FEDERAL COURT OF AUSTRALIA

Mafi v Minister for Immigration & Multicultural Affairs [2000] FCA 566

VILI VAOKAKALA MAFI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1497 of 1999

HILL J

20 APRIL 1999

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1                     Before the Court is an application brought by Vili Vaokakala Mafi, the applicant, for judicial review of a decision made on 16 December 1999 by a delegate of the respondent, Minister for Immigration and Multicultural Affairs  (“the Minister”) refusing to waive a condition imposed on a visa earlier issued to him that he not stay in Australia. 

2                     Mr Mafi is a citizen of Tonga.  On 8 November 1999 he applied for a visitor's visa (short stay) for up to three months to visit Australia to permit him to go to the funeral of his father.  It seems that his father and mother were resident in Australia.  He was granted a visa subject to what is referred to as the “no further stay” condition (8503). 

3                     At the time the visa was granted to him he signed an acknowledgment that before the decision was made he had been fully counselled by an officer representing the Department of Immigration and Multicultural Affairs (the name of the officer was said to appear on the form he signed) concerning the meaning of condition 8503 of the Migration Regulations.  That regulation 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.” 

4                     Mr Mafi acknowledged that he understood and accepted that restriction.  There is no evidence before me that Mr Mafi’s signature on the acknowledgment was in any way improperly obtained. 

5                     Mr Mafi came to Australia after the visa was issued.  On 7 December he wrote to the Minister requesting that the no further stay condition be waived because there had been a change of circumstances since the visa was issued.  In part the letter said:

“I came to Australia on 12 November 1999 for the funeral of my father, Mafi Vaokakala, who passed away at Manly District Hospital and his funeral took place on 13 November 1999 at Deewhy cemetry. [sic]

The applicant claims that there are compelling and compassionate circumstances due to the death of his father to warrant the waiver of this condition.

...

The applicant claims that her mother [sic] is so depressed as a result of the death of Mafi Vaokakala and this [is] sufficient reason to warrant the waiver of this condition.”

6                     No attempt was made to put before the Minister any medical evidence that might exist relating to what was said to be the mother’s depression.  On 16 December 1999 a delegate of the Minister determined not to waive the condition.  In a document that was forwarded to Mr Mafi the delegate noted that no evidence had been put before him to substantiate Mr Mafi’s claims.  In determining that both the initial no further stay condition was validly imposed and that there were no compelling and compassionate circumstances the delegate said:

“The decision to grant a waiver should take place only where compelling and compassionate circumstances have developed since the person was granted the visa with the condition (Reg. 2.05(4)[)].  According to departmental policy guidelines, a major change in a visa holders circumstance which could not have been anticipated at the time of grant of the original visa and which was beyond the control of the visa holder could amount to a compelling and compassionate reasons [sic].

I have considered all the circumstances in this case, however I do not consider that there has been a major change in Mr Mafi’s circumstances which could not have been anticipated at the time he was granted the visa with condition 8503 and which was beyond his control.  Mr Mafi had been granted the visa to enable him to attend the funeral of his father on 13/11/99.  It is to be expected that the death of a spouse would affect the person to a considerable extent.  That his mother would be affected by his father’s death was something that Mr Mafi would have expected to occur.  It is a circumstance that he would have anticipated when he applied for and was granted the visa with the 8503 condition.

Based on all the information before me, I am not satisfied that compelling circumstances have developed since Mr Mafi was granted the visa with the ‘no further stay’ condition.  I am not satisfied that compelling and compassionate reasons exist to justify the waiver of the 8503 ‘no further stay’ condition.”

7                     Mr Mafi then applied to this Court for judicial review of that decision.  Eight grounds were stipulated in the application.  They read as follows:

“1.       The delegate had refused to allow the applicant to lodge a residence visa application on the basis of condition 8503 was not correct and involved an error of law.

2.         That new section 41(2A) of the Migration Act allows condition 8503 ‘no further stay’ to be waived in prescribed circumstances and regulation 2.05(4) prescribes the circumstances in which condition 8503 may be waived.

3.         The officer representing the Minister at the Australian High Commission in Tonga wrongly failed to inform the applicant regarding the new s 41(2A) of the Act which came into force on 1 March 1999.

4.         The delegate failed to take into account the effect on the UN Convention on the Rights of the Child which affords the Minister with some discretionary power to waive condition 8503 if it has a compelling and compassionate circumstances.

5.         The application was not barred by s 48 of the Act or any other bar.

6.         The applicant has satisfied the requirements as specified in ss 45 and 46 of the Act.

7.         The applicant is physically and socially handicapped since he was four years old and the Declaration of the Rights of the Child and ratified by Australia has some legal forces in the present case.

8.         An exercise of a discretionary power in accordance with a policy without regard to the merits of the case.”

8                     The matter came before me on 7 February on which day Mr Mafi was represented by Mr Fonua who is not a legal representative.  Mr Fonua indicated that a constitutional issue arose in the case.  Although it was not clear to me just how a constitutional issue did arise I directed that it be properly formulated and that a notice of it be given in accordance with s 78B of the Judiciary Act 1903. The notice indicated that Mr Mafi was and had been since the age of four physically and socially handicapped.  It alleged that the United Nations Declaration on the Rights of Disabled Persons had “some legal forces [sic] in the present case”.  The constitutional issues said to arise were stated as follows:

“1.       Whether it is beyond the legislative power of the Commonwealth Parliament to enact legislation which authorises the making of regulations, namely, condition 8503 ‘no further stay’ inconsistent with treaties ratified by the Commonwealth pursuant to section 47 of the Human Rights and Equal Opportunities Commission Act 1986.

2.         Whether it is beyond the legislative power of the Commonwealth Parliament to enact legislation in the form of the Migration Act 1958 which authorises the making of regulations having an unjust effect on individuals.”

9                     Notice was, in accordance with my directions, given to the Attorneys-General of the Commonwealth, States and Territories.  The Attorney-General of the Commonwealth has indicated that he does not wish to intervene.  No response has been received from the Attorneys-General of the States and Territories and it can be concluded that they also have no desire to intervene.

10                  Mr Mafi came before me this morning unrepresented although assisted by an interpreter.  He handed to the Court some written submissions.  However, before doing so he said that he had come to Australia because of his father’s funeral.  It had been 12 years since he had seen his parents and because (perhaps although) his father had died before he had arrived he had felt confident when he stayed with his mother.

11                  That was, he said, the reason why he sought to spend more time with his mother.  This was, he said, the only reason why he sought to have the condition waived to permit him to stay here.  I should say that this is somewhat in conflict with the suggestion made in the application to the Minister to waive the condition that his reason for wishing to stay was related to his mother’s depression.

12                  In the written submissions it is said that the condition 8503 “no further stay” was incorrectly imposed at the time the visa was issued.  No explanation is given as to why the condition was incorrectly imposed.  I note also that the application before me is not directly a challenge to the imposition of the condition but rather a challenge to the refusal by a delegate of the Minister to waive the condition.  It is then said that Mr Mafi had met the required criteria for the condition to be waived.

13                  It is presumably correct that at least some of the necessary conditions have been complied with.  The real question is, however, whether there were circumstances which fell within s 41(2A) of the Migration Act 1958 (“the Act”).  The statutory scheme may be shortly explained as follows.  The Act provides for temporary visas and the prescribing of criteria for such visas.  Section 41 of the Act 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 protective visa) while he or she remains in Australia ...

(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).”

14                  The circumstances prescribed pursuant to s 41(2A) are to be found in regulation 2.05(4) of the Migration Regulations which 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)       ...

(c)        if the person asks the Minister to waive the condition, the request is in writing.”

15                  The question which thus arose for the delegate was whether, since the time the visa was granted, compelling and compassionate circumstances of the kind referred to in regulation 2.05(4) had developed.  The delegate was of the view that they had not.  Given the fact that virtually no information had been put to the delegate it is hardly surprising that he reached the decision he did.  No doubt there could be cases where medical evidence supported a submission that the applicant’s mother had developed a medical condition such as depression, being something more than mere sadness where it could be said that there were compelling circumstances over which the applicant had no control and that had resulted in a major change to his/her circumstances.  However that was not the way the present case was put to the delegate.

16                  The submissions then proceed by suggesting that Mr Mafi had been threatened in Tonga, suggesting that his signature was obtained in some way under duress.  May I say that there is not a skerrick of evidence to support that allegation.  If all that is meant by the submission is that it was a condition of the grant of the visa that he acknowledge his understanding of the condition that could hardly invalidate the grant of the visa.

17                  In any event the submission has no force, both because it is unsupported by evidence and because the decision presently under review is not the decision that he be issued with the visa but rather the decision that the conditions attached to it be not waived. 

18                  The remaining two submissions concern the so-called constitutional matter.  It is said that Mr Mafi is physically and socially handicapped and has been so handicapped since he was four years of age.  There is not any evidence to support that proposition.

19                  It is of course difficult for non-lawyers to understand that courts can only proceed on evidence.  It was for this reason that when the matter was before me on an earlier occasion I counselled Mr Mafi that he not rely on Mr Fonua, who has no legal training, but rather that he attempt to obtain legal representation.  For whatever reason Mr Mafi chose not to.  In the absence of evidence it is hard to see how any question relating to the United Nations Declaration on the Rights of Disabled Persons arises.

20                  It is the case that Australia is a party to the United Nations Declaration on the Rights of Disabled Persons.   That declaration, like many other United Nations declarations and treaties has not been enacted into the domestic law of the country.   This is not to say that they may not in a particular case have some relevance to the exercise of discretion by a decision-maker.  However, it is certainly not the case that merely because a treaty has been entered into by the executive on behalf of the Commonwealth of Australia that domestic legislation inconsistent with that treaty could in some way be void.

21                  Reference may be made, for example, to the cases of Tuitupou v Minister of Immigration & Multicultural Affairs [2000] FCA 197 and Fakatabar v Minister of Immigration & Multicultural Affairs [2000] FCA 118 where this issue has been the subject of discussion. 

22                  So far as the final submission is concerned it is not clear to me in what way, so far as it may impinge upon Mr Mafi, it can be said that the Migration Regulations do have an unjust effect upon him.  In the present case the regulations provide circumstances whereby conditions attaching to visas may be waived.  The prescribing of such circumstances could hardly be said to be unjust. 

23                  If there be any issue of justice at all it presumably can only be in relation to the imposing of a condition upon the grant of visa.  Just why it is unjust for a condition to be imposed that no substantive visa be applied for while the visitor is in Australia has not been made clear to me.  The difficulties that would arise if courts were required to pass upon the justice of regulations forms one of the reasons why there is no legal principle that regulations are invalid if their effect is submitted to be unjust.  Provided that a regulation is made in accordance with a rule-making power enacted by Parliament and the making of the regulation is reasonably proportionate to the exercise of the power, the regulation will be valid.  It is not for the Court to strike down delegated legislation by reason of the judge’s individual view as to what constitutes justice.

24                  It may, in an appropriate case, be a ground of invalidity that the exercise of the rule-making power is so unreasonable as not to be a real exercise of the power;  cf Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211.  The present case is far removed from the issues which arose in that case.   The application must accordingly be dismissed.

25                  I order the applicant to pay the Minister’s costs.

Associate:

Dated:              20 April 2000