FEDERAL COURT OF AUSTRALIA

Naidu v Minister for Immigration & Multicultural Affairs [2000] FCA 951

RADHIKA NAIDU v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1373 OF 1999

HILL J

10 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant, Radhika Naidu, asks the Court for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) not to waive a condition imposed with respect to a visitor’s visa granted to her on 23 February 1998.  The application also seeks review of what is said to be a subsequent decision, although perhaps really a consequential decision, that the applicant’s application for a subclass 820-801 spouse visa, which she had lodged on 22 March 1999, was invalid.

2                     There is no dispute between the parties as to the background facts.  The applicant is a national of Fiji who apparently had a long term relationship with a citizen of Australia, Mr Anthony Bernard Eisenhuth, whom she subsequently married.  The applicant applied for the grant of a visitor’s visa to enter and stay in Australia in early 1998 and was granted such a visa on 27 February 1998. 

3                     She was required to give an undertaking acknowledging that the grant of the visa would not allow her to be granted any further stay in Australia or to seek to settle permanently in Australia beyond the 3 month period that was authorised.  She subsequently arrived in Australia in March 1998.  The ground on which she sought permission to enter and remain in Australia was stated in her application in the following terms:

“My husband is seriously ill in Australia.  He is facing a operation on his heart.  It is necessary for me to go to his side.  So I am there while he is operated on and during his recovery.”

4                     On 22 March 1999, the applicant’s solicitors applied to the Minister to waive the condition attached to the visa referred to in correspondence as the “no further stay” condition and applied for a subclass 801-820 spouse visa.  The application referred, inter alia, to the applicant’s husband’s “serious medical condition”.  Either with that letter or a subsequent letter, detailed medical evidence was submitted.

5                     On 21 October a delegate of the Minister decided not to waive the condition.  A consequence of that decision was that the applicant was unable to make an application for a substantive visa whilst she remained in Australia.  The decision was notified to the applicant by letter dated 21 October 1999.  After referring to the basic underlying facts the author of the document made the following comments under the heading “Compelling and compassionate reasons”:

“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 a condition (reg.2.05(4)).  According to departmental policy guidelines, a major change in a visa holder's 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]  A marriage to an Australian citizen itself would not constitute such a change in circumstances.

Mrs Naidu and Mr Eisenhuth were married on 21.4.98 ... They claimed that they had been in a spouse relationship in Fiji since 09.12.96 despite the fact that Mr Eisenhuth has remained in Australia since 12.7.97 ... Irrespective of the length of the claimed relationship, Mrs Naidu marriage to an Australian citizen does not constitute a compelling and compassionate circumstance that has developed beyond her control since she was granted the visa with the 'no further stay' condition 8503. 

In considering whether compelling and compassionate circumstances have developed since her arrival in Australia on the visa with condition 8503, I take into account the following information provided by Ms Naidu: 

·        in her visitor visa application ...

·        in support of her visitor application ...

·        in relation to Mr Eisenhuth's health ...

It is clear there has been no change in the couple's circumstances.  It was Mr Eisenhuth’s health (illness and surgery) that prompted Ms Naidu to travel to Australia on a visa with the ‘no further stay’ condition.  It is Mr Eisenhuth’s same health problems that is the basis of this request to waive the conditions.

Based on all the information before me I am not satisfied that compelling circumstances have developed beyond the couple’s control since Ms Naidu 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.”

6                     The author accordingly recommended that the “no further stay” condition not be waived.

7                     At the relevant time the decision was made migration regulation 2.05(4) prescribed the circumstances in which condition 8503, that is to say the “no further stay” condition, may be waived.  That regulation 2.05(4) then read as follows:

“For subsection 41(2)A of the Act, the circumstances in which the Minister may waive a condition of the kind described in paragraph 41(2)(a) of the Act are that: 

(a)       compelling and compassionate circumstances have developed since the person was granted that visa that was subject to condition;  and

(b)       if the Minister has previously refused to waive the condition the Minister is satisfied that the circumstances are substantially different from those considered previously;  and

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

8                     It may be noted that the regulation in the meantime has changed so that paragraphs (a) and (b) now read as follows:

(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 the circumstances mentioned in paragraph (a) are substantially different from those considered previously.”

9                     The application for review in its amended form relied upon two grounds.  The first was that there was an error in the interpretation in the applicable law and its application of the facts; the second that there was an improper exercise of power being an exercise in accordance with policy without regard to merits.  Both grounds were particularised in the following way:

“The delegate erred in applying reg 2.05(4)(a) of the Migration Regulations by failing to examine whether there had been a major change in the applicant’s circumstances between when her visitor visa was granted and when she applied for waiver of condition 8503.  Rather, the delegate regarded the matter as concluded by being able to apply the same general description of the applicant’s circumstances (as concerning her husband's health or health problems) at both times.”

10                  In support of the application the applicant filed in Court a copy of the relevant policy guidelines in force at the time.  The evidence was read subject to the ability of the Minister to challenge the document as the relevant policy guideline, should it turn out that it was not the relevant guideline in force at the time.  The policy under the heading “Waiver Provisions - Overview”, contained the following:

“7.6.1  The policy intention is that condition 8503 may be waived after the visa holder enters Australia if circumstances now exist that could not have been foreseen when the visa was granted (and condition 8503 was attached), and which are beyond the control of the visa holder, where compelling and compassionate reasons exist for granting the waiver.

7.6.2    The decision to waive the condition 8503 should not be taken lightly;  waivers should be granted only in exceptional circumstances such as those outlined in paragraph 7.8.2 below.  This is because the original decision to attach condition 8503 to a visa is taken only after serious consideration of the particular circumstances of a case.  It is not the intention of policy that the availability onshore of waiver provisions, even if there has been a change in the visa holder’s circumstances, be an easy way for such persons to circumvent the imposition of the 8503 condition.

7.6.3    Section 41(2A) of the Act allows condition 8503 to be waived in prescribed circumstances:

·        Section 46(1)(e)(ii) of the Act provides that a visa application made in Australia is valid if the applicant has, since last entering Australia, held a visa subject to condition 8503 but the Minister (or delegate) has waived the condition under s 41(2A).

·        Regulation 2.05(4) prescribes the circumstance in which condition 8503 may be waived, namely

·        compelling and compassionate circumstances have developed since the visa that had the condition imposed was granted; and

·        if DIMA has previously refused to waive the condition, the decision maker considering the current request is satisfied that the circumstances now presented are different from those considered previously; and

·        if the visa holder asks that the condition be waived (see paragraph 7.9.1 below), their request must be in writing.”

11                  The clear thrust of the policy seems to me to be that a waiver can only be made if circumstances existed at the time of waiver that could not have been foreseen when the visa was granted, those circumstances being such as to be beyond the control of the visa holder and, of course, there being compelling and compassionate reasons existing for granting the waiver.

12                  It is clear enough to me that the decision-maker regarded the statement in 7.6.1 as representing the law. It is obvious enough it does not.  The first paragraph of the decision-maker’s reasons, though referring to the policy guidelines as such, repeat the guideline requirements of non-anticipation. If it matters, the second paragraph repeats the guideline condition that the change in circumstance be beyond the control of the applicant.  Subject to the question whether the delegate’s statement of principle affected the outcome, it is clear to me that the delegate stated at least the wrong test and in so doing erred in law.

13                  What is required to be considered under the regulation as in force at the relevant time is that compelling and compassionate circumstances have developed since the original grant of visa subject to condition.  If compelling and compassionate circumstances did develop then it would be immaterial that that development was capable of being anticipated.  While I have not heard any argument on the question it would probably likewise be immaterial that the circumstances developed even though they were subject to control on the part of the applicant.

14                  I was referred in the course of argument to a decision of the House of Lords in Hayles v Bolton Leathers Ltd [1951] AC 531 on the meaning of the word developed in the context of workers compensation legislation. As Lord Symonds at 541 observed, there could be a development in circumstances where originally there had been a disease which had become inactive and later there was a recrudescence of it (see, too, per Lord Normand at 543). 

15                  Likewise in the present case, there could be a development of circumstances which were compelling and compassionate in a case where those circumstances were brought about by a change in a medical condition, even though that change in condition bringing about a change in circumstance might perhaps be anticipated.

16                  A great deal of the argument concentrated upon what was said to be a different error of law, namely that the Tribunal had concluded that there was no development of circumstances because the health problem Mr Eisenhuth had at the time the waiver was refused was quite the same health problem as he had earlier had.  Counsel for the applicant submitted that it was open on the evidence before the decision-maker for the decision-maker to have determined that Mr Eisenhuth’s health had significantly deteriorated.  For example counsel pointed to a letter from a consultant psychiatrist dated 18 February 1999 that he was unable to return to Fiji and would not be well enough to do so in the foreseeable future because of his condition.

17                  A difficulty that submission faces is that it comes perilously close to seeking the Court to review the decision-maker’s decision on the merits.  In saying this I accept, as counsel for the Minister submits, that the reasons of a decision-maker should be read beneficially, not by a mind attuned to error, and in the understanding that it is for the decision-maker, in the present case, to be satisfied whether compelling and compassionate circumstances did in fact develop after the grant of the visa subject to condition.

18                  A more difficult problem in the present case is whether the erroneous statement of law which the decision maker assayed could have affected the decision which she reached.  Obviously the Court would not set aside a decision which erroneously stated the law where that erroneous statement could have not have in any way affected the decision.  To do so would be futile and pointless.

19                  Counsel for the Minister submitted that the reference to lack of anticipation had no bearing at all on the decision which the delegate had reached.  It was submitted that the delegate reached the conclusion that there had been no change of circumstance between the initial grant of the visa and the decision not to waive the condition.  Rather it was submitted the delegate had engaged in a clear comparative inquiry between the circumstances that existed at the time the initial conditional visa was granted and those that existed at the time of the decision.  It was the view of the delegate, it was submitted, that there had been no change of circumstance because presumably the health situation or health problem was the same at both times. 

20                  The difficulty I have with that submission is that it is quite possible that the decision-maker's decision was affected by his statement of the position.  After all, why refer at all to the requirement or to the provision in the guidelines that the change in circumstance be such as not to be anticipated in such a short statement of reasons unless this was regarded as having some significance?  As I understand the law, where an erroneous principle is stated and that erroneous principle may have affected the outcome, the appropriate order is that the decision be set aside and that the matter be remitted to a decision-maker to be done again.

21                  One can put it in another way.  The decision-maker might very well have confined her consideration of the possible changed circumstances only to such matters as were incapable of anticipation and thereby constrained the matters taken into account in concluding that it was the same health problems which existed.  It is for this reason that I would set aside the decision.   The application should be reconsidered subject to such evidence as may then appropriately be before the decision-maker.

22                  I should say that it was not suggested by counsel for the Minister that the matter should be considered under the regulations in amended form although to be fair to counsel, this was not a matter that was the subject of examination in the course of hearing.  On the face of it, it would seem that the applicant would be entitled to have the matter considered in accordance with the regulation, as it existed at the time she made the application.  However in so saying I am not to be taken as having decided the point.

23                  There may also be some relevance in the fact that the political situation in Fiji has changed since the application was made.

24                  It is also unnecessary for me to address a matter that was dealt with in some detail in the written submissions, namely whether the decision-maker slavishly applied a policy as if binding without appropriate consideration of the particular circumstances.

25                  In one sense this is but a mirror image of the argument that the Tribunal erred in its interpretation of the law, cf Drake v The Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. 

26                  The Minister submitted that in the circumstances as the point on which the applicant is entitled to succeed was one raised in the course of argument and not precisely dealt with in the application for review or written submissions, I should make no order as to costs  No doubt the ground of review was capable of encompassing it although the particulars certainly did not.  However, it seems to me that the applicant has been successful and that the ordinary rule should follow, namely, that the respondent should pay the applicant’s costs.

27                  I note an undertaking given by counsel for the applicant not to take out the orders for a period of three days to enable the Minister, if so advised, to have the matter re-listed should any other evidence as to policy be intended to be filed.

28                  The orders I would make are that the decision of June Harry, delegate of the respondent, notified to the applicant’s solicitors on 28 October 1999 not to waive condition 8503 to which the applicant subclass 676 visitors visa granted on 22 February 1998 was subject, be set aside and the matter be remitted to the Minister to be decided by another delegate or the Minister himself as the case may be afresh and in accordance with such evidence as should then be before the then decision-maker.

Associate:

Dated:              10 July 2000