FEDERAL COURT OF AUSTRALIA

Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506

MIGRATION – where application for writs of prohibition and certiorari – where application for declaratory and injunctive relief – where remitted from High Court – where subject to ‘no further stay’ condition – where applied to waive condition – whether condition should be waived – whether compelling and compassionate circumstances – whether major change to circumstances – whether circumstances beyond control of prosecutrix – whether prosecutrix given opportunity to comment upon material before delegate – whether denial of procedural fairness.

EVIDENCE – where evidence goes to merits of the case.

Migration Act 1958 (Cth) s 41(2)(a)

Migration Regulations 1994 (Cth) r 2.05, 2.05(4), 2.05(4)(a), 2.05(4)(a)(2)

Kioa v West (1985) 159 CLR 550 cited

Thongpraphai v  The Minister for Immigration and Multicultural Affairs (2000) FCA 1590 cited

IN THE MATTER OF AN APPLICATION FOR A WRIT OF PROHIBITION AND CERTIORARI AND DECLARATORY AND INJUNCTIVE RELIEF AGAINST SENATOR THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ADRIAN BOYD (The delegate of the First Respondent); EX PARTE MARIA MAKERITA AUVA’A

Q 95 OF 2003

DOWSETT J

18 DECEMBER 2003

BRISBANE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER OF AN APPLICATION FOR A WRIT OF PROHIBITION AND CERTIORARI AND DECLARATORY AND INJUNCTIVE RELIEF

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.

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER OF AN APPLICATION FOR A WRIT OF PROHIBITION AND CERTIORARI AND DECLARATORY AND INJUNCTIVE RELIEF

REASONS FOR JUDGMENT

1                     On or about 30 September 2002, the present prosecutrix applied in the High Court for writs of certiorari and mandamus, declarations and for interlocutory injunctions directed to the first and second respondents.  On 18 June 2003 McHugh J ordered that the matter be remitted to this Court and that it proceed as if steps already taken had been taken here.  On 14 November 2003 the prosecutrix filed an amended application.  The matter has proceeded pursuant thereto.  The subject matter of the proceedings is a decision of the first respondent’s delegate dated 26 August 2002. 

2                     The prosecutrix was born in Samoa on 14 February 1971.  Her full maiden name was Maria Makerita Togafau Selafuti Tia.  On 13 July 2002 she married Kitiona Auva’a, an Australian citizen.  She claims that in 1999 she was living in a small village in Samoa.  All other members of her family had already migrated to Australia.  She expected to follow them as she no longer had family in Samoa.  She was unemployed and living in a home owned by her parents.  She was also receiving living expenses from her family.

3                     At some time in the first half of 1999 the prosecutrix was contacted by her sister who informed her that their mother was ill and that she should come to Australia.  The prosecutrix asked how she could do so but received no relevant response.  At a later stage, her father told her that he had contacted a family friend in Samoa who was a government official.  He said that this man would help her to obtain a passport to enable her to join her family in Australia.  The prosecutrix does not recall any mention of a visa.  The family friend was Galo Leniu who now lives in the United States.  He provided forms which the prosecutrix signed.  She understood them to relate to an application for a passport.  She does not recall signing any forms concerning a visa.  She denies attending any Australian consular office in Samoa.  About a week later she was told to go to the airport.  She there met Mr Leniu who gave her a passport saying, ‘your passport is ready.  It is time for you to catch a plane.  Your mum is very ill and needs you urgently.’  She recalls no conversation about an Australian visa and did not know that she needed such a visa.  When she arrived in Brisbane (on 4 April 1999), she thought that ‘I could stay forever’.  She does not recall any immigration officer telling her that she could not do so.  She has lived here since that time, and her parents have now sold the house in Samoa.

4                     The prosecutrix initially resided at 6 Michael Street, Carole Park and subsequently at Goodna.  She claims that at some stage, perhaps when she moved from Carole Park to Goodna, she lost her passport.  In early 2002, the prosecutrix fell pregnant and so required medical assistance.  At about this time she decided to marry the father of the child.  At this stage questions arose as to her residential status.  Her solicitor advised her to contact the Compliance Section of the Department of Immigration to obtain a temporary visa and to enquire about a permanent visa.  He subsequently advised her (as a result of advice received from the Department) that she had entered Australia on a visa which was subject to an “8503 condition”.  This condition is described as a ‘No Further Stay’ condition, meaning that it is a condition of the visa that:

‘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.’

5                     In other words, the prosecutrix must leave Australia before she can apply for any visa other than a protection visa.  Such a provision is authorized by par 41(2)(a) of the Migration Act 1958 (Cth) (the “Act”).  The section provides as follows:

‘(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 protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

(b)        a condition imposing restrictions about the work that may be done in Australia by the holder … .

(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).

(3)       In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.’ 

6                     Regulation 2.05 relevantly provides as follows:

‘(1)      …

(2)       …

(3)       …

(4)       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)        … ; and

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

7                     The regulation permits waiver of the 8503 condition if:

Ÿ                compelling and compassionate circumstances have developed since the grant of the visa in question;

Ÿ                the relevant person had no control over such circumstances; and

Ÿ                those circumstances have resulted in a ‘major change to the person’s circumstances’. 

8                     In subreg 2.05(4), the word “circumstances” is used with three different meanings.  In the introductory part of the sub-regulation, the word is used to describe collectively the conditions which will enliven the first respondent’s power to waive a relevant condition.  The word is then used in par 2.05(4)(a) to describe ‘compelling and compassionate’ factors which must have developed since the issue of the visa.  In subpar 2.05(4)(a)(ii), the word is used to describe the whole of the relevant person’s position, presumably to the extent that it is relevant to the issue of a visa.  The ‘compelling and compassionate circumstances’ must themselves result in a ‘major change’ to the person’s “overall” circumstances.  This requirement seems to contemplate a comparison of the relevant person’s position prior to the issue of the visa with his or her position as a result of the ‘compelling and compassionate’ circumstances.

9                     The prosecutrix’s request for waiver appears at pp 21-24 of the bundle of relevant documents.  In that document she sets out the circumstances surrounding her receipt of a passport to come to Australia, most of which circumstances I have already set out above.

10                  The last two paragraphs of her application are as follows:

‘I am now married and caring for my two step-sons.  My baby is due to be born in December 2002.  I do not have any relatives or friends in Samoa and I have no means of support if I return to Samoa as all of my family and all of my husband's family have left Samoa.  As all the majority of my family and my husband's family live in Australia, I respectfully request that Condition 8503 be waived so that I can apply for a Spouse Visa to remain with my husband and give birth to my husband’s child and rear that child in Australia with my two step-children.

I did not ever have a job in Samoa and I don’t know how I could obtain a job in Samoa.  My husband left Samoa about 17 years ago and my husband no longer has any friends or family in Samoa and does not know how he could obtain a job in Samoa having departed that country so long ago.  If we were forced to leave Australia we would prefer to go to my husband’s relatives in the United States or New Zealand but we do not know how to obtain a Visa to those countries.’

11                  The prosecutrix asserts that these circumstances must be viewed in light of the fact that when she entered Australia, she was unaware of the 8503 condition and believed that she could remain permanently.  It seems that the first respondent’s delegate understood that this was the prosecutrix’s case.  However he rejected the prosecutrix’s claims concerning such knowledge and belief, relying upon material obtained by him from the Australian authorities in Samoa (the “Samoan material”).  In particular, the delegate pointed out that:

Ÿ                the prosecutrix had previously lodged three unsuccessful visa applications;

Ÿ                she had signed a declaration on 29 March 1999, stating that she had been counselled concerning the 8503 condition; and

Ÿ                she had provided a letter from her employer advising that she had been granted two weeks’ leave to attend to her mother’s needs. 

12                  The second and third points are obviously inconsistent with the prosecutrix’s claim that she was unaware of the 8503 condition and with any expectation, at the time of leaving Samoa, that she would remain permanently in Australia.  The prosecutrix was not given an opportunity to comment on this material and disputes some or all of the matters raised therein.  She submits that she ought to have been given such an opportunity, that she was denied procedural fairness and that the decision should be set aside. 

13                  The prosecutrix ought to have been allowed to comment upon all material considered by the delegate provided that it was ‘…credible, relevant and significant to the decision to be made’.  See Kioa v West (1985) 159 CLR 550 at 629 (per Brennan J).  If the circumstances surrounding the prosecutrix’s knowledge and belief concerning these matters were relevant to the delegate’s decision, then he ought to have allowed her to make submissions about the Samoan material before deciding to reject her claims, relying on that material.  The question is whether such matters were relevant to the delegate’s decision.

14                  In order to perform his function, it was necessary for the delegate to identify the prosecutrix’s circumstances at the time the visa was granted, the allegedly compelling and compassionate circumstances arising thereafter and the effects of them on her.  Relevantly, prior to the issue of the visa, she was:

Ÿ                single;

Ÿ                the last member of her family living in Samoa;

Ÿ                not working; and

Ÿ                living in a house owned by her parents and being supported by her family.

At that time her family, or most of them, including her ailing mother, were in Australia. 

15                  The allegedly compelling and compassionate circumstances which ‘developed’ after the visa was granted appear to have been that:

Ÿ                the prosecutrix entered Australia on 4 April 1999 on a one-month visitor’s visa;

Ÿ                she has remained in Australia since that time;

Ÿ                her parents have sold the house in Samoa;

Ÿ                having arrived in Brisbane she thought that she could ‘stay forever’ and was unaware of the 8503 condition;

Ÿ                in early 2002 she fell pregnant;

Ÿ                the child was presumably born in December 2002;

Ÿ                the prosecutrix married on 13 July 2002;

Ÿ                her husband has no family in Samoa;

Ÿ                the prosecutrix has never worked in Samoa; and

Ÿ                the prosecutrix does not believe that she or her husband can obtain employment in Samoa.

16                  For the purposes of the regulation, the ‘compelling and compassionate circumstances’ may involve only one factor which is, itself, a relevant ‘major change’ or causes such a change.  Alternatively, more than one such factor may inter-act to bring about that result.  In either case, the ‘compelling and compassionate’ factor or factors may produce such result by inter-acting with other aspects of the relevant person’s situation.  It is not necessary that all factors, the combined effect of which produces the ‘major change’, should satisfy subreg 2.05(4).  It is only necessary that the relevant combination does so.  However that question may depend upon whether individual factors satisfy the requirements contained in the sub-regulation.

17                  The prosecutrix’s complaint of denial of procedural fairness relates only to the rejection of her claims that she believed that she could remain in Australia permanently and that she was not aware of the 8503 condition.  It seems that her belief that she was entitled to remain in Australia permanently arose at or after her entry into Australia, that is after the issue of the visa.  However this belief was based entirely upon assumptions made by her.  There is no evidence to suggest that any other person misled her or encouraged her to form this view.  It was open to her at any time to seek advice or to consult the department.  She chose to rely upon her uninformed assumptions.  Her belief was therefore a matter over which she had complete control.  In any event such belief did not result in any change in the prosecutrix’s circumstances.  She was at no time entitled to permanent residence.  As was pointed out by O’Loughlin J in Thongpraphai v The Minister for Immigration and Multicultural Affairs (2000) FCA 1590 at [12], it is possible that the prosecutrix’s realization of her misapprehension was a ‘developing’ circumstance.  However that circumstance did not contribute to any material change in her overall position. 

18                  As to her lack of knowledge of the 8503 condition, such ignorance must have commenced at the time at which the visa was issued and so cannot be a circumstance which arose thereafter.  In any event, if she chose not to inquire as to the terms upon which she was entering Australia, then any subsequent ignorance was a matter entirely within her own control.  Further, that approach in no way caused any change in her situation.  Her subsequent discovery of her error in this regard also cannot be seen as in any way changing her circumstances. 

19                  As I have said, any denial of procedural fairness concerned only the rejection of the prosecutrix’s claim that she believed that she could reside permanently in Australia and that she was not aware of the inclusion of the 8503 condition in her visa.  As neither claim could have advanced her case, each was irrelevant to the delegate’s decision.  It was faintly suggested that the delegate’s adverse view of the prosecutrix’s credibility may have affected his approach to the rest of her case.  I doubt whether there is any reason to so conclude, but in any event, the other aspects of her claim are also unmaintainable.  The prosecutrix’s conduct in entering Australia and remaining here was entirely within her own control, as were her marriage, pregnancy and the subsequent birth of her child.  She has no family in Samoa, but that was the case prior to the grant of the visa.  There is no reason to believe that her husband’s familial position has changed since that time.  As to the capacity of the prosecutrix to obtain employment in Samoa, she has never worked there.  Her husband left Samoa twelve years prior to the swearing of her affidavit dated 23 September 2002.  In her waiver application, she said that he had left Samoa seventeen years ago.  In any event there is no suggestion that his employability in Samoa has declined since the issue of the visa.

20                  That leaves only the sale by the parents of the house in Samoa.  That event occurred after the issue of the visa; it appears to have been a matter which was beyond the control of the prosecutrix; and it is possible that it has caused a change in her circumstances in that it is no longer available to her should she return to Samoa.  I doubt whether that change could properly be described as ‘major’.  Her parents will presumably continue to support her, and there are probably other houses available in Samoa.  However it is neither appropriate nor necessary that I deal with those matters for present purposes.  There is simply no reason to believe that the delegate rejected this claim or failed to take it into account.  There is nothing improbable about it.  Further, it was capable of relatively easy objective proof.  It is true that the delegate did not refer to the matter in his reasons.  It is probable that he treated it as of only marginal significance given the difficulty inherent in characterizing any change brought about by the sale as being ‘major’.  The prosecutrix has not suggested that the failure to mention this matter in the reasons justifies the inference that the delegate rejected her evidence on this score or that he failed to give appropriate weight to it. 

21                  The subject matter of the prosecutrix’s complaint of absence of procedural fairness is material which was not relevant to the delegate’s decision, although he may have thought otherwise.  In any event, accepting the prosecutrix’s case at its highest, and setting aside, for the moment, the sale of the house, no circumstance which emerged after the grant of the visa and over which she had no control, brought about any relevant change in her position.  No other view is available on the evidence.  Even if the matter were remitted to the delegate it would be, for all practical purposes, impossible for him to do other than refuse the application.  In the circumstances no purpose would be served by granting the relief sought.  As to the sale of the house, assuming that such sale was capable of being a ‘compelling and compassionate’ circumstance, there is no reason to believe that the delegate did not consider the matter on its merits.  It follows that there is no basis for intervening in that aspect of the case.  The application is dismissed with costs.

22                  I wish to add one further comment.  Before me, the respondent sought to read an affidavit which exhibited the material relied upon by the delegate and not provided to the prosecutrix. I excluded that material because I considered that it went to the merits of the case and so was not relevant for present purposes.  Nonetheless, that material offers substantial support for the delegate’s view that the prosecutrix’s evidence was misleading.  To be fair to her I should say that a possible explanation is that some other person, acting on her behalf, but without her knowledge, made serious misrepresentations to the Australian authorities in Samoa.  In either case, the matter deserves further investigation.

Associate:

Dated:              18 December 2003