Smal v Minister for Immigration
[2003] FMCA 159
•23 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMAL & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 159 |
| MIGRATION – Review of two decisions of delegate of respondent to refuse to waive condition on visitor visa – whether applicants denied procedural fairness – whether delegate lacked authority to make second decision – identity of the decision maker – second decision set aside. COSTS – No costs order where two applications heard concurrently, with the applicants failing on the first application and succeeding on the second. |
Minister for Immigration; ex parte Lam [2002] HCA 6
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
First Applicant: Second Applicant: | SUSANNA JACOBA HERMINA SMAL JOHANNES URBANUS HENDRICK SMAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Nos: | SZ1039 of 2002 SZ1364 of 2002 |
| Delivered on: | 23 April 2003 |
| Delivered at: | Sydney |
| Hearing date: | 23 April 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Yandell Wright Stell |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS – SZ1039 of 2002
The application is dismissed.
There is no order as to costs.
ORDERS – SZ1364 of 2002
The Court declares that:
The purported decision of the delegate of the respondent Minister made on or about 29 November 2002 is invalid and of no effect.
The Court orders that:
The Minister is prohibited from acting in reliance upon the purported decision of the delegate.
The purported decision of the delegate is set aside.
The matter is remitted to the respondent for redetermination according to law.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1039 of 2002
SZ1364 of 2002
| SUSANNA JACOBA HERMINA SMAL |
First Applicant
JOHANNES URBANUS HENDRICK SMAL
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These proceedings concern applications to review two decisions of a delegate of the respondent to refuse to waive condition 8503 which applied to visitor visas sub-class 676 of the applicants. The applicants are a husband and wife from South Africa and the visas in question were issued in South Africa on 24 January 2002. The two applications numbered SZ1039 of 2002 and SZ1364 of 2002 were heard concurrently. The application in matter SZ1039 of 2002 is an application to review the first decision of a delegate of the respondent. The application in SZ1364 of 2002 is an application to review the second decision.
The original applications filed were not particularly illuminating. However, I gave leave to the applicants to file in court today an amended application in relation to both matters. In matter SZ1039 of 2002 the applicants claim a declaration that the decision of the respondent was made in excess of jurisdiction and is null and void. They also claim that they were denied natural justice. The application in matter SZ1364 of 2002 is that the applicants were denied natural justice and that the decision was made in excess of jurisdiction in that the decision maker lacked the authority to make the decision.
The applicants were represented at trial today by Mr Turner. As appears in his outline of submissions in both matters filed on 17 April 2003, and elaborated upon orally today, the applicants' attack on the first decision centres upon the issue of a breach of natural justice (procedural fairness) in that it is said that a medical report obtained by the Commonwealth in relation to the medical condition of Mrs Susanna Smal should have been made available to the applicants in order for further submissions to be made. It was not so made available.
In relation to the second decision, the attack on the decision is based also on a breach of procedural fairness in that it is submitted that the respondent, having obtained a medical report from Health Services Australia in relation to the medical condition of Mrs Smal, had engaged in conduct that gave rise to a legitimate expectation that the same procedure would be followed on the second occasion, and it was not. In addition, the applicants claim that the decision maker in the second decision was not authorised to make the decision in that the decision maker did not hold a valid delegation.
The general background circumstances are set out in paragraphs 4, 5 and 7 of the written submissions prepared by Mr Smith, on behalf of the respondent, and I adopt that background as follows for the purposes of this judgment:
The first named applicant, Mrs Smal, is a 75 year old South African citizen who arrived in Australia on 4 March 2002 and appears to have left Australia again on 1 June 2002 for travel to New Zealand. The applicant and her husband arrived in Australia by virtue of a class T R Visitor (sub-class 676) Visa subject to a number of conditions including Condition 8503 (no further stay). On 12 July 2002 the solicitor for the applicants wrote to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) requesting a waiver of Condition 8503 on the basis that Mrs Smal’s physical condition had deteriorated markedly since her arrival in Australia to the point where she had become substantially dependent upon her Australian permanent resident daughter.
Mrs Smal was examined by a medical adviser employed by Health Services Australia [Dr Christine Aus]. The adviser prepared a report which was sent to DIMIA on 5 August 2002. By letter dated 9 October 2002 an officer of DIMIA informed the applicant, Mrs Smal, that a delegate of the Minister had decided not to agree to the request for a waiver of Condition 8503. It is in respect of this decision that the first proceedings (SZ1039 of 2002) were brought.
On 21 October 2002 the solicitor for the applicants made a further request for a waiver of the condition. The request was made on the basis that Mrs Smal had suffered serious circumstances after a [then] recent fall. In support of this application the applicants’ daughter and son-in-law made a statement dated 20 November 2002 describing the fall which had been suffered by the applicant. On 29 November 2002 a delegate of the respondent made a decision not to waive Condition 8503 on the applicants’ tourist visas. The applicants were advised of this by letter dated 6 December 2002. A further application (SZ1364 of 2002) was brought in respect of this decision.
As matters transpired today in argument it appeared to me that the issue of whether the decision maker on the second decision had jurisdiction to make the decision was the most significant issue. In the light of that view I will deal with it first. The court book in relation to matter SZ1364 of 2002 sets out the record of the decision at pages 20 to 22 and also contains the written advice to Mr Smal of the decision (court book, page 23). Mr Smith, for the Minister, conceded that Mr Christopher Smith, who was the author of the letter to Mr Smal at page 23 of the court book and whose name appears at the top of the record of the decision at page 20 of the court book, was not the holder of a delegation to make a decision to waive the condition attaching to the visitor visa held by these applicants. However, while the applicants contend that Mr Christopher Smith was the person who purported to make the relevant decision, the respondent contends that in fact the decision maker was Suzette Skobier and that there is no question that she did not hold a valid delegation at the relevant time. There is therefore a question of fact to be determined in order to resolve this issue. Clearly, if the decision maker did not hold a valid delegation to make the decision at the relevant time that would be an error of jurisdiction which would vitiate the decision notwithstanding the existence of the privative clause. That much is clear from the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2.
There is no evidence available directly from anyone claiming to be the decision maker. Mr Smith has submitted to me, and I accept, that there is no obligation on the decision maker in relation to waiver of such a condition on a visitor visa to give written reasons for the decision. Nevertheless, the minute, which appears in the second court book at pages 20 to 22, does set out the record of the recommendation to the decision maker and the decision maker’s decision on that recommendation. At the top left of the first page of the minute on page 20, Mr Christopher Smith's name appears with his office and position number.
On page 22 of the court book on the third page of the document, Suzette Skobier's name appears with her position number and her signature and date. Immediately to the right of her name appears the type written words:
delegate's action (a) agreed/not agreed.
(b) signed/please discuss.
It is apparent that the decision maker has circled the word "agreed" indicating that the recommendation was agreed to, and has also circled the word "signed", indicating that the decision had been signed.
There is in fact only one signature on the document and that fact, coupled with the proximity of the signature with the reference to delegate's action, supports the contention that the decision maker was Suzette Skobier, rather than Christopher Smith. As against that, commonly the person to whom a minute is directed is identified at the top left of the first page of a minute and that is where Mr Christopher Smith's name appears. In addition, the minute can be compared with the record of the decision in matter number SZ1039 of 2002. That record appears at pages 21 and 22 of the first court book.
The document in that case is not specifically directed to anyone on the first page, but the recommendation is signed on the second page by Peter Whitney, whose office is identified, and below that is set out in typescript the words "decision record" (underlined), “recommendation”, and the options “approved” and “not approved”, and the words "waiver request", and the words "granted” and “refused", with an option of “additional comments”, and the name of Gill Pickering, whose office and position number are identified. Ms Pickering has signed her name.
The layout of the decision record is not consistent between the two cases. That is not in itself surprising, given that there is no legal obligation on the decision maker to provide reasons for the decision and that the administrative practice between offices and officers may vary. I have no doubt who the decision maker is in relation to the first decision. Both the officer making the recommendation and the decision maker are clearly identified on the second page of the record of that decision (page 22, first court book).
On the face of the minute recording the second decision (pages 20-22, first court book), I do have a doubt. In my view, the record of the decision is ambiguous in identifying the decision maker. The fact that Christopher Smith is identified at the top left of the first page of the minute suggests that the recommendation was directed to him. The fact that Suzette Skobier signed the minute adjacent to the words "delegate’s action" suggests that she was the decision maker. However, it is also possible that she was the person making the recommendation, given that no other signature appears of any author of the recommendation. Ordinarily, one would expect that the person making the recommendation would sign the document.
Given the ambiguity of the record of the second decision, it is appropriate that I have regard to any secondary evidence of the decision. That secondary evidence is in the form of a letter from Christopher Smith to Mr Smal (second court book, page 23). In that letter in the second paragraph, Mr Smith says:
After careful consideration of the relevant legislation and the circumstances you presented in your request, I have determined that you failed to satisfy a legislative criteria for the 8503 condition to be waived. Consequently, your request has been denied and the condition remains in effect.
In the fourth paragraph, Mr Smith writes:
Based on the information presented, I have determined that you failed to satisfy regulation 2.05(4)(b) in demonstrating circumstances that are substantially different from those considered previously.
The two statements by Mr Christopher Smith that he has made a determination supports the contention that he was the decision maker. Mr Smith, for the Minister, has pointed out that Mr Christopher Smith in the letter moved from the active to the passive voice in stating that the request for waiver of the condition had been denied. He suggested that the reference to Mr Christopher Smith making a determination could simply be a reference to him forming a view. I reject that contention. In my view, it would be not only extremely unusual, but illogical, for a person making a recommendation to an administrative decision maker to take the trouble to advise the person affected by that decision that they had formed any particular view. If the decision maker is not required to give reasons, what would be the point of the person who made a recommendation to the decision maker giving reasons for the recommendation? The ordinary and, in my view, plain meaning of the reference to having made a determination is that Mr Smith was holding himself out to be the decision maker. I note, in addition, that the terminology used by Mr Christopher Smith in the letter dated 6 December 2002 is markedly different from the terminology used by Peter Whitney in the letter dated 9 October 2002, which advised of the first decision (first court book, page 20).
While the factual issue of who was the decision maker in respect of the second decision is a matter of some doubt, in my view, based on a combined reading of the record of the second decision, the record of the first decision, the letter of 6 December 2002 from Mr Christopher Smith to Mr Smal and the letter of 9 October 2002 to Mrs Smal, on the balance of probabilities, the decision maker in relation to the second decision was Mr Christopher Smith. Having regard to the concession that Mr Christopher Smith did not have a valid delegation to make a decision on behalf of the Minister at the relevant time, the decision maker lacked jurisdiction to make the decision and the applicants are entitled to prerogative relief in relation to that decision.
While it is not strictly necessary to do so, I reject the applicant's contention that the second decision was also vitiated by jurisdictional error by reason of procedural unfairness. That argument, as I have already noted, is based on the contention that the applicants had a legitimate expectation that, on their second application for waiver of condition 8503, the Immigration Department would follow the same procedure it had followed in response to the first request, namely to refer Mrs Smal to Health Services Australia for a medical assessment. There was no such referral on the second occasion.
In my view, the applicants did not have any legitimate expectation that the same procedure would be followed for several reasons. The first is that the medical report obtained from Health Services Australia on the first occasion (second court book, at page 1) included a statement that it was reasonable to review Mrs Smal's condition after a specialist consultation, which had been proposed for October 2002, although Dr Christine Aus' preference was for a geriatric review. In the first application the applicants had sought waiver of condition 8503 on the basis of medical conditions then suffered by Mrs Smal, and noting that a specialist consultation had been scheduled for October 2002. As matters turned out, that specialist consultation was carried out. However, it did not add materially to the relevant considerations before the decision maker. In my view, it was both reasonable and proper for the decision maker to rely upon the opinion received from Health Services Australia on the first occasion, supplemented by the specialist opinion obtained in October 2002.
Secondly, the referral to Health Services Australia had been sought on the first occasion by the applicants. Mr Smith submitted, and I accept, that the Immigration Department has no power to compel a person to attend a medical examination where the grant or refusal of a visa is not an issue. This case concerned a request to waive a condition attaching to a visa. While the applicants did, on the second occasion, request the referral of Mrs Smal once again to Health Services Australia, that request was made relatively late and only after the opinion from Dr Aus had been made available. In my view, there was nothing about the matters raised initially by the applicants in relation to their second request that required a second referral of Mrs Smal to Health Services Australia. In any event, that was not initially requested on the second occasion.
In relation to matter number SZ1039 of 2002 there is no issue about the entitlement of the decision maker to make the decision. The only real issue is whether there was a breach of procedural fairness. Mr Turner submitted to me that procedural fairness required that the applicants be given a copy of the opinion of Dr Aus of Health Services Australia and be given an opportunity to comment on it. It is common ground that the rules of procedural fairness apply in the case of a decision whether or not to waive a no further stay condition on a visitor visa, given the impact of such a decision on the rights of the individual. However, the content of the requirements of procedural fairness will vary. As I have already noted, there was no obligation on the decision maker to provide written reasons for the decision. It is open to debate whether persons requesting waiver of a condition on a visitor visa are entitled to a hearing of any kind in addition to their right to make a request and submit material in support of that request.
Assuming for present purposes the fair hearing rule applied, I accept Mr Smith's submission that the obligation had not been breached. It was the applicants who raised initially the proposition that Mrs Smal might be referred to Health Services Australia and that proposition was adopted by the Immigration Department. It is apparent from a reading of Dr Christine Aus' opinion, after examining Mrs Smal, that her assessment was formed substantially, but by no means entirely, from the history provided by Mrs Smal. To the extent that the medical assessment was based on the history provided by Mrs Smal or, indeed, from earlier medical opinions from South Africa, that was information already known to the applicants.
Dr Aus did state that Mrs Smal has no new medical conditions arising during her visit to Australia. It is debatable whether that was based on history or was an opinion or diagnosis. The record of the first decision describes it as a diagnosis. However, the medical history provided to Health Services Australia, in my view, also establishes on the facts that the medical conditions that Mrs Smal complained about were pre-existing.
The more substantial issue was whether those pre-existing medical conditions had deteriorated following Mrs Smal's arrival in Australia such that a justification existed for removing the condition on her visitor visa. Dr Aus writes in the second last paragraph of her assessment:
I believe that Mrs Smal was unfit to travel to Australia in March this year and logically is unfit to leave at present. She could travel in an extended/reclined seating position to alleviate back pain and would need assistance for toileting. She does not have any medical conditions that are significantly worsened by altitude or cabin pressure, i.e. there are no cardio respiratory problems.
This is clearly an opinion. It logically bears on the question of whether Mrs Smal's condition had deteriorated since she arrived in Australia. It amounts to an opinion that Mrs Smal’s condition was unchanged. There appears at first examination to be an inconsistency between the first sentence and the second and third sentences. That could be explained if Dr Aus was venturing the opinion that Mrs Smal was in general terms unfit for travel but that she could, with special arrangements, undertake travel.
The record of the first decision does not specifically deal with that expression of opinion by Dr Aus. However, the second page of the recommendation includes a list of attachments which appears to identify Dr Aus' opinion. It is therefore reasonable to surmise that the decision maker was aware of Dr Aus' opinion and could have taken it into account if considered relevant. The record of the decision does not constitute the reasons for the decision and it is not possible for me, on the basis of the material before me, to determine precisely what considerations the decision maker considered relevant in arriving at the first decision.
Be that as it may, it is apparent that the applicants became aware that some form of report had been prepared by Dr Aus and submitted to the Department following Mrs Smal's examination. They were, of course, aware of the examination. Mr Turner appears to have received instructions about the apparent preparation of a report by Dr Aus prior to the first decision being made. That appears in the third paragraph of his letter to the Department dated 9 September 2002 (first court book, page 18).
Mr Turner, of course, had not seen the report by that stage and neither had his clients but the opportunity did exist at that time to ask to see it. That opportunity was not taken up. In order for there to be a finding of procedural unfairness there must be procedural unfairness in fact: Minister for Immigration; ex parte Lam [2003] HCA 6. In my view, in this matter the applicants did have a reasonable opportunity prior to the making of the first decision to obtain Dr Aus' report and comment upon it.
In addition, the applicants had an opportunity to make a second request for the waiver of the condition attaching to the visitor visa, and did have an opportunity to make submissions based upon Dr Aus' opinion prior to that second decision being made. Whether one views the process as a single process involving two decisions or separate processes involving two decisions, in my view, procedural unfairness based upon the non-provision of Dr Aus' report has not been established. I will, therefore, dismiss the application in matter SZ1039 of 2002. I will grant the application in matter SZ1364 of 2002.
I have heard the parties as to costs. The following considerations are relevant. The first is that the applicants have been successful on the second application, but the Minister has been successful on the first. The applications were heard concurrently and were filed within a reasonably short space of time of one another. The second consideration is that both applications were fundamentally amended in the form of amended applications filed in court today.
The Minister and his legal representatives had some short notice of those amendments prior to the hearing, but the written submissions prepared and filed on 17 April 2003 on behalf of the Minister were prepared without knowledge of the amended application or written submissions on behalf of the applicants and were largely to no purpose.
The issue here is not so much that the case changed so that earlier costs incurred were thrown away; it is rather that prior to the preparation of the applicant's written submissions and the amendment of the application there was really no case to answer. It was only when the legal issues were properly identified in the applicant's outline and amended application that a case to answer became apparent.
Some account needs to be taken of the lateness of the establishment of the applicant's case and also the purposeless work undertaken on behalf of the Minister on the basis of the earlier applications, but given the lack of substance to the original application, the amount of work required to deal with it would have been minimal. Obviously, general preparation work in the form of the court books was required in any event.
Overall, I have formed the view that the entitlements to costs cancel each other out and that there should be no order as to costs. I will, therefore, make the following orders. In matter SZ1364 of 202 the Court declares that the purported decision of the delegate of the respondent Minister made on or about 29 November 2002 is invalid and of no effect. Secondly, the decision is set aside. Thirdly, the Minister is prohibited from acting in reliance upon the purported decision and, fourthly, the matter is remitted to the respondent for redetermination according to law.
In matter SZ1039 of 2002 I will order that the application be dismissed.
In both matters I order that there be no order as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 May 2003
0