Sese v Minister for Immigration and Multicultural Affairs
[2000] FCA 326
•31 MARCH 2000
FEDERAL COURT OF AUSTRALIA
Sese v Minister for Immigration & Multicultural Affairs [2000] FCA 326
MIGRATION – application for review of decision by Minister’s delegate to refuse to waive visa condition – whether sufficient “compelling and compassionate circumstances” since visa granted to justify waiver
Migration Act 1958 (Cth) s41
Migration Regulations Schedule 8, Item 8503, Reg 2.05(4)VALENTIN SESE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 326 OF 1999
MARSHALL J
MELBOURNE
31 MARCH 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 326 OF 1999
BETWEEN:
MR VALENTIN SESE
APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
31 MARCH 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 326 OF 1999
BETWEEN:
MR VALENTIN SESE
APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MARSHALL J
DATE:
31 MARCH 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mr Valentin Sese has applied for an order under Part 8 of the Migration Act 1958 (Cth) (“the Act”) to review two decisions of a delegate of the respondent. The first of those decisions was to refuse a request by Mr Sese to waive a condition imposed on a visitors visa granted to him. The second decision was to refuse to reconsider the first decision.
Factual background
Mr Sese is a citizen of the Phillipines. He was born in Manila on 25 June 1956. In 1990 he applied to migrate to Australia but his application was refused. On 15 January 1999 Mr Sese applied for a tourist visa to enable him to visit Australia. In response to a question on the application form concerning whether there was any reason, other than tourist related, why he wanted to visit Australia, Mr Sese wrote that:
“To visit my mother, to be with her on her 68th birthday on January 20, 1999 and also celebrate my 43rd birthday with her on June 25, 1999.”
On 19 January 1999 Mr Sese was granted a sub - class 676 visitor visa. The visa was conditionally granted. The visa condition (“condition 8503”) was imposed. Condition 8503 provides as follows:
“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.”
See Schedule 8, Item 8503 of the Migration Regulations.
Also on 19 January 1999, Mr Sese acknowledged in writing that he understood that:
·“I cannot be granted a further visa in Australia allowing me to extend my stay beyond the six (6) month period authorised by this visa.
·I cannot be allowed to seek or apply for authority to settle permanently in Australia during my visit.”
By letter dated 10 May 1999, a firm of migration agents wrote to the State Director of the respondent’s department requesting that the respondent waive condition 8503. The submission noted that during the course of his stay with his mother, Mr Sese discovered that she had been hospitalised on two occasions, “the last of which was in December 1998”. The letter also stated that:
“The applicant did not learn much of the seriousness of the condition of her (sic) mother, until he was around with symptoms appeared to be continuing and his departure will not only keep her depression and heart problem intensely, it will cause her other problems related to her disease.”
The submission included two brief medical reports. The first report from Dr Preetijain, referred to Mr Sese’s mother as having “had several medical condition (sic)”. It further stated that “(s)he lives alone and would benefit if a family member lives with her”. The second report was from Dr Nelson. It was in the following form:
“8 May 1999 7-8/8 Gilbert St., 3228
To whom it may concern
Re: Magdelena Panlilo
Date of birth: 1/20/31
Dear Sir/Madam,
I have been involved in Magdelena’s medical care for approximately 5 years.
Magdelena suffers at least 2 major health problems namely:-
i)Depression-major
ii)Ischaemic heart disease (for which hospital attendance been required).
Magdelena’s son Valentin Sese is required to assist her in
1)her activities of daily living such as shopping, cooking and general hygiene.
2)Assistance when out of the house to ensure she does not fall.
3)To offer support to a major woman suffering from major depression
4)To prevent risk around the home ie. her sister reports that with her depression Magdelena has been forgetful to the point of leaving her gas on.
I feel Magdelena does require her son’s Valentin’s assistance as a major carer.
Yours sincerely,
Dr Robert Nelson
MBES, DGM(Melb)”On 28 May 1999, a delegate of the respondent refused Mr Sese’s request for a waiver of condition 8503. On 2 June 1999 Mr Sese’s migration agent requested a reconsideration of the 28 May 1999 decision. On 9 June 1999 the respondent’s delegate declined to reconsider his decision.
The legislative context
Section 41 of the Act provides as follows:
“41 Conditions on visas
(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) while he or she remains in Australia; or
(b)a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i)any work; or
(ii)work other than specified work; or
(iii)work of a specified kind.
(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).
(3)In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.”
Section 41(2A) of the Act was introduced into the Act on 1 March 1999. Regulation 2.05(4) of the Migration Regulations, at all times material to the application before the Court, provided that:
“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)compelling and compassionate circumstances circumstances have developed since the person was granted the visa that was subject to the condition; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances 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 decisions of the delegate subject to review in this proceeding are judicially reviewable decisions. See s475(1)(c) of the Act.
The delegate’s reasoning
The essence of the delegate’s decisions is that he did not consider that the “prescribed circumstances” set out in Reg 2.05(4) of the Migration Regulations had been met. He did not consider that “compelling and compassionate circumstances [had] developed since [Mr Sese] was granted the visa”. The delegate referred, in his second decision, to the fact that the hospitalisation of Mr Sese’s mother pre-dated Mr Sese’s application for a visa. In the first decision, reference was made to Mr Sese’s mother having “continual home support from her sister and there is also another family member in the Geelong area to help out”.
Mr Sese’s representation and submissions
The application before the Court was filed on 18 June 1999. At that time Schetzer, Brott and Appel, solicitors, represented Mr Sese, with Mr Shulman having the carriage of the matter within that firm on behalf of Mr Sese. On 20 August 1999 a notice of change of practitioner was filed. Schetzer, Brott and Appel ceased to act for Mr Sese and Zolis, Barristers and Solicitors (“Zolis”) commenced to act, again with Mr Shulman in charge of the matter for Mr Sese. Contentions of fact and law were filed on behalf of Mr Sese on 16 September 1999. Those contentions were prepared by Mr Krohn, of counsel. The respondent’s contentions were filed on 5 October 1999. On 11 October 1999 the application was listed for hearing on 7 March 2000. On 25 November 1999, Zolis filed a notice of ceasing to act for Mr Sese. Mr Sese thereafter remained unrepresented and appeared for himself at the hearing of the application. Mr Sese declined to adopt the contentions which were prepared by Mr Krohn. He confined his submissions to an affidavit which he filed at the hearing which, insofar as is material, provided as follows:
“3.I believe that the decision-maker erred in law by holding that the ‘circumstances’ relevant to my request for waiver of 8503 condition is confined to circumstances of my mother’s medical condition that existed and remained purportedly the same before my visitor’s visa was granted until this case was heard by the Department of immigration & M-Affairs to present;
4.While evidence indicates that the medial condition of my mother has been worst now than ever before as shown by recent hospitalization report. The word compelling or compassionate ‘circumstances’ should cover circumstances involving our culture, how we love our parents when they need us, my close relationship to her, my ability and willingness to assist her in ways regarded as necessary by her doctor. This change in circumstances which I believe is compelling and compassionate that had developed since I was granted my vistitor’s visa;
5.My mother with various ailments appeared helpless and desolate is slowly getting worse as evidence by her recent admission to hospital with report included here with no adequate support coming from elsewhere.
6.I believe my request has its merit and my application to waive the 8503 condition was decided without regard to the merit of my case. Hence the decision was an improper exercise of power conferred by relevant Act or regulations.”
Certain medical reports were attached to that affidavit. Mr Rawson, of the Australian Government Solicitor’s office, appeared for the respondent. Mr Rawson objected to the Court receiving new evidence at the hearing. Ultimately, Mr Sese did not press for the reports to be treated as evidence but as an aid to his submissions which were encapsulated in his affidavit.
Submissions of the Respondent
Mr Rawson submitted that the delegate was correct in deciding that no compelling and compassionate circumstances had developed since 19 January 1999, particularly in light of the evidence that Mr Sese’s mother had been suffering from her medical condition since at least December 1998. In the submissions prepared by counsel for Mr Sese in September 1999 it was put that:
“The compelling and compassionate circumstances, however, which arose after the grant of the visa, were the dependence of the mother on the assistance of the applicant, and the risk of aggravating severe depression and her heart condition if the applicant was not permitted to remain.”
Mr Rawson submitted that there was no evidence before the delegate that a relationship of dependence had arisen between Mr Sese and his mother since Mr Sese came to Australia. I accept that submission. The evidence reveals that Mr Sese’s mother requires the assistance of others but not specifically care from her son.
In fairness to Mr Sese I have considered that part of the contentions prepared by counsel relevant to the identification of claimed “compelling and compassionate circumstances” in the absence of a specific identification by Mr Sese in his written submission of what he contended were “compelling and compassionate circumstances” which had “developed since [Mr Sese] was granted the visa”.
Mr Rawson also, in an outline of submissions prepared for the hearing, dealt with other matters which had been addressed in the respondent’s contentions which were filed last year. It is unnecessary to deal with those matters as no reliance was placed upon them by Mr Sese. However, in fairness to Mr Sese it is pertinent to add the following:
· The delegate, contrary to the contentions of Mr Sese’s former counsel, did not have regard to, or place any reliance upon, the respondent’s procedures advice manual (“the manual”) in applying Reg 2.05(4)(a) of the Migration Regulations.
· No contention that the delegate engaged in an improper exercise of power on that account can be made out as a result of the irrelevance of the manual of this proceeding.
The central issue
The central issue for determination in this matter is in short compass. Did the delegate of the respondent err in deciding that no compelling and compassionate circumstances had relevantly developed since the grant of the visa? Assuming that Mr Sese’s mother’s medical condition provided such circumstances, there was no evidence of the development of that condition since the grant of the visa at the time of the delegate’s decisions. Accordingly, it cannot be said that the delegate erred in law.
Addendum
The Court appreciates the desire of Mr Sese to spend time with his mother, given her age and state of health. Should he return to the Phillipines it is possible that Mr Sese may never see his mother again. However much the Court may understand the emotional needs of Mr Sese, such factors cannot govern its consideration of whether a legal error had occurred. In the absence of discerning such an error the Court must dismiss the application and regrettably, I will so order, with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 31 March 2000
Counsel for the Applicant: Mr Valentin Sese appeared for himself. Counsel for the Respondent: Mr Craig Rawson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 March 2000 Date of Judgment: 31 March 2000
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