Yuan v Minister for Immigration

[2004] FMCA 500

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YUAN v MINISTER FOR IMMIGRATION [2004] FMCA 500

MIGRATION – Review of decision of a delegate to refuse to waive a no further stay condition on a business visa – whether the applicant was denied natural justice considered – overseas post expressed credibility concerns about the waiver application which was determinative of the outcome – applicant not given the opportunity to comment on those credibility concerns – the process was therefore procedurally unfair and the exercise of power by the delegate miscarried – application granted.

Migration Act 1958 (Cth), ss.41, 474, 476
Migration Regulations 1994 (Cth)

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
Dalpatadu v Minister for Immigration (2000) 181 ALR 675
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
El Ess v Minister for Immigration [2004] FCA 1038
Kioa v West (1985) 159 CLR 550

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 206 CLR 323
Moldrich v Minister for Immigration [2003] FCA 1010
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Muralidharan v Minister for Immigration (1996) 62 FCR 402
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration; ex parte Miah (2001) 206 CLR 57
Salazar v Minister for Immigration [2001] FCA 899
Steed v Minister for Immigration (1981) 37 ALR 620
Terera v Minister for Immigration [2003] FCA 1570
Thongpraphai v Minister for Immigration [2000] FCA 1590

Applicant: YUAN YUAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1008 of 2003

Delivered on: 16 September 2004

Delivered at: Sydney

Hearing date: 12 August 2004

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Patterson Houen & Commins

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Court declares that the decision of the delegate of the respondent to refuse to waive condition 8503 (no further stay) imposed on the applicant’s sub class 456 business (short stay) visa number V757-0306231A1, made on 26 May 2003 was invalid and of no effect.

2. The Court orders that a writ of certiorari issue quashing the decision of the delegate.

3. The Court orders that a writ of mandamus issue to the respondent requiring her to cause the request for waiver of the condition to be redetermined according to law.

4. The Court orders that the respondent pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

   `

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1008 of 2003

YUAN YUAN

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGNEOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision made by a delegate of the respondent on 23 May 2003 to refuse the applicant’s request to waive condition 8503 (no further stay) imposed on her sub class 456 business (short stay) visa.  I note, at the outset, that it appears that the delegate’s decision was in fact made on 26 May 2003 although a recommendation to the delegate was made by minute dated 23 May 2003 (court book, pages 59–62).  The decision to reject the application for waiver of the condition was notified to the applicant by letter from the delegate dated 23 May 2003 (court book, page 55).  The letter was received by the solicitors for the applicant on 28 May 2003 (court book, page 56).  It appears, in the circumstances, that the letter notifying the decision was probably prepared and dated on 23 May 2003 but signed and dispatched on 26 May 2003. 

2. The application for judicial review was filed on 5 June 2003.  The applicant proceeded on the basis of an amended application (headed, “Annexure to Application”) which was filed in court by leave on 12 August 2004.  The respondent took no objection to the amendment to the application, having been notified of its terms as an annexure to the applicant’s outline of submissions filed on 10 August 2004. 

3. The relevant facts and background circumstances are set out in paragraphs 3-19 of written submissions prepared on behalf of the applicant by Mr Poynder.  I adopt those paragraphs for the purposes of this judgment:

   The applicant is a citizen of the People’s Republic of China.  She is the Vice General Manager of Guangzhou Jinxiong Health & Nutrition Supplement Corp. Ltd (“GJ Health”), which is based in Guangzhou (court book, page 18). 

   During 2002 and 2003 GJ Health entered into discussions with an Australian citizen, Mr Joseph Yosifidis, with regard to the possible distribution of Australian and New Zealand health products in China.  Mr Yosifidis travelled to China to meet with GJ Health, and the applicant planned to visit Australia to meet with Mr Yosifidis (court book, pages 18-19).

   On 31 December 2002 the applicant applied for a subclass 456 Business (Short stay) visa (Affidavit of Anthony Nicholas Houen, annexure “ANH 1”, p. 56).   However, this visa was refused on 14 January 2003 when a Departmental officer tried to telephone Mr Yosifidis but the number given had been a newsagency, and subsequent attempts to contact him on his mobile telephone were unsuccessful.  The officer had formed the conclusion that the details of the Australian inviter provided by Ms Yuan “appear to be fraudulent” (“ANH 1”, p. 58).

   Mr Yosifidis subsequently met with a Departmental officer at the Guangzhou post to complain about the visa refusal, noting that he had “lost face” with GJ Foods and was “very angry” with the visa refusal.  He explained that he also runs a newsagency.  He advised the officer that the applicant would be lodging a new application next week and he was seeking a very quick decision.  The officer assured him that if an application was lodged on 20 January 2003 a decision would be made on 22 January 2003 (“ANH 1”, p. 57).

   In early 2003 Mr Yosifidis established a company, Olympic Trading Pty Ltd (“Olympic Trading “), specifically for the purposes of entering into a joint venture with GJ Health for the purpose of exporting health products to China.  Ms Yuan was also appointed as a director of the company (court book, page 20, par. 1). 

   On 20 January 2003 the applicant made a further application for a subclass 456 visa (“ANH 1”, pp. 7-10).  This time the visa was granted  (“ANH 1”, p. 3-4). The applicant travelled to Australia from 20 February until 15 March 2003 (RD 11).  On 15 March 2003 she signed a three-year Exclusive Distributorship & Agent Agreement on behalf of GJ Health with Olympic Trading (court book, pages 13-14). According to the agreement, Olympic Trading was to be the sole supplier to GJ Health for its health products from Australia and New Zealand.   The value of goods to be purchased by GJ Health in the first year was to be $1.2 million.  

   On 7 April 2003 the applicant lodged a further application for a three year, multiple entry subclass 456 visa to Australia (“ANH 2”, pp. 6‑14).  In answer to qn. 16 on her application form, she identified the purpose of her visit being to contact Mr Yosifidis to “purchase details & place the order, handling the special production, quality inspection, packaging, pricing, seeking the new products in Australia & New Zealand”.  On 17 April 2003 the applicant was granted a one-month, single-entry subclass 456 visa. The decision-maker refused her request for a multiple entry visa, noting (“ANH 2”, p. 4):

   I am not prepared to grant a multiple entry to Yuan at this stage because I do not accept that she has sound business reasons for one.  Her invitee claims that she will have to travel frequently to establish the relationship.  When the relationship is established and there is evidence of ongoing business this issue can be raised again.

   The visa was subject to a Condition 8503, which relevantly provided that the applicant would not be entitled to be granted a further visa after entering Australia. 

   Shortly after the applicant’s arrival in Australia, major problems arose when the Therapeutic Goods Administration (“TGA”) suspended the licence to manufacture medicines held by Pan Pharmaceuticals Limited (“Pan”) (court book, pages 9-10; 20-21).  Many of the products supplied to Olympic Trading had come from Pan, so it then became necessary for the company to seek alternative sources to meet the orders for GJ Health (court book, page 11).

   By letter dated 21 May 2003 the applicant’s legal representative requested the Department to waive the Condition 8503 on the applicant’s visa, in order to enable her to seek a Business (Long stay) visa to remain in Australia and attempt to source alternative suppliers of health products to Olympic Trading (court book, pages 2-3).  Statutory declarations were made by Ms Yuan (court book, pages 9-11) and Mr Yosifidis (court book, pages 20-24) explaining the situation.  It was claimed that the joint venture was at risk of failing if alternative suppliers could not be found, which would lead to significant financial losses.   In her statutory declaration Ms Yuan also stated (court book, page 10, par. 5):

   The compassionate and compelling circumstances which are necessary for you to waive the condition are not only financial in nature (ie the loss of a substantial export contract for an Australian joint venture company and the financial loss through the breach of supply arrangements with customers in China), but also the emotional impact on me and Mr Yosifidis in particular, because of the time and effort was have already put into bringing the deal together and making all the necessary arrangements.

   On 23 May 2003 an officer identified as Alyssa Haywood at the Department’s Sydney Contact Centre sent an email to the Guangzhou post noting the request for a waiver and urgently asking that the reasons for imposing the Condition 8503 be forwarded (court book, page 52) .  The same day, an officer identified as Kerry McKinnon, Vice Consul (Immigration) in Guangzhou, responded as follows (court book, page 52):

   We do NOT/NOT support a waiver of the 8503 condition.  Applicant was refused once here and approved twice for a short stay.  She was only approved after very strong representations from the inviter Joseph Yosifidis. Mr Yosifidis was counseled on the conditions of the visa and the limitations of the visa.  In her last application she requested a multiple entry with the only reason given as “may go to New Zealand”.  She did not provide any evidence of ongoing business but claimed she needed to develop the relationship.  Given the fact that she had travelled once and the strength of the representations she was visaed again.  However, because there was no strong evidence of continuing business at this time and, while she claimed to be married with a child, the child does not reside with her but is looked after by her parents, the 8503 was imposed. 

   It is interesting to note that the person visaed with her GUO Guo Ping…and who claimed he was to travel with her has not travelled.

   The exercise of the waiver in these circumstances would undermine the integrity of the decision making process in this office and send the wrong message to the community about the maintenance of that integrity.

   14. By letter dated 23 May 2003 (court book, page 55) a delegate of the Minister, identified as Megan Makinson of Client Services in the Department’s Sydney CBD Office, advised that the request for a waiver of the Condition 8503 was declined.  The letter stated, in part:

   Your request was assessed against the requirements of Migration Regulations 2.05(4).  This regulation prescribes the criteria that must be met before the 8503 visa condition can be waived.  Under this regulation, visa holders must demonstrate that compelling and compassionate circumstances have arisen since their visa was granted that represents a major change to their circumstances and this change was beyond their control. 

   Based on the information presented, I have determined that you failed to satisfy Reg. 2.05(4).

   By letter dated 29 May 2003 (court book, pages 56-57) the applicant’s representative urgently sought a statement of findings of fact and reasons for the decision.

   Under cover of a facsimile letter to the applicant’s representative dated 3 June 2003 (affidavit of Yuan Yuan, 4 June 2003, Annexure “C”, p. 55), Ms Makinson advised “attached, as requested, is the decision record for my decision not to waive Ms Yuan Yuan’s 8503 condition.”    Accompanying the facsimile letter was a four page Minute (court book, pages 59-62).  The Minute had apparently been prepared by Ms Alyssa Haywood on 23 May 2003, the same day that she had sent the urgent request for reasons for the Condition 8503 to the Department’s Guangzhou post.  The Minute had been countersigned by Ms Makinson on 26 May 2003, three days after the date of the letter notifying the refusal but three days before the representative had requested a statement of reasons.

   Under the heading, “Summary of request/claims and advice from overseas post”, the Minute noted (in part):

   Advice from the overseas post indicates that they do not support the waiver. Ms Yuan was once refused and approved twice for a short stay, only approved after strong representations from Mr Yosifidis.

   She did not provide evidence of any continuing business, but claimed she needed to develop the relationship.  She also claimed to be married with a child, but the child resides with her parents.  The 8503 condition was imposed for these reasons.

   Under the heading, “Assessment against the legislation”, the Minute noted (in part):

   5If the answer to any of the following questions is no, then the visa holder fails to satisfy a legislative criteria to have the 8503 visa condition waived.

   …

   b)    Did the circumstances (stated in the written request for waiver) occur since the visa was granted?

   YES

   c)     Did the circumstances result in major change to the client’s circumstances?

   YES

   d)    Were the circumstances outside the visa holder’s control?

   YES

   e)     Are these circumstances compelling?

   NO

   f)     Are these circumstances compassionate?

   NO

   Under the heading, “Recommendation”, the Minute noted (in part):

   The suspension of Pan Pharmaceutical’s licence was beyond Ms Yuan’s control.  If she returns to China she will have to wait for a new visa to be granted and will not be able to return to Australia until July – unable to meet the June commitment to her customers, and the export deal would fall through.

   In his statutory declaration, Mr Yosifidis advised that if the 8503 condition is waived they intend to lodge an application for a 457 visa to rescue the deal and facilitate further business dealings.  As Ms Yuan is already a Director of Olympic Trading Pty Ltd, he proposes to employ her as an export director.

   However, these circumstances are not compelling or compassionate.  Advice from the overseas post also states that Mr Yosifidis was counseled on the conditions and limitations of the visa.

The legislation

1. Section 41 of the Migration Act 1958 (Cth) (“the Migration Act”) allows for the imposition of conditions on visas, and relevantly provides:

   (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 or a temporary visa of a specified kind) while he or she remains in Australia; or

1. Condition 8503 in Schedule 8 of the Migration Regulations 1994 (“the Migration Regulations”) provides:

   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.

2. Section 41(2A) of the Act relevantly 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…

3. Regulation 2.05(4) provides:

   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.

1. In addition to the legislation, decision makers under the Migration Act have available to them a procedures advice manual known by its abbreviated title, “PAM 3”. I have no evidence as to the terms of PAM 3 at the time the delegate made her decision, however prior to that decision PAM 3 contained the following guidelines relating to condition 8503 that the delegate ought to have been aware of. Those guidelines were as follows:

   Condition 8503 – “no further stay”

   5.15This condition states "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."

   • The authority for the regulations to prescribe this condition derives from s41(2)(a) of the Act.

   • Section 46(1)(e) of the Act in turn provides that an application for a visa (other than for a protection or bridging visa) is not valid if the applicant is in Australia and holds a visa subject to this condition.

   5.16Schedule 2 provisions enable condition 8503 to be imposed (at the discretion of the decision maker) on any Visitor visa.

   5.17Wherever this condition is attached, its legal effect is to remove the holder’s ability to make a valid application for a further substantive visa (temporary or permanent, other than a protection visa) while the holder remains in Australia. The wording of the provision also constitutes a bar on the grant of a further substantive visa (other than a protection visa) in Australia.

   5.18Because of the very restrictive nature of this condition, it is intended that it be used only in EXCEPTIONAL circumstances. It is NOT to be used as an alternative to being satisfied that an applicant meets prescribed criteria for the grant of a visa, such as having a genuine intention only to visit Australia, or meeting Schedule 4 criterion 4011 risk factor requirements. If not satisfied that all criteria are satisfied, decision makers cannot lawfully grant the visa.

   5.19In general, the condition may be imposed where the applicant needs to travel in particularly compelling circumstances, and the grant of a visa which restricts their period of stay in Australia might be appropriate for health, character, previous compliance record or similar reasons. Examples of compelling circumstances include

   • a particular family event such as a wedding, christening, funeral, family reunion or significant birthday;

   • urgent legal matters; or

   • settling affairs after a prior lengthy stay in Australia.

   5.20Note that the imposition of condition 8503 should be avoided in situations where the applicant is travelling due to the serious illness or pregnancy of a family member in Australia, as the inability to extend the applicant’s period of stay in such circumstances frequently leads to considerable distress, particularly where the family member may be dying, or the birth does not take place within the period of authorised stay.

   5.21The examples given above are neither exhaustive nor prescriptive, and decision makers should give careful consideration to the circumstances of each case in order to decide whether imposition of the condition would be appropriate in these or any other situations.

   5.22If, having taken all the circumstances into account, the decision maker is minded to impose condition 8503 on a visa, the following procedures must be followed:

   • The applicant must be FULLY COUNSELLED about the condition and its effect, BEFORE a decision to grant the visa is made. It is recognised that there are communication difficulties in many posts which make such a requirement difficult. However, unless the counselling takes place before the visa is granted, and the decision to grant made on the basis of the outcome of that counselling, it is arguable that the imposition will be legally flawed and could be challenged in Court.

   • Following counselling, applicants must acknowledge in writing that they understand and accept the restriction that it places on them. Where relevant, the acknowledgment should be both in the local language and in English; and the applicant should be given a copy, either of the visa condition (as a passport insert) or of the acknowledgment. A copy of the acknowledgment should also be retained at the post.

   • As a matter of policy, it is recommended that the decision to impose the condition be taken by, or in consultation with, an A-based officer. The details of counselling should be recorded.

   5.23A visa holder in Australia with condition 8503 who seeks to apply for a substantive visa (other than a protection visa) should have the condition and its effect drawn to their attention. If the applicant claims that the condition was imposed without their knowledge or consent, officers should follow the procedures set out below:

   • Obtain the relevant details from the applicant, and undertake to investigate further, but counsel the applicant that no guarantee as to the outcome can be given. Under no circumstances should an application be accepted or a fee receipted at this stage.

   • Seek advice and documentation from the overseas post to ascertain the exact circumstances under which the condition was imposed.

   • If there is a doubt that the procedures outlined in paragraph 5.22 above were followed, and that the condition may therefore have been imposed incorrectly, regional offices should consult with the Temporary Entry Policy and Operations Section (TEPO), Overseas Client Services Division, DIMA CO.

   • If a regional office, in consultation with TEPO, finds that the condition has not been lawfully imposed in accordance with the procedures in paragraph 5.22, the decision that the condition has not been lawfully imposed should not be taken by an officer below SOGB level. Details of the decision should be advised to TEPO.’

The amended application

1. By her amended application, the applicant seeks declaratory relief and orders in the nature of certiorari and mandamus and costs.  The amended application asserts that:

   (a)The applicant was denied natural justice in relation to the request.

   Particulars

   (i)The applicant was given no opportunity before the decision was made to comment on or respond to the information that the applicant was married with a child but that the child resides with the parents;

   (ii)The respondent’s delegate failed to consider the applicant’s claim that she had continuing business with the proposed sponsoring business in Australia through their three year Exclusive Distributorship & Agent Agreement.

   (iii)The respondent’s delegate failed to consider the compassionate nature of the applicant’s claim that the refusal to waive the condition 8503 would have an emotional impact on her because of the time and effort which had been put into their business deal.

   (b)The respondent took the following irrelevant considerations into account in making the decision:

   Particulars

   (i)that the respondent’s overseas post did not support the request for the waiver;

   (ii)that the applicant was only approved for a previous visa after strong representations from the proprietor of the applicant’s sponsoring company, Mr Yosifidis;

   (iii)that the applicant was married with a child but that the child resides with the parents;

   (iv)that Mr Yosifidis was counselled on the conditions and limitations of the visa.

   (c)the respondent asked itself the wrong question by applying the wrong test arising from an incorrect construction of the requirements of s.41(2A) of the Migration Act and regulation 2.05(4) of the Migration Regulations in making the decision.

   Particulars

   (i)the respondent misunderstood and misapplied the requirements of regulation 2.05(4)(a) regarding what will give rise to compelling and compassionate circumstances for the purposes of that regulation.

The evidence

1. I received the book of relevant documents prepared on behalf of the respondent Minister as evidence in the proceedings.  I also received an affidavit by the applicant filed on 5 June 2003 and an affidavit, together with exhibits by Anthony Nicholas Houen filed on 6 August 2004.  Neither deponent was required for cross-examination.  The evidence in the affidavits is broadly consistent with the evidence in the book of relevant documents.  The document appearing in the book of relevant documents at pages 52-54 contained deletions.  Mr Reilly tendered, and I accepted as an exhibit (exhibit R1), a further copy of that document without deletions.

Submissions

1. Both Mr Poynder and Mr Reilly prepared written submissions and also made oral addresses.  In his written submissions Mr Poynder relevantly states:

   Denial of natural justice:

   The first ground in the amended application is that the applicant was denied natural justice in the decision to refuse her request for a waiver.   The respondent is required to accord natural justice when making a decision on an application for waiver of a Condition 8503:  see, e.g., Moldrich v Minister for Immigration [2003] FCA 1010; 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.

   The first “natural justice” ground is that the applicant was not given an opportunity to comment on information that was adverse to her and was relied on by the delegate when making the decision to refuse the waiver.

   In the Minute of 23 May 2003 particular reference was made to the applicant’s claim to be married with a child, “but that the child resides with the parents” (court book, page 60).   This factor was regarded as adverse to the applicant, having been cited in the email from Kerry McKinnon at the Guangzhou post as one of the reasons for the imposition of the Condition 8503.  It was repeated in the Minute as relevant because the Guangzhou post did not support the waiver. 

   The leading authority on this point is of course the decision of the High Court in Kioa v West (1985) 159 CLR 550, in which Brennan J stated (at 629):

   [i]n the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.

   See also Re Minister for Immigration; ex parte Miah (2001) 206 CLR 57, 96-97, 116; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 631, 653.

   If the applicant’s relationship with her child was relevant to the decision of the delegate – which it clearly was – then the applicant should have had an opportunity to respond to the issue.  It was personal to the applicant, and she may have been able to resolve any difficulties in the mind of the delegate arising out of it.

   The second and third “natural justice” grounds are that the delegate failed to consider arguments made by the applicant in support for her request for a waiver.  A failure to address or to make findings in relation to particular claims made by an applicant will amount to a jurisdictional error, which is in the nature of a failure to accord natural justice: Dranichnikov v Minister for Immigration (2003) 197 ALR 389, per Gummow and Callinan JJ at [23]-[24]; Kirby J at [87]-[89].

   The first argument put forward by the applicant which was not considered by the delegate was her claim to have a continuing business relationship with Olympic Trading by reason of their three year Exclusive Distributorship & Agent Agreement. The delegate made reference, at court book, page 60, to “a $1.2 million export contract”; however she went on at court book, page 60 to note that the applicant “did not provide evidence of any continuing business, but claimed that she needed to develop the relationship”.  This was clearly incorrect, as the three year contract was obviously evidence of continuing business.  In the “Recommendation” section (court book, page 61), the three year agreement was referred to as “the export deal”, and there was a reference to the applicant’s desire to “rescue the deal and facilitate further business dealings”.  It is apparent from these references that the delegate misunderstood the nature of the relationship between the applicant and Olympic Trading and this led her to fail to consider the applicant’s claims. The delegate treated the proposed dealing as an “undeveloped” relationship, when in fact the deal had been finalised in March 2003 and what was being sought was not the rescue of the opportunity to develop the relationship, but the rescue of the completed agreement.  It was the ongoing three year relationship which would be jeopardized by the applicant’s inability to remain in Australia.

   The second argument put forward by the applicant which was not considered by the delegate was her claim, at court book, page 10, par. 5, that the relevant compassionate and compelling circumstances were not only financial in nature, but also emotional, because of the time and effort that she and Mr Yosifidis had put into bringing the deal together.  This was clearly a different type of claim than the loss of the agreement, yet nowhere was it referred to in the Minute.   It appears simply to have been overlooked by the delegate.

   Irrelevant considerations:

   There are four factors that the applicant says were taken into account by the delegate which were irrelevant to the exercise of the power to refuse the waiver.  These were:

   a)that the overseas post had indicated that it did not support the request for the waiver (court book, page 60);

   b)that the applicant had only been approved for a previous visa after strong representations by Mr Yosifidis (court book, page 60).

   c)that the applicant was married with a child but that the child resides with the parents (court book, page 60).

   d)that Mr Yosifidis was counselled on the conditions and limitations of the visa (court book, pages 61-62).

   The first three factors were in the “Summary of request/Claims and advice from overseas post” section of the Minute.  To some extent, this section might be regarded as a summary of material facts rather than the operative part of the decision, which might be seen as the “Recommendation” section.  Nevertheless, it is clear from judicial authority that a decision-maker’s identification of what he or she considered to be the material questions of fact may well demonstrate that an irrelevant consideration had been taken into account:  Minister for Immigration v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 346 [69], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

   The fourth factor, being that Mr Yosifidis had been counselled on the conditions and limitations of the visa, is squarely in the operative part of the decision; indeed, coming immediately after the assertion that the circumstances of the case were not compelling or compassionate, it appears to have been the “clincher” in arriving at the decision to refuse the waiver.

   None of the above factors were relevant to the question of the waiver, which are set out in reg. 2.05(4):

   a)The opinion of the overseas post was of no relevance; indeed this is also likely to come within the “improper influence” ground[1], formerly covered by the s.476(3)(b) prohibition of acting the direction or behest of another person.

   b)The fact that the applicant had only been approved for the visa after strong representations from Mr Yosifidis had nothing to do with the factors referred to in reg. 2.05(4). 

   c)Whether the applicant was married with a child and whether that child was residing with her parents might possibly have been relevant to some unidentified compassionate circumstance, although in the context of this case it was referred to as a reason why the Condition 8503 was imposed in the first place.

   d)The assertion that Mr Yosifidis had been counselled on the conditions and limitations of the visa is both factually incorrect (there is nothing to this extent in the officers notes at “ANH 2”, p. 57) and irrelevant. The relevant question for the delegate to ask in this case was not whether Mr Yosifidis had been counseled, but whether the applicant had been counseled:  c.f., Terera v Minister for Immigration [2003] FCA 1570 at [22].

   Misapplication of the Act and regulations

   The final ground of review is that the delegate simply failed to apply herself to the issues required in a request for waiver under s.41(2A) of the Act and Regulation 2.05(4). It is apparent from the “Recommendation” section of the decision that the delegate erroneously formed the view that the circumstances put forward by the applicant were not capable of coming within the meaning of “compelling and compassionate” in reg. 2.05(4). This is reflected in the delegate’s bald finding, at court book, page 61, that the applicant’s circumstances “are not compelling or compassionate”. Had the delegate considered that these circumstances were capable of coming within reg. 2.05(4), she would have considered the merits of the applicant’s claims rather than summarily dismissing them without any detailed discussion.

   Conclusion

   On the grounds set out in the amended application, this Court should grant the application and set aside the delegate’s decision with costs.

   [1] See Aaronson M and Dyer J, Judicial Review of Administrative Action (1996), pp. 314-323.

2. Mr Reilly relevant submits as follows:

   The facts are detailed in the Applicant’s Submissions and need not be repeated.  The delegate’s decision was made on 23 May 2003: court book, page 55.  The delegate records that she was not satisfied that the applicant fell within the requirement in reg 2.05(4)(a) that compelling and compassionate circumstances had developed since the grant of the visa over which the applicant had not control and that resulted in a major change to the applicant’s circumstances.  In particular it is apparent that the delegate was not satisfied that the conditions which had developed since the grant of the visa were compelling and compassionate: court book, page 58.  These words require events that are “far-reaching and most heavily persuasive”: Thongpraphai v Minister for Immigration [2000] FCA 1590 (O’Loughlin J) at [21], cf Terera v Minister for Immigration [2003] FCA 1570 (Kenny J) at [25].

   The grounds pleaded in the “Annexure to Application” attached to the Applicant’s Submissions will be addressed in turn.

   First it is claimed that the applicant was denied procedural fairness.  In considering this ground it should be born in mind that the applicant was legally represented and provided a comprehensive submission in support of her application.

   The first procedural fairness ground concerns the delegate’s statement that the applicant’s child resided with the applicant’s parents (court book, page 60.9).  However this statement was made in the context of explaining why the condition had been imposed: court book, page 52.3, and was not part of the delegate’s reasons for refusing to waive the condition.  As a result it was not an issue requiring disclosure on any view.  Moreover it appears to be an uncontentious factual statement based on information given by the applicant herself: see Mr Houen’s affidavit, exhibit ANH-1 p 15.  For both reasons there can be no breach of procedural fairness on this issue.

   The second and third procedural fairness grounds are that the delegate failed to consider her arguments in favour of waiver.  This is put as an inference merely from the matters not mentioned in the decision record.  In considering this ground it should be recalled that in general there is no requirement that a statement of reasons mention every issue raised or refer to every piece of evidence: Muralidharan v Minister for Immigration (1996) 62 FCR 402 (FC) at 414 per Sackville J; Minister for Immigration v Guo (1997) 191 CLR 559 at 593 per Kirby J; Dalpatadu v Minister for Immigration (2000) 181 ALR 675 (FCA/FC) at [26-27]. Nor can it be inferred that merely because an issue is not mentioned in the reasons it has not been considered: Steed v Minister for Immigration (1981) 37 ALR 620 at 621 per Fox J. There is no requirement in the Act to prepare a statement of reasons for the decision in cases such as this, or that any such reasons set out all the material to which regard has been given: Salazar v Minister for Immigration [2001] FCA 899 (Allsop J) at [26], [37], so these principles apply a fortiori. The delegate records that the matters raised by the Applicant had been considered: court book, page 55.3 and there is no basis to conclude to the contrary. The decision record at court book, page 60 is plainly purporting to do no more than summarise the applicant’s arguments in favour of waiver. The decision record refers explicitly to the correspondence containing such arguments: court book, page 60.4. It was hardly required to reproduce this correspondence verbatim.

   In any case, dealing with the specific matters raised, the delegate plainly was aware that the applicant claimed to have a continuing business relationship, as the reference to a “$1.2 million export contract” at court book, page 60.5 cannot be referring to anything else.  The reference at court book, page 60.9 to there being no evidence of a continuing business relationship is again a summary of the reasons why the condition was imposed: court book, page 52.2, not a reason for the refusal of the waiver.  It follows that this claim is not made out.  The second specific matter raised, the applicant’s claim to emotional distress, fails for the reasons given in para 6 above.

   The second ground claims that the delegate took into account irrelevant considerations.  No express or implied statutory prohibition has been identified by the applicant on any particular matter being taken into account by the delegate, so this ground fails at the outset: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-42 per Mason J, 55 per Brennan J. In any case, the matters raised by the Applicant in support of this ground are without substance and at their highest do no more than seek merits review. There is no reason why the delegate should not consider the view of those officers who originally imposed the condition, and the applicant’s submissions again misread court book, page 60.9 as referring to the reasons for the refusal of the waiver, rather than a summary of the reasons for which the condition was originally imposed: see court book, page 52.2. To the extent that the delegate considered Mr Yosifidis having been counselled on the conditions imposed on the applicant’s visa as relevant to her decision this can hardly be said to be a factually (let alone legally) irrelevant consideration, as there is an obvious inference that he would have informed the applicant accordingly and this can hardly be said to be irrelevant cf Salazar at [28-30].  For all of these reasons this ground fails.

   The third and final ground claims that the delegate applied the wrong legal test.  The Applicant’s Submissions support this ground by claiming that the delegate in concluding at court book, page 61.9 that the applicant’s circumstances were not compelling or compassionate was imposing some kind of preliminary test that meant that the merits of her case did not need to be considered..  This is hardly a fair reading, contrary to Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291. The delegate is plainly recording her conclusion after considering that the matters raised by the applicant that they did not satisfy her as being compelling and compassionate, and thereby correctly applying the test in reg 2.05(4).

   As there is no jurisdictional error in the delegate’s decision it follows that it is a “privative clause decision” within s.474 of the Act and the application should be dismissed with costs.

Reasoning

What were the reasons for the delegate’s decision?

1. It is first necessary to determine what the delegate’s reasons for her decision were. That is because Mr Reilly, in his oral submissions, submits that the decision record (court book, pages 59-62) is not a statement of the reasons for the delegate’s decision. I have some difficulty in reconciling that submission with Mr Reilly’s written submissions which appear to have been prepared on the assumption that what is in the decision record reflects the delegate’s reasons. The delegate was under no legal obligation to give reasons for her decision. The Migration Act did not require reasons to be prepared and, in my view, no obligation arose from the general law. Apart from the decision record, there is nothing before me that gives any clue as to the basis for the delegate’s decision. In their facsimile on 29 May 2003 the solicitors for the applicant sought a statement of reasons from the delegate: court book, pages 56-57. The delegate responded by facsimile message on 3 June 2003 in which she said:

   Attached, as requested, is the decision record for my decision not to waive Ms Yuan Yuan’s 8503 condition.

2. Plainly, the delegate considered that the decision record met the solicitor’s request for a statement of reasons.  She did not refuse the request, nor did she put any qualification on the decision record as a document which explained her reasons.  I find that the delegate intended that the decision record should be used by the applicant to understand why the delegate refused the application for the condition waiver.  I will treat the decision record as a document intended by the delegate to reflect the reasons for her decision.

The effect of condition 8503

1. Both parties treated the imposition of the “no further stay” condition on the two visas held by the applicant as a condition preventing the applicant from extending her stay in Australia, unless the condition were waived.  That interpretation has been found to be correct by the Federal Court: El Ess v Minister for Immigration [2004] FCA 1038 at [53]-[55].

1. I note, in relation to that decision, that His Honour Gray J at [36] stated that, under the Migration Act as it now stands, the Federal Court (and by extension, this Court) would not have jurisdiction to review a decision to impose condition 8503 on a visa. His Honour drew that conclusion from a reading of s.474 and s.476(1) and (6) of the Migration Act. I do not understand His Honour, by that statement, to be asserting that the Federal Court and this Court do not have jurisdiction to consider and determine whether a “primary decision” is a “privative clause decision”. Such a proposition would be inconsistent with the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In this instance I am told that the decision to impose the condition on the visa was not reviewable by a tribunal under the Migration Act. On that basis, the decision does not satisfy the description of “primary decision” in s.476(6). Even if it did, however, in my view, this Court and the Federal Court would have jurisdiction to determine whether the “primary decision” was or was not a “privative clause decision” by reference to asserted jurisdictional error. I note that amendments put before the Parliament before it was prorogued for the pending federal election would have altered that position but those amendments have not been enacted.

Procedural fairness

1. The applicant asserts a want of procedural fairness by reason of the applicant being given no opportunity to comment on adverse information and by reason of an asserted failure by the delegate to consider material elements of the applicant’s claims.  I would regard the latter as being a jurisdictional error in its own right, whether or not it pointed to a want of procedural fairness: SCAT v Minister for Immigration [2003] FCAFC 80; SDAV v Minister for Immigration [2003] FCAFC 129. As regards the first assertion, the applicant says that she was denied the opportunity to comment upon information that she was married with a child but that the child resides with the applicant’s parents.

2. The Minister does not dispute that the applicant was not given an opportunity to comment upon that information but asserts that the information did not form a part of the delegate’s reasons for refusing to waive the condition.  It is necessary, in the circumstances, to look at what were the delegate’s reasons, by reference to the decision record.  That decision record (court book, pages 59-62) is in the form of a minute to the delegate prepared by Ms Alyssa Haywood.  The minute gives details about the visa holder and under the heading, “Preamble”, identifies the relevant legislative provisions.  There then follows a heading, “Summary of Request/Claims and Advice From the Overseas Post”.  The minute then identifies the material put forward by or on behalf of the applicant as well as information received from the Australian Diplomatic Post in China that imposed the condition.  It is at this point that Ms Haywood refers to advice received from the Post that they did not support the waiver of the condition.  Ms Haywood stated:

   Advice from the overseas post indicates that they do not support the waiver.  Ms Yuan was once refused and approved twice for a short stay, only approved after strong representations from Mr Yosifidis.

   She did not provide evidence of any continuing business, but claims she needed to develop the relationship.  She also claimed to be married with a child, but the child resides with her parents.  The 8503 condition was imposed for these reasons.

3. Under the heading, “Assessment Against Legislation”, Ms Haywood sets out relevant questions and answers in relation to the request for waiver.  She makes the simple statements at this point that although the applicant had advanced circumstances that arose since the visa was granted and pointed to circumstances resulting in a major change to the applicant’s circumstances outside her control, these were not compelling or compassionate.  Under the heading, “Recommendation”, Ms Haywood stated:

   I have reviewed Ms Yuan’s claims for a waiver of condition 8503 of her visa under regulation 2.05(4).

   The suspension of Pan Pharmaceuticals’ licence was beyond Ms Yuan’s control.  If she returns to China she will have to wait for a new visa to be granted and will not be able to return to Australia until July – unable to meet the June commitment to her customers, and the export deal would fall through.

   In his statutory declaration, Mr Yosifidis advised that if the 8503 condition is waived they intend to lodge an application for a 457 visa to rescue the deal and facilitate further business dealings.  As Ms Yuan is already a director of Olympic Trading Pty Ltd, he proposes to employ her as an export director.

   However, these circumstances are not compelling or compassionate.  Advice from the overseas post also states that Mr Yosifidis was counselled on the conditions and limitations of the visa. 

4. Ms Haywood then made a recommendation that the condition not be waived.  The delegate agreed to the recommendation without comment.

5. Plainly, what appears in the decision record under the heading, “Recommendation” forms part or all of the reasons for the delegate’s decision.  The difficulty is that the matters discussed at that point are favourable to the application.  There is a bald statement that the circumstances advanced by the applicant and Mr Yosifidis were not compelling or compassionate.  However, that bald statement is not explained.  As to what are compelling and compassionate circumstances, I adopt the statement by Kenny J in Terera v Minister for Immigration [2003] FCA 1570 at [25]. I regard the statement that Mr Yosifidis had been counselled as neutral According to the PAM 3 guidelines the more important issue would have been whether the applicant had been counselled. There was no indication that she had been.

6. The material presented by the applicant and Mr Yosifidis to the delegate pointed on its face to compelling and compassionate circumstances.  They pointed to the applicant and Mr Yosifidis striving to establish a genuine and substantial business which had been threatened by the action taken by the Commonwealth against Pan Pharmaceuticals and which the applicant needed time to overcome.  If the applicant was prevented from extending her stay in Australia, she and Mr Yosifidis would suffer both substantial financial loss and emotional distress.  Given that all of the material advanced by or on behalf of the applicant pointed strongly to the need to waive the condition and given that only matters favourable to the applicant are discussed in any detail in the decision record under the heading, “Recommendation”, the decision of the delegate is inexplicable if those were the only considerations bearing upon her decision.  The decision would probably be liable to be set aside on the basis that there was no evidence to support it and that the decision was unreasonable.  Unless the decision is to be set aside on those bases, there must be something else in the decision record which explains the decision. 

7. The only material which explains the delegate’s decision is the information and advice received from the overseas post.  It is clear from exhibit R1 that Ms Haywood sought information from the post to explain why the condition had been imposed.  It is readily understandable why Ms Haywood took that step.  If there was no basis for the imposition of the condition in the first place it ought to be waived.  The approach to the post to explain the condition is also consistent with the guidelines set out in PAM 3.  The response of the post went beyond explaining why the condition was imposed.  The post volunteered a forceful recommendation that the condition not be waived.  It is clear from the response from the post that the post had always had doubts about the credibility of the applicant’s claims to be seeking to establish a business in Australia and that that was why the condition was imposed.  That approach is not consistent with paragraph 5.18 of the PAM 3 guidelines.  It is apparent that the post initially considered that the applicant did not qualify for a visa at all but was pressured into granting a visa by Mr Yosifidis.  The condition was imposed in order to deal with the continuing doubts at the post about the genuineness of the visa application. 

8. In my view, it is clear from the credibility concerns expressed by the post that there was a concern that the applicant was using her application to waive the condition simply in order to achieve a migration outcome, rather than to advance a genuine business venture.  The reference to the circumstances of the applicant’s child, as well as the reference by the post to the fact that Guo Guo Ping, who was originally visaed to travel with the applicant, did not travel, and the asserted lack of evidence of a continuing business compels a finding that the application for waiver of condition 8503 was refused because of doubts about the credibility of the application.  I so find.  Those doubts should have been put to the applicant so that she could respond to them.  The issue is not limited to the reference to the applicant’s child.  It extends to all of the matters commented upon by the overseas post.  The failure by the delegate to give the applicant the opportunity to comment upon the credibility concerns about her application was procedurally unfair.  The opportunity lost by the applicant was a real one.  If she had been given the opportunity, she could have pointed to the then existing evidence of a substantial and ongoing business relationship, and could have sought to explain the circumstances of her child and Mr Ping.  The procedural unfairness invalidates the decision of the delegate.

9. Upon that basis, the applicant is entitled to the relief she seeks. 

10. It is strictly not necessary to consider the remaining grounds of the application, but for completeness I will deal with them.  The asserted failure on the part of the delegate to consider elements of the applicant’s claims for waiver of the condition is not made out.  The delegate had before her all of the matters raised by the applicant and Mr Yosifidis.  The failure by Ms Haywood to detail the particular aspects identified by the applicant in particulars 1(a)(ii) and (iii) of the amended application does not mean that those elements were not considered.  They were presumably not considered persuasive because of the credibility concerns raised by the overseas post.

11. I also reject the contention that the delegate took into account irrelevant considerations. It was both appropriate and consistent with the PAM guidelines for the delegate to obtain from the overseas post the reasons why the condition had been imposed. If the post had credibility concerns about the application for waiver they were entitled to say so. Where credibility concerns are expressed the decision maker is entitled to take them into account. There is nothing either in the Migration Act or arising from the general law which disentitles a decision maker from taking into account information which points to a lack of credibility in claims advanced by an applicant.

12. I also reject the applicant’s contention that the delegate misapplied the Act and Regulations.  There would have been force to that contention if the delegate’s decision had not been based on the credibility concerns raised by the post.  Apart from those concerns it appeared inevitable that the application would have been granted in the circumstances advanced by and on behalf of the applicant.  However, the delegate was entitled to have regard to credibility concerns for the purposes of dealing with the application, provided that the applicant was afforded procedural fairness in relation to those concerns.  As I have already observed, there was a want of procedural fairness in this case.  That is not a case of misapplication of the Act and Regulations.  It is a case of a failure to comply with an obligation arising from the general law.

Costs

1. Costs should follow the event in this case.  Having regard to the significant amount of preparation properly undertaken on behalf of the applicant a costs order fixed in the sum of $5,000 is called for.  I will so order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 September 2004