FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 360

IMMIGRATION – application to review decision of delegate refusing to waive condition 8503 (a ‘no further stay’ condition) – condition 8503 attached to granting subclass 456 temporary business visa – whether there is an obligation to ensure an applicant is fully consulted about the effect of condition 8503– whether the delegate failed to refer to the applicant’s marriage in making decision - whether marriage is a “compelling and compassionate circumstance”

WORDS AND PHRASES – “compelling and compassionate circumstances”

Migration Act 1958 ss 41(2), 475(1), 478, 481(1)

Migration Regulations 1994 (Cth) sch 8

Thongpraphai v Minister of Immigration and Multicultural Affairs [2000] FCA 1590 followed

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

TINH TAI NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V555 OF 2000

MARSHALL J

MELBOURNE

6 MARCH 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         The applicant to pay respondent’s costs, including reserved costs, if any.

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

REASONS FOR JUDGMENT

1                     On 1 August 2000 the applicant, Tinh Tai Nguyen, made application for an order to review a decision of a delegate of the respondent.  The delegate had refused to waive a "no further stay" condition (“condition 8503”), which had been imposed as a condition of the respondent granting Mr Nguyen a subclass 456 temporary business visa (“the business visa”).  The decision was made on 28 July 2000.  Mr Nguyen sought a declaration pursuant to s481(1) of the Migration Act 1958 (Cth) (“the Act”), that the delegate's decision was invalid and contrary to law.  He also, inter alia, sought the following relief:

1.         An order setting aside the decision;

2.         An order that the respondent give further consideration according to law to all the matters to which the decision relates.

Background

2                     Mr Nguyen is a 44-year-old citizen of Vietnam.  On 25 April 2000 he applied for the visa.  He sought a two-month stay in Australia after applying at the Australian Consulate-General in Ho Chi Minh City (“the Consulate”).  Mr Nguyen attended the Consulate on 17 May 2000.  He signed an acknowledgment of the condition 8503 and was issued with the business visa.  Departmental records reveal that the condition 8503 was carefully explained to Mr Nguyen prior to his signed acknowledgment.

3                     The respondent relied on the affidavit of an accredited Vietnamese interpreter and translator, Mr Xuan Lap Le.  Attached to Mr Le's affidavit is a notice in Vietnamese from the Consulate to Mr Nguyen and an English translation of that document.  At the bottom of the document the following appears in the English translation:

“Declaration:

 I, Nguyen Tai Tinh, realise and fully understand all the above provisions that have clearly been specified on my visa. 

17 May 2000.

( Signature appeared here) 

Nguyen Tai Tinh.”

4                     The original Vietnamese document contains Mr Nguyen's signature.  It is consistent with the signature which appears on Mr Nguyen's application for the business visa.  Somewhat surprisingly, the English translation of the document does not refer to a business visitor visa but to a tourist visa.  This appears to be an error in the document itself because what was applied for and granted was a two-month business visitor visa. 

5                     Mr Nguyen arrived in Australia on 2 June 2000.  On 20 July 2000 Mr Nguyen married an Australian citizen.  On 26 July 2000 he sought to apply for a spouse visa.  Departmental representatives refused to accept the application in light of the condition 8503 which attached to the business visa.  At this time Mr Nguyen claimed that the condition 8503 was invalid because the procedural requirements necessary for its imposition had not been met.  Mr Nguyen's claim in this respect was treated as a request for the waiver of the 8503 condition.  On 28 July 2000 Mr Joseph Petyanksi, a delegate of the respondent, wrote to Mr Nguyen's solicitor, Mr Koenig, in the following terms:

“On 26 July 2000, you made a written request for the waive of the 8503 ‘no further stay’ condition which was imposed on the subclass 456 temporary business visa of Mr Nguyen, granted on 17 May 2000 in HoChi Minh City for single travel and enabling a stay of two months.

Paragraph 41(2) of the Migration Act states that a visa may be subject to the condition that the visa holder will not be entitled to the grant of a substantive visa (other than a protection visa) while they remain in Australia.

Such conditions are described in the Migration Regulations at Schedule 8 – Visa Conditions.  Item 8503 (the No Further Stay condition) at Schedule 8, 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 8503 condition operates as a bar on valid applications for all classes of visa other than a protection visa or bridging visa under paragraph 46(1)(e), unless the Minister (or his delegate) has waived the condition under subsection 41(2A) of the Act.

The waiver is only available in prescribed the [sic] circumstances set out in regulation 2.05(4), which states:

“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 are substantially different from those considered previously; and

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

Our records show that Mr Nguyen was interviewed by an appropriately delegated officer who counselled Mr Nguyen fully about the implications of the 8503 condition, and, that he agreed in writing to the condition being imposed on his visa.  Our office holds a copy of this undertaking written and signed by Mr Nguyen in Vietnamese.

Accordingly, I am writing to advise you that in assessing Mr Nguyen’s submission against legislation, there was no evidence found of any compelling or compassionate circumstance that has developed since the grant of the visa with the 8503 condition.  This means that I have not exercised the waiver and the condition remains in place.  Mr Nguyen is therefore prevented from making a valid application for any classes of visa other than a protection visa or bridging visa under paragraph 46(1)(e).”

6                     The respondent conceded in his written submissions that the refusal of the delegate to waive the 8503 condition is a judicially reviewable decision for the purposes of s475(1)(c) of the Act.  It was a decision "made under (the) Act" and was one which was "relating to (a visa)".  See also Thongpraphai v Minister of Immigration and Multicultural Affairs [2000] FCA 1590 (“Thongpraphai”) at [2] per O'Loughlin J.  I accept the respondent's concession as being soundly based.  

Statutory Context 

7                     Section 41(2)(a) of the Act provides that a visa may be subject to the condition that the visa holder will not be entitled to the grant of a substantive visa (other than a protection visa) while the visa holder remains in Australia.  Schedule 8 to the Migration Regulations 1994(Cth) (“the Regulations”) contains condition 8503 and defines it as follows:

“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.”

8                     Paragraph 456.612 of the regulations provides that condition 8503 may be imposed on a subclass 456 business visa.  As O'Loughlin J acknowledged in Thongpraphai at [4]:

“[Subsection] 41(2A) empowers the Minister to waive that condition in prescribed circumstances…”

9                     Paragraph 2.05(4) of the Regulations sets out the circumstances in which the respondent may waive a condition 8503. They are 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 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.”

Submissions and Conclusions 

10                  The chief submission of counsel for the applicant was that the delegate did not refer to the fact of Mr Nguyen's marriage in making his decision to refuse to waive the 8503 condition.  However, in my view it is obvious that the delegate was aware of the fact of the marriage. The application for the waiver of the condition 8503 arose in the context of the refusal by the respondent to accept an application for a spouse visa because of the very existence of the condition 8503.  It was further submitted on behalf of Mr Nguyen that the respondent was obliged to ensure that Mr Nguyen was fully consulted about the effect of the condition 8503. That submission was similar to a submission put and rejected in Thongpraphai at [13].

11                  It must also be borne in mind that the instant application does not challenge the decision of the Consulate official in Vietnam to impose the condition.  Any challenge to that decision is barred by virtue of s478 of the Act as no application to the Federal Court was lodged within 28 days of the decision being made. In any event, the only obligation imposed on the respondent by his own policy with respect to condition 8503 is that applicants for visas be told that the condition will be imposed on their visas.  I also reject ancillary submissions made on behalf of Mr Nguyen that the decision of the delegate to refuse to waive condition 8503 involved an improper exercise of power.  The delegate acted properly in considering the application for waiver in the sense that he applied criteria relevant to the exercise of his discretion. This much is revealed in his letter, which is quoted above at [5] in these reasons for judgment.  He did not err in law. 

12                  The essential question for the delegate was whether any of the circumstances referred to in paragraph 2.05(4) of the Regulations were made out (i.e. were there compelling and compassionate circumstances). Hill J acknowledged that this was the relevant question in relatively indistinguishable circumstances in Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566 at [15].  It should also be borne in mind that the concept of a compelling and compassionate circumstance, as O'Loughlin J reveals in Thongpraphai at [21], is one that relates to "an event or events that are far reaching and most heavily persuasive".  The fact of a marriage to an Australian citizen without more, in my view, can rarely if ever constitute an event which is a compelling or compassionate circumstance in the sense discussed by O'Loughlin J.  Consequently, it is my view, that no legal error was made by the delegate in determining that no such "compelling and compassionate circumstances applied".  Accordingly the application will be dismissed. 

Associate:

Dated: 2 April 2001