FEDERAL COURT OF AUSTRALIA

Vahaakolo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 648

MIGRATION – judicial review of decision of Minister’s delegate to refuse to consider an application for a Subclass 802 visa – Minister’s delegate determined that application for visa was invalid – applicant did not apply for waiver of Condition 8503 of Schedule 8 to Migration Regulations 1994 (Cth) prior to lodging visa application – no reviewable error disclosed

Migration Act 1958 (Cth) s 41(2)(a), 41(2A), 46(1A), 47(3), 47(4), 476

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 (Cth) Regulation 2.05(4), Schedule 8 Item 8503

Fifita v Minister for Immigration & Multicultural Affairs [2000]FCA 1719

Soondur v Minister for Immigration & Multicultural Affairs  [2001] FCA 124

NACO v Minister for Immigration & Multicultural Affairs [2002] FCA 474

SIONE VAHAAKOLO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 114 OF 2002

HELY J

23 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     On 27 January 1999 the applicant was granted a visa to travel to and enter Australia and to remain in Australia for a period of one month as a visitor.  The visa was endorsed “Conditions Mig. Regs. Sched. 8 ... 8503 No Further Stay”.  Item 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) provides for a visa condition in the following terms:

“8503:      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 source of the authority to impose that condition is s 41(2)(a) of the Migration Act 1958 (Cth) (“the Migration Act”) when read with Regulation 2.05 and such of the provisions of Schedule 2 to the Regulations as are applicable to a Subclass 676 Tourist (Short Stay) visa, particularly criterion 676.6. 

2                     Section 41(2)(a) of the Migration Act provides, in effect, that the Regulations may provide that visas are subject to a condition of the type contained in Condition 8503.  Section 46(1A) of the Act provides that an application for a visa is invalid if, since last entering Australia, the applicant has held a visa subject to a condition described in s 41(2)(a) and the Minister has not waived that condition under s 41(2A). 

3                     Section 41(2A) was inserted into the Migration Act with effect from 1 March 1999.  Section 41(2A) allows the Minister, by writing, to waive a condition of the kind referred to in s 41(2)(a) in prescribed circumstances.  Those circumstances are as set forth in Regulation 2.05(4), of which the most important may be summarised briefly as the development of compelling and compassionate circumstances since the visa was granted on that condition, over which the visa holder had no control, but which have resulted in a major change in that person's circumstances.

4                     On 7 February 2002 the applicant lodged with the Department of Immigration & Multicultural Affairs (“DIMA”) an application for an Subclass 802 visa.  Eligibility for a visa of that type may depend upon whether the dependent child who sought it was under or over the age of 18 years.  When the visa application was lodged the applicant was one week short of his 18th birthday.  A letter from the applicant which accompanied the application stated:

“3:      The Minister has discretionary power under the Act to waive Condition 8503 no further stay based on version of section 41(2A) of the Act effective 1 March 1999.”

That statement might amount to an implied request that the Minister exercise his discretionary power.  Alternatively, it may simply be an assertion as to the existence of the power upon which the applicant relies for the validity of his application.  In either event, the fact is that the Minister had not waived the condition at the time of lodgement of the application. 

5                     On 11 February 2002 the applicant was advised by letter that his application was determined to be invalid as the visitor visa granted to the applicant had the condition 8503, “no further stay”.  The letter referred to Subclass 802 as the “Family Subclass” rather than the “Child” subclass, but it was not submitted that this was a matter of any significance.  The letter went on to state that:

“An application for a waiver of the 8503 condition should be made before lodging a new application.”

6                     Instead of making an application to the Minister to waive the condition, on 15 February 2002 the applicant commenced these proceedings.  If that was a course which the applicant adopted on advice, then it may be that he was very poorly advised.  That is not, however, a matter which I should go into as it is irrelevant to the determination of the present question.  The Application for an Order of Review specifies that it is made under s 476 of some unnamed Act, but in the context it is clear that a reference to s 476 of the Migration Act was intended.  Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)(“the ADJR Act”) is also invoked.

7                     The application asserts that the decision given on 11 February 2002 by the Minister's delegate was incorrect and involved an error of law.  The grounds of the application are:

“1)      The delegate was not acting in good faith in making the decision;

2)         The decision was not reasonably capable of reference to the decision making power given to the delegate;

3)         That an exercise of a discretionary power in bad faith as per s 5 of the Administrative Decisions (Judicial Review) Act 1977; (sic)

4)         That there was no evidence to justify the making of the decision as per s 5 of the Administrative Decisions (Judicial Review) Act 1977.”

On 28 February 2002 a Notice of Objection to Competency was filed.  The grounds relied upon in support of the objection are:

            -           s 476 is not the source of any jurisdiction to review the decision sought to be challenged;

-                     the decision sought to be challenged is a “privative clause decision” as that term is defined in s 474(2) of the Migration Act; and

-                     Part 8 of the Migration Act in its current form excludes any jurisdiction under the ADJR Act that the Court would otherwise have in respect of a privative clause decision.

8                     The proceedings, including the Notice of Objection to Competency, are listed for hearing this morning.  On 7 March 2002 the applicant was directed to file and serve any amended application and affidavits on which he intended to rely on or before 11 April 2002.  That was not done.  On 22 April 2002 an affidavit of Mr George Fonua was filed and served.  The affidavit was objected to.  I rejected the affidavit on the grounds that its contents were either irrelevant or inadmissible.  Mr Vahaakolo appeared for himself with the assistance of an interpreter but without the benefit of legal representation.  He handed to me a document titled “Applicant's Submissions” which I gather was prepared with the assistance of Mr Fonua.  I will direct that a copy of that document be placed with the papers as it records the principal matters that Mr Vahaakolo wishes me to take into account in support of his application.

9                     Section 47(3) of the Migration Act provides that, for the avoidance of doubt, the Minister is not to consider an application for a visa that is not a valid application.  A decision that an application is not valid and cannot be considered is not a decision to refuse to grant the visa: s 47(4).  There are authorities, to which Mr Markus drew my attention, that a decision that an application is not valid is nonetheless a decision made under the Act relating to a visa, such that it was reviewable under the former s 475(1)(c) of the Migration Act: see Fifita v Minister for Immigration & Multicultural Affairs [2000] FCA 1719 (per Sackville J) and Soondur v Minister for Immigration & Multicultural Affairs [2001] FCA 124 (per Lindgren J).

10                  In NACO v Minister for Immigration & Multicultural Affairs [2002] FCA 474 I upheld the Minister's submission that ADJR Act review is not available in a case where the Minister's delegate determines that an application cannot be considered because it is invalid, as such a decision is not of an "administrative" character.  Alternatively, I held that if the decision is of an administrative character, then it is a privative clause decision in terms of s 474(2) of the Act, hence ADJR Act review is not available having regard to the provisions of clause (da) of Schedule 1 to the ADJR Act.

11                  In the present case, the Minister's delegate correctly concluded that the application for a Subclass 802 visa was invalid having regard to the provisions of s 46(1A) of the Migration Act.  The fact that the applicant may have impliedly requested a waiver of a clause 8503 condition at the same time as he made his visa application is beside the point.  The application is invalid unless the Minister had waived the condition prior to the lodgement of the application.  That had not occurred.  The statutory impediment to the making of an application had not been removed.  The applicant was thus not eligible to make the application.  It is not simply a case where an application form has been incorrectly or insufficiently completed.

12                  The terms of the Migration Act are such that the Minister's delegate was under an imperative obligation not to consider an application when the condition in question had not been waived.  It follows that the delegate's decision that the visa application could not be considered represented a correct application of the law to the facts, and was not attended by any error.

13                  This application, insofar as it is based on s 476 of the Migration Act or under s 5 of the ADJR Act, is incompetent.  There is jurisdiction in the Court to review decisions of the type under challenge under s 39B of the Judiciary Act 1903 (Cth), although the circumstances in which the Court may exercise that jurisdiction are restricted by the privative clause.  It is not necessary in order to dispose of this case to examine the impact of the privative clause on the jurisdiction otherwise arising under s 39B.

14                  Even if the present application for review is regarded as having been made under s 39B or even if leave to amend should be granted so as to make it clear that the application is made under s 39B, no entitlement to the relief sought has been established by the applicant.  Relief under s 39B is not available to require a decision maker to reconsider a decision which is legally correct and which is not attended by any jurisdictional error.

15                  There are two other matters which I should mention.  First, the applicant's written submissions invoke the Convention on the Rights of the Child.  However, s 47 of the Migration Act does not confer a discretion on the Minister.  The section imposes a duty on the Minister to consider, or not to consider, an application depending upon whether or not it is a valid application.  Issues such as the best interests of the child are irrelevant to that question. 

16                  Second, the applicant put to me that he is in a position where he now has to look after his father who is unable to work.  He tells me that his present application enjoys the support of one of his teachers who has assisted with his education.  I endeavoured to explain to the applicant that these are not matters which I can take into account, because it is not for me to decide whether the condition should be waived or whether the applicant should be granted a visa.  Those are matters for the Minister to decide and for the Minister alone.  My only authority is to determine whether the decision of the Minister's delegate that the application was not one which he could consider was legally erroneous.  For the reasons that I have given the decision was correct in law, hence the present application for an order of review must be dismissed with costs.

17                  The application is dismissed with costs.

Associate:

Dated:              22 May 2002