FEDERAL COURT OF AUSTRALIA

Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408

Migration – visas – waiver of “no further stay” condition imposed on visa – whether foreseeability of circumstances precludes waiver of condition

Migration Regulations 1994, reg 2.05(4)

ANNIE SCHAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 600 OF 2000

JUDGE:          WHITLAM J

DATE:            6 OCTOBER 2000

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the respondent’s delegate made on 30 May 2000 refusing to waive condition 8503 imposed on the applicant’s visa is set aside.

2.                  The applicant’s request to waive that condition is referred to the respondent for further consideration according to law.

3.                  The respondent pay the applicant’s costs of this proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (“the Act”) for review of the decision made by a delegate of the respondent on 30 May 2000 refusing to waive a condition imposed on a visa held by the applicant.

2                     The applicant is a British national resident in South Africa.  On 20 February 2000 she was granted a visa to visit Australia subject to the condition set out in clause 8503 of Schedule 8 to the Migration Regulations 1994 (“the Regulations”), which 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.”

3                     On 12 March the applicant arrived in Australia, and on 11 May she asked the respondent to waive condition 8503.  Section 41(2A) of the Act permitted the respondent to waive that condition in the following circumstances prescribed by reg 2.05(4) of the Regulations:

“(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 are substantially different from those considered previously; and

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

4                     The applicant’s request for a waiver was prepared by a migration agent.  The applicant made a statutory declaration in which she claimed that the condition was ineffective because it had been imposed “unlawfully”.  However, having said that she came to Australia “to visit my only two children, both of whom live permanently in Australia”, she went on to say:

“In the event your Department is not able to find that condition 8503 is void ab initio, I believe I am entitled to a waiver of condition 8503 on the following grounds:

(a)               circumstances now exist that could not have been foreseen when the visa was granted.

On 30 April, 1999 my husband Mr. Jan Schaap passed away (death certificate Attachment ‘D’) The first anniversary of my husbands [sic] death is approaching on 30 April, 2000, and at the time of the grant of the visa I was not aware that my mental well being [sic] would require me to stay longer with my daughters in Australia.

(b)               my current circumstances represent a major change from my circumstances at the time condition 8503 was imposed.

At the time of condition 8503 being imposed, it was approximately 7 months since the death of my husband and I was coping well [with] the loss.  I had come to terms with the fact that he had passed away and it was time for me to ‘get on with things’ and accept that I would now be alone.  I was happy and very much looking forward to visiting my daughters. 

However since arriving in Australia by [sic] emotional state has decreased to such an extent that I believe I need to spend longer with my daughters for my personal health and well being [sic].

(c)               such circumstances are beyond my control.

I have no control over my depressed emotional state.

(d)               such circumstances are compelling and compassionate.

My current circumstances are compelling and compassionate for the fact that I am 79 years old, my only children reside in Australia, my depressed emotional state is beyond my control, I have no immediate family to look after me back home in South Africa, and I have, in the past year, lost my husband.

(e)               such circumstances are exceptional.

The exceptional circumstances are that at the time of the grant of the visa I did not envisage that my health and welfare would place me in then [sic] position where I felt compelled to remain in Australia for a longer period with my daughters.  Additionally I am now physically unable to travel in and out of Australia at such regular intervals as is required where no further stay is imposed on my visa.

(f)                not granting a waiver would cause me significant hardship.

I am required to travel in and out of Australia as a result of not being eligible to obtain a further stay, such travel would cause me considerable personal hardship.”

The request was accompanied by documentary evidence of the applicant’s marriage, the births of her two daughters, their residence in Australia and her husband’s death.  The agent also enclosed a letter dated 13 April 2000 from a Dr David Gahan of Ettalong Beach, stating that the applicant had “begun to grieve for her husband again” and that there were “obvious benefits for Mrs Schaap in remaining in Australia for her continuing mental health especially with her current grief.”  On 23 May the applicant’s migration agent wrote to the respondent’s Department confirming her client’s intention, if condition 8503 were removed, to apply for an aged parent’s visa so that “she may spend the rest of her life in Australia.”

5                     On 30 May 2000 the respondent’s delegate refused to waive the condition.  It having been found that condition 8503 was validly imposed, the decision record stated:

“Regulation 2.05(4)(a) requires the “compelling and compassionate” circumstances giving rise to the request for waiver to have arisen since the visa to which condition 8503 was attached was granted.  It also requires there to be a major change in the person’s circumstances over which the person had no control.

According to departmental policy guidelines, condition 8503 may be waived after the visa holder enters Australia if circumstances now exist that could not have been foreseen when the visa with condition 8503 was granted and which are beyond the control of the visa holder.

Mrs Schaap stated she had been widowed in April 1999 and that at the time condition 8503 was imposed on her visa, she had come to terms with the loss of her husband.  She stated she was coping well and had accepted that she must be alone.  However since her arrival in Australia and with the approach of the first anniversary of her husband’s death, her emotional state had decreased and she now needs to remain longer with her daughters.  I accept that there has been a change in Mrs Schaap’s mental well being [sic] since she was granted her visa and that she would like to remain permanently in Australia with her daughters.  However the change in her mental well-being is not something that could not be foreseen with the approach of the first anniversary of her husband’s death.  Whilst Mrs Schaap may not be able to control the change in her emotional state it is something that can be foreseen and be expected to occur at such a time.

I accept that because of her age it may be physically inconvenient for Mrs Schaap to be travelling in and out of Australia on a regular basis.  I have taken in[to] the account report of Dr Gahan (f.6), however I find no evidence that Mrs Schaap is now unfit to travel or that she has an illness or medical condition that has developed since her arrival in Australia.

I have considered all the information provided and I understand and accept the reasons why Mrs Schaap on [sic] would like to apply for permanent residence while she remains in Australia.  I understand the difficult situation Mrs Schaap will be in on her return to South Africa where she has no immediate family.  I accept that her circumstances are compelling and compassionate.  However these circumstances have not developed since Mrs Schaap was granted the visa with condition 8503.

Based on all the information before me, I am not satisfied that that [sic] has been a major change to Mrs Schaap’s circumstances since she was granted the visa with condition 8503 to justify the waiver of the 8503 ‘no further stay’ condition.”  (Emphasis supplied)

6                     The present application for an order of review relies on the grounds specified in pars (d), (e) and (g) of s 476(1) of the Act.  The particular allegations concern guidelines in the Procedures Advice Manual (“PAM”) used within the respondent’s Department.

7                     The “no evidence” ground related to the allegation that condition 8503 was not validly imposed.  It depended on a section of the PAM dealing with counselling procedures to be followed before a visa subject to such a condition is granted.  In the event, counsel for the applicant wisely did not pursue this ground.  However, the remaining grounds require consideration of that part of the PAM which contains the guidelines for reg 2.05.  In a section described as an “overview”, paragraph 4.1.1 states:

“Regulation 2.05(4)(a) gives effect to the policy intention 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.”

8                     It will be observed that, in the second paragraph of the excerpt I have extracted from the decision record, this paragraph of the PAM has been paraphrased.  (Indeed, the migration agent appears also to have had regard to its language in settling the first “ground” of the waiver request in the applicant’s statutory declaration.)  Counsel for the applicant submits that reg 2.05(4) does not require that any change in a person’s circumstances “could not have been foreseen”.  I accept this submission.  Foreseeability represents, in my opinion, an entirely unwarranted gloss on the plain meaning of the regulation.  The solicitor for the respondent submits that, even if that be so, the delegate plainly considered that the change in the applicant’s mental well-being had not developed since the visa was granted.  I cannot accept that submission.  I have highlighted in the excerpt from the decision record the way that the applicant’s emotional state was dealt with.  It seems to me that the officer then puts that aspect of the applicant’s circumstances aside and proceeds to deal with the physical difficulties travel poses for the applicant before finding “no evidence that Mrs Schaap is now unfit to travel or that she has an illness or medical condition that has developed since her arrival in Australia.” 

9                     The respondent’s written submissions to the Court state:

“While it was accepted that there had been a change in the applicant’s emotional state as the first anniversary of her husband’s death approached, it was considered that this was a change which was foreseeable.  Thus viewed, the delegate was of the view that the circumstances relied upon by the applicant had not developed since the visa was granted to her.”

I think that this submission accurately depicts the view reflected in the decision record.  It also demonstrates, in my judgment, how that officer’s application of “the policy intention” stated in the PAM caused her to misconstrue par (a) of reg 2.05(4).

10                  I am, of course, conscious of the need not to read the reasons of an administrative decision-maker with an eye too finely tuned for error.  In the particular circumstances  of this case, it is also true that the material presented on behalf of the applicant, especially the letter from Dr Gahan, hardly suggests an overwhelmingly strong case of a major change in her circumstances.  However, the applicant is entitled to be confident that the respondent or his delegate has, in fact, considered whether or not the accepted change in her mental well-being meets the requirements of reg 2.05(4)(a).  The application for review advances a case under par (c) of s 476(3) of the Act, but I think the preferable view is that the delegate’s decision involved an incorrect interpretation of the law and the ground under par (e) of s 476(1) of the Act has been made out.  The delegate’s decision will accordingly be set aside and the applicant’s request referred to the respondent for further consideration.  The respondent must pay the applicant’s costs.

Associate:

Dated:              6 October 2000

John Parnell of counsel appeared for the applicant

Ms Dale Watson of the Australian Government Solicitor appeared for the respondent.