41(2A) of the Migration Act 1958 (the Migration Act) provides:-
“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).”
It is also noted that the delegate must be satisfied that the cumulative conditions set out in the regulation have been met by the Applicant. So much is clear from an ordinary reading of the regulation.
Preliminary Issues
When the hearing commenced, the Applicant, who is self‑represented, appeared with the assistance of an interpreter and the Court permitted her son to act as a McKenzie friend. The Court refused permission for the son, who is not a lawyer, to appear on behalf of and represent the Applicant.
However, it was evident throughout the hearing that, acting as a McKenzie friend sitting at the bar table, the Applicant's son was able to speak to the Applicant in the Russian language and the Applicant on many occasions was able to repeat what appeared to be almost word for word the Russian words provided by her son, which in turn were translated by an interpreter.
It should also be noted that due allowance was made to the Applicant, given that she is not a lawyer and did not have the benefit of legal representation.
At the commencement of the proceedings the Applicant sought an adjournment of the application, pending receipt of certain documentation, to which reference will be made presently. It should be noted that after the initial hearing the matter was adjourned over the luncheon period to enable the Applicant to prepare to make submissions concerning the relevance of the documents relied upon in support of her application for an adjournment.
As it happened, the interpreter who was available in person during the morning session was not available during the afternoon session. Arrangements were then made for a qualified interpreter to provide interpreting services by audio‑link. I was satisfied that the process worked effectively and that there was no disadvantage to the Applicant who, with the assistance of her son, was able to respond accurately to the issues raised both in relation to the adjournment application and the substantive application.
The Adjournment Application
The Applicant applied for an adjournment on the basis that documents recently received from her solicitor were incomplete, to the extent that she had not yet received what she claimed to be an original application for a visa sponsored by her son, which she had taken to the Australian Embassy in Moscow prior to completing the visitor visa application which appears in the Court Book.
The Applicant claimed that, having spent approximately two months preparing her application with the assistance of a solicitor, she believed that it was that application which would be processed by the Department officer. When the document was produced, she claimed that it was not processed but instead she was provided with the application which is currently before the Court for the visitor visa, which, as indicated earlier, she signed.
The Applicant further complained that the form which she had prepared did not have attached to it conditions, a copy of which was handed to the Court during the proceedings entitled "Undertaking visa grant subject to Condition 8503 'no Further Stay'". That is described as form "1153". A blank version of the form was handed to the Court, and the Applicant indicated that it was not part of the form she had originally prepared.
That fact, together with the absence of her original form, combined with her complaint that her form had not been processed but rather that she had been required in a period of approximately 15 minutes to fill out another form, caused the Applicant to submit that the application should be adjourned pending the production of the original application form apparently lodged by the Applicant.
That form is the subject of a freedom of information request which was apparently completed on behalf of the Applicant on 17 October 2007. The Court received, for the purpose of the adjournment, a document entitled “Request for access to documents”, where the document details requested are described in the following terms:
“Copy of ‘Application to visit Australia for tourism’ presented on arrival to the embassy 7/02/2007. The form was rejected due to the fact that updated application needs to be filled on the spot.”
It should be noted that the Court granted a great deal of latitude to the Applicant to make submissions in relation to the circumstances surrounding her attendance at the Australian Embassy. It also made concessions by permitting the Applicant to rely upon the documents to which reference has been made without formally tendering those documents as exhibits. It did so solely for the purposes of the application for adjournment, and, in relation to the adjournment application, the Court is prepared to accept the version of events set out by the Applicant in her submissions.
The Applicant claimed that this application would be prejudiced if she was not able to produce the original application which she had taken with her to the Australian embassy on the day when her visitor visa application was completed. She claimed that the conditions, although absent from her original form which applied to what may be described as the sponsored visa application, were different in content from the conditions set out earlier in this judgment which were the subject of the declaration of the visitor visa application completed by the Applicant.
The Respondent submitted that the adjournment should not be granted, on the basis that the document, even if produced, is not relevant to the Court's judicial review of the delegate's decision. It was argued that the decision was a decision which related to a request for waiver of the no further stay condition and that production of another visa application would not be relevant to the Court's determination of that issue.
At the hearing, the Court indicated that it would refuse the adjournment and provide reasons for the refusal in writing. The reasons of the Court for refusing the adjournment are that I am not satisfied that the documents as described by the Applicant are relevant to the dispute before the Court.
In my view, the mere production of another form, albeit duly completed by the Applicant with perhaps conditions of a kind different to the conditions which attach to the visitor visa under consideration by the delegate and by this Court, does not provide material which is relevant for the exercise of the delegate's decision‑making pursuant to reg.2.05 set out earlier in this judgment.
Whilst the Applicant may express concern and dissatisfaction and indeed whilst her son as sponsor of the original application likewise may express concern at the process followed, that of itself does not render the original application relevant for determination by this Court nor indeed by the delegate. What is relevant is whether the delegate has properly applied the criteria in considering the request for waiver of the 8503 'no further stay' condition on the visitor visa which was granted to the Applicant on 14 February 2007.
Having regard to the grounds in the application and the submissions made by the Applicant, I do not regard the documents now sought to be produced pursuant to Freedom of Information Legislation as being relevant to the Court's determination of the issues now before it. It was for that reason that the Court refused the adjournment.
It is noted that the Respondent sought to further rely upon the issue of delay on the part of the Applicant in seeking the documents, assuming that the Court were to find, contrary to its earlier finding, that the documents were indeed relevant. The delay was set out in an affidavit of the solicitor for the Respondent, Ms Udara Asangi Jayasinghe, affirmed 18 October 2007.
In my view, it is not necessary to consider the issue of delay as I have already found that the documents referred to by the Respondent are not relevant to the further hearing of this application for judicial review and not relevant to the determination by the delegate, for reasons which will become further apparent in this judgment.
In any event, if I am in error in not regarding delay as a matter the Court needs to consider, I am prepared to give the benefit of the doubt to the Applicant, given the difficulties which may be involved in obtaining documents from the Ukraine and from Russia.
The delay, in my view, has not been inordinate, and that of itself would not have caused the Court to refuse the adjournment. Rather it is, as I have indicated earlier in this judgment, the finding that I have made that the documents sought to be relied upon are not relevant to this Court's proceeding which has caused the Court to refuse the adjournment.
The Substantive Application
The Applicant's complaint in relation to the delegate's decision appears to be a complaint having regard to the grounds based upon what might be described as a failure on the part of the delegate to properly consider the requirements of reg.2.05. The Respondent has submitted that the delegate correctly identified and applied the appropriate test in relation to reg.2.05.
It was noted that the delegate identified the fact that the Applicant intended to apply for a six-months stay at the outset and that so much was clear from the delegate's decision (Court Book p.95). The delegate otherwise considered any circumstances which might constitute compelling and compassionate circumstances which have developed "since the person was granted the visa that was subject to the condition".
It was noted, given the intention of the Applicant to stay for six months that existed prior to application for the visitor visa, that any other factors mentioned in her application would not be sufficient to bring them within the requirement that circumstances have arisen since the time the visitor visa was granted.
It was argued that, to the extent that the Applicant seeks to challenge the delegate's decision based on incorrect procedures and/or advice provided by the Australian Embassy in Moscow, those matters are what the Respondent submitted to be "extraneous to the decision being made by the delegate".
In my view, in relation to the alleged failure to comply with the requirements of reg.2.05, the Respondent's submissions are correct. The delegate has correctly applied, cumulatively, the provisions of reg.2.05. I am further strengthened in the conclusion by reference to the decision relied upon by the Respondent of the Federal Court in Re Vanstone and Another; Ex parte Auva'A (2003) 134 FCR 379 (Re Vanstone) where Dowsett J relevantly states as follows:
“18.As to her lack of knowledge of the 8503 condition, such ignorance must have commenced at the time at which the visa was issued and so cannot be a circumstance which arose thereafter. In any event, if she chose not to inquire as to the terms upon which she was entering Australia, then any subsequent ignorance was a matter entirely within her own control. Further, that approach in no way caused any change in her situation. Her subsequent discovery of her error in this regard also cannot be seen as in any way changing her circumstances.”
That paragraph applies, in my view, with equal force and effect to the circumstances of the current application.
The issues raised by the Applicant in the present case appear to be issues which at least raise the prospect of the Applicant not being aware of Condition 8503, as she claimed not to be fully aware of the conditions she signed in the declaration, and/or the confusion, leading to ignorance, arising from her complaint concerning the rejection of her application and the procedure followed thereafter.
Included in the complaint, by inference, is a concern regarding the advice which is claimed to have been given to the Applicant by officers of the Department when the Applicant completed her application and attended the Respondent's office.
Those matters, following the authority of the Federal Court in Re Vanstone, in my view, should not be factors which would or should influence the outcome of the delegate's decision and nor does failure to take those matters into account provide any or any proper basis upon which the Court can be satisfied that the delegate has failed to correctly apply the criteria set out in reg.2.05. Hence, in my view, this ground should fail.
The Applicant sought to further argue that there had been a failure to accord natural justice. To a large extent, the Applicant was only able to repeat her complaints, which I set out earlier in this judgment, and those complaints seem to be based upon the Applicant's lack of awareness concerning the no further stay condition imposed upon her.
Again for the reasons given earlier in this judgment and having regard to the decision of the Court in Re Vanstone, I do not regard the Applicant's claimed ignorance of the conditions as being any or any proper basis upon which it could be concluded that there has been a denial of natural justice.
The Respondent has otherwise argued in relation to this ground that, whilst s.57 of the Migration Act imposes a requirement that the Applicant be given relevant information, the question the Court should ask in the present case, by reference to the reasons of the delegate in the context in which one finds them is whether the information in question was the reason or any part of the reason for the decision of the delegate.
It was argued, applying the reasoning of the Court in SZEEU v Minister for Immigration and Multicultural & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 262 per Allsop J at [215], that in the present case the delegate did not treat any of this information as the reason or part of the reason for rejecting the Applicant's request. Accordingly, the Respondent submits, applying that authority, this ground should fail.
In my view, the Applicant has failed to establish this ground. I do not find any denial of natural justice in the procedure followed in this instance. There has not been any denial of natural justice in the delegate's decision and I accept the submissions made for and on behalf of the Respondent that the reference to the earlier events was not information which could properly be regarded as being the reason or part of the reason for the delegate rejecting the Applicant's claim for waiver of the 8503 no further stay condition. Instead, I am satisfied that the delegate in the delegate's decision has simply applied the cumulative criteria set out in reg.2.05 in a manner free of jurisdictional error.
Conclusion
It follows, for the reasons given, that the appropriate order of the Court is that the application be dismissed with costs.
I should add that during the course of submissions I permitted the Applicant to hand to the Court a letter written in Russian purportedly from her solicitor in the Ukraine, which was, helpfully, translated by the interpreter for the benefit of the Court and the parties. That letter appeared to refer to attached documents. However, those documents were not produced.
The Court was prepared, however, to note that at the very least there was a solicitor acting for and on behalf of the Applicant in the Ukraine who was endeavouring to obtain relevant documents. However, for the reasons given, it is my concluded view that the documents, even if obtained through the efforts of the solicitor in the Ukraine or in response to any freedom of information request, would not in any event be relevant to the disposition of this application and, as indicated, does not justify an adjournment and hence I have proceeded to consider the substantive application and reach the conclusion set out earlier in this judgment.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 October 2007
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